Constitutional System of the Hong Kong SAR

Albert Hung-yee Chen is Professor of Law at the Centre for Chinese Law, The University of Hong Kong.Po Jen Yap is Professor at the Faculty of Law, The University of Hong Kong.

• Preface Table of Cases Table of Legislation 1. Hong Kong’s Constitutional Journey I. Hong Kong before the 1980s II. Negotiation of the Sino-British Joint Declaration III. Drafting of the Basic Law IV. Developments in Colonial Hong Kong in the 1990s V. Major Constitutional and Legal Developments in the HKSAR A. Aborted Attempt to Implement Article 23 of the Basic Law, 2002–03B. Interpretations of the Basic Law by the National People’s Congress Standing Committee, 1999–2016 C. Pace of Democratisation, 2003–15 D. Failed Attempt to Introduce an Extradition Bill, 2019 E. Beijing’s Interventions on National Security Law and Electoral Reform, 2020–21 VI. Conclusion Further Reading 2. The Autonomy of the HKSAR and the Powers of the Central Authorities I. The Concept of Autonomy II. The PRC Constitution and the Basic Law III. The Continuity of Laws IV. ‘Plenary Power’ and ‘Patriots Ruling Hong Kong’ V. The Powers of the HKSAR VI. The Powers of the Central Authorities A. The First Interpretation B. The Second Interpretation C. The Third Interpretation D. The Fourth Interpretation E. The Fifth Interpretation F. The ‘Decision-Making’ Power of the NPCSC G. The ‘Decision-Making’ Power of the NPC H. Application of National Laws to the HKSARVII. Conclusion: An Analysis of ‘One Country, Two Systems’ Further Reading 3. The Political System: The Executive and the Legislature I. Hong Kong’s Political System: From Colony to SARII. The Chief Executive A. Executive Orders B. Emergency Powers C. Dual Accountability III. The Executive Council IV. Principal Offi cials, Bureaux and Departments V. Access to Information VI. The Legislative Council A. The Legislature and the Executive B. ‘Separate Counting’ Mechanism and Private Members’ Bills C. Powers and Functions VII. Independent Agencies VIII. Conclusion Further Reading 4. The Political System: Electoral Politics and Constitutional Changes I. The Electoral System II. Political Polarisation in Hong Kong III. The ‘Ruling Coalition’ in the HKSAR IV. The Dynamics of Constitutional Reform V. The Electoral Overhaul of 2021 A. ‘Patriots Ruling Hong Kong’ B. The Policy Behind the Electoral Reform VI. Conclusion Further Reading 5. Constitutional Role of the Judiciary I. Structure, Organisation and Composition of Hong Kong’s CourtsII. Constitutional Review of Local LegislationIII. Judicial Review of the Central Authorities’ (NPC/NPCSC) Acts IV. Judicial Treatment of NPCSC Interpretations V. Retrospective Effect of NPCSC Interpretations VI. Constitutional Signifi cance of the NPCSC’s Power of Interpretation VII. ‘Separation of Powers’ or ‘Executive-Led Government’? VIII. Conclusion: Coexistence of ‘Separation of Powers’ and ‘Executive-Led Government’ Further Reading 6. Constitutional Rights I. The Basic Law and the Hong Kong Bill of Rights Ordinance A. Ng Kung Siu and Article 39 of the Basic Law B. Article 39 of the Basic Law Post-Ng Kung Siu II. Effect of ICCPR Reservations and Section 11 of the BORO III. Judicial Use of Comparative LawIV. Proportionality Analysis V. CFA During Chief Justice Andrew Li’s Tenure A. Central–HKSAR Constitutional Relations B. Law and Order C. Declarations of Invalidity VI. CFA During Chief Justice Geoffrey Ma’s Tenure A. Central-HKSAR Constitutional Relations B. Law and Order C. Express Findings of UnconstitutionalityD. Constitutionality of Electoral Restrictions VII. CFA During Chief Justice Andrew Cheung’s Tenure VIII. Conclusion Appendix: List of CFA Cases with Express Findings of Unconstitutionality Further Reading 7. Constitutional Remedies I. Invalidation of Unconstitutional Laws II. Advisory Review or Provisional Determination III. Remedial Interpretation IV. Suspension Order V. Invalidation of Constitutional Law VI. Conclusion Further Reading 8. Conclusion I. A New Narrative for the ‘Hong Kong Story’ II. ‘Free Market Constitutionalism’ in Hong Kong III. Xi Jinping’s Speech on 1 July 2022 IV. Brief Overview of 25 Years of the HKSAR V. Conclusion Further Reading Index