Sources of law and legal traditions
According to art 18 of the BasicLaw, the laws in force in the HKSAR include: the Basic Law; the laws previously in force in Hong Kong such as the common law, rules of equity, ordinances, subordinate legislation and customary law; the laws enacted by the legislature of the HKSAR; and national laws.[176] Before examining each category in detail, we much first clarify the status and application of the Constitution in the HKSAR.
3.1 The Constitution
The Constitution[177] is not mentioned explicitly to be one of the sources of laws of the HKSAR. However, it is unthinkable that the Constitution does not enjoy any legal status in the system of laws of the HKSAR, which is itself built upon the Chinese constitutional system though it is given a special treatment.
As stated above, art 31 of the Constitution is the source and constitutional foundation of the Basic Law. Various provisions of the Basic Law also refer to national institutions such as the NPC, the Standing Committee of the NPC (SCNPC) and the Central People's Government (CPG). The powers of these conÂstitutional organs are defined by the Constitution and these provisions must be applicable to the HKSAR. One strong example is the power of the SCNPC to interpret the Basic Law. Article 158 of the Basic Law provides that the power of interpretation of the Basic Law â€?shall be vested in the SCNPC'. The Court of Final Appeal of the HKSAR (HKCFA), in clarifying the power of the SCNPC to interpret the Basic Law following the Committee passing its first interpretaÂtion on the Basic Law,[178] recognised that the power â€?originates from art 67(4) of the Chinese Constitution and is contained in art 158(1) of the Basic Law itself.'[179]
The relationship between the Basic Law and the Constitution is still unclear. The Basic Law only provides:
[T]he systems and policies practised in the HKSAR, including the social and economic systems, the system for safeguarding the fundamental rights and freedoms of its resiÂdents, the executive, legislative and judicial systems, and the relevant policies, shall be based on the provisions of the Basic Law.[180]
It may be implied that for matters outside these areas, the Constitution will still be applicable.[181] There is no case in which the courts of the HKSAR have directly applied the provisions of the Constitution to resolve a legal dispute and the legal status of any such applicable provision is still not clear.
Nevertheless, the Constitution must be a source of law in the HKSAR and provide at least the background or boundary for common law to develop in the HKSAR.3.2 BasicLaw
There is no question that the Basic Law is a source of most other sources of law in the HKSAR, including the common law. However, there has been concern about the validity of the BasicLaw. Article 1 of the Constitution provides that �the socialist system is the basic system of the PRC' and art 5 provides that �no laws or administrative or local rules and regulations may contravene the Constitution.' However, the Basic Law has a provision which seems to be in direct contradiction with the above provisions of the Constitution. Article 5 of the Basic Law provides that �the socialist system and policies shall not be practised in the HKSAR, and the previous capitalist system and way of life shall remain unchanged for 50 years.' This is believed to be saved by art 31 of the Constitution which allows the NPC to make law in light of specific conditions to prescribe the systems to be instituted in the HKSAR. However, some considered that this might not be sufficient to remove the uncertainty over the validity of the Basic Law. Therefore, the NPC passed another resolution together with the Basic Law providing expressly that the BasicLaw �is constitutional as it is enacted in accordance with the Constitution of the PRC and in the light of the specific conditions of Hong Kong.'[182]
There is also a dispute on the nature of the Basic Law. Within the Chinese legal system, the Basic Law is a national law passed by the NPC; second in the hierarchy of laws, it is subject only to the Constitution. This, the courts of the HKSAR recognise. However, the HKCFA has also asserted that the Basic Law is the Constitution of the HKSAR.[183] Referring to the Basic Law as â€?a ConstiÂtution' has been repeatedly criticised by Chinese legal scholars as there cannot be another document other than the Constitution itself that can take this label.[184] By referring to the Basic Law as â€?a Constitution', the HKCFA established for itself the power to review any legal instrument in the HKSAR including legislative acts of the NPC and the SCNPC.[185] As well as receiving strong criticism of Chinese legal scholars, the HKCFA position caused the HKSAR Government to seek clarÂification of the judgment from the Court.
Even though the clarification may not have been very effective, it is likely that in the future the HKCFA courts will not exercise their jurisdiction to review legislative acts of the NPC and the SCNPC on the ground of their compatibility with the Basic Law.33 However, that does not prevent the courts of the HKSAR to continue to act �as a constitutional check on the executive and legislative branches of government to ensure that they act in accordance with the Basic Law.'343.3 Common law and rules of equity
Article 8 of the Basic Law provides that the laws previously in force in Hong Kong shall be maintained and these include the common law and rules of equity. In addition, art 84 of the BasicLaw provides that the courts of the HKSARmayrefer to precedents of other common law jurisdictions. This allows the common law legal system of Hong Kong to maintain its connection with the common law world. As Chief Justice Andrew Li stated, �compared to many common law jurisdictions, Hong Kong is a relatively small jurisdiction. It is of great benefit to the Hong Kong courts to examine comparative jurisprudence in seeking the appropriate solution for the problems which come before them.'35 The doctrine of precedent is a fundamental feature of any common law legal system. It does not contain any substantive principles but provides the background operational rules of any common law legal system. It �gives the necessary degree of certainty to the law and provides reasonable predictability and consistency to its application. Such certainty, predictability and consistency provide the foundation for the conduct of activities and the conclusion of business and commercial transactions.'36
Before the transfer of sovereignty, the Judicial Committee of the Privy CounÂcil was the final appellate court of Hong Kong. Under the new constitutional order, Hong Kong has its own court of final appeal, the HKCFA. The doctrine of precedent has to adapt to such changes in Hong Kong's judicial system.
Besides the general principles that a decision of a superior court is binding on a lower court and a superior court is bound by its own previous decision, the doctrine of precedent in the HKSAR features the following principles.First, decisions of the Privy Council on appeal from Hong Kong before 1 July 1997 continue to be binding in the HKSAR after the Basic Law came into effect on 1 July 1997. Second, decisions of the Privy Council on non-Hong with the Basic Law are of no effect and are invalid. Under it, the courts of the Region have independent judicial power within the high degree of autonomy conferred on the Region. It is for the courts of the Region to determine questions of inconsistency and invalidity when they arise. It is therefore for the courts of the Region to determine whether an act of the NPC or its Standing Committee is inconsistent with the Basic Law, subject of course to the provisions of the BasicLaw itself.'
33 J Chan, â€?Judicial Independence: A Reply to the Comments of the Mainland Legal Experts on the ConstiÂtutional Jurisdiction of the Court of Final Appeal,' in J Chan, HLFu and Y Ghai (eds), op. cit., p. 61; and Ng Ka-LingvHKSAR [1999] HKCFA 81; FACV000014A/1998, 26 February 1999.
34 NgKa-LingvHKSAR [1999] HKCFA81; FACV000014A/1998, 26 February 1999.
35 ASolicitorvTheLawSocietyofHongKong [2008] HKCFA15; FACV000024/2007,13March2008.
36 ASolicitorvTheLawSocietyofHongKong [2008] HKCFA15; FACV000024/2007,13March2008. Kong appeals and the House of Lords before and after 1 July 1997 are notbinding on the courts in the HKSAR and only have persuasive effect. â€?Their persuasive effect would depend on all relevant circumstances, including in particular, the nature of the issue and the similarity of any relevant statutory or constitutional provision.’[186] Third, the HKCFA may depart from previous Privy Council decisions on appeal from Hong Kong and its own previous decisions. However, the HKCFA recognises that it will approach the exercise of this power with great circumspecÂtion.
â€?It is a power which will be exercised most sparingly.’[187] Fourth, the Court of Appeal of the HKSAR is bound by its previous decisions but it may depart from a previous decision where it is satisfied that it is plainly wrong.[188] The Court of Appeal will only exercise this power if it is convinced that the contentions against its previous decision are so compelling. The plainly wrong test sets a high hurdle. It is accepted that â€?the departure from a previous decision in accordance with this test should be wholly exceptional and should only occur very rarely.’[189] DeciÂsions reached in ignorance of an inconsistent statutory provision or a binding authority, decisions with manifest error and decisions reached through seriously flawed reasoning are examples.In the 12 years since the transfer of sovereignty, by maintaining its link with the common law jurisdictions, the common law in Hong Kong continues to be vibrant.
3.4 Adaptation of ordinances and subordinate legislation previously in force
All Acts of Parliament and prerogative instruments applicable in Hong Kong during the colonial rule are not included as part of the laws of the HKSAR under art 8 of the Basic Law. As these �imperial enactments’ covered many important areas of laws, they have to be localised in the form of local ordinances.
Also, ordinances and subordinate legislation previously in force in Hong Kong cannot be maintained if they contravene the Basic Law. The SCNPC exercised its power under art 160 of the BasicLaw and declared that 24 ordinances or parts of ordinances were not adopted as the laws of the HKSARbecause they contravened the BasicLaw.[190] Its same decision stated:
[T]he laws previously in force in Hong Kong which have been adopted as the laws of the HKSAR shall, with effect from 1 July 1997, be applied subject to such modificaÂtions, adaptations, limitations, or exceptions as may be necessary to bring them into conformity with the status of Hong Kong after resumption by the PRC of the exercise of sovereignty over Hong Kong and with relevant provisions of the Basic Law.
Names, terms and expressions appearing in the laws previously in force in Hong Kong that are adopted as the laws of the HKSAR are also required to be construed or applied in accordance with the principles of substitution stated in the decision, mainly for the purpose of removing any implications of British sovereignty, elimÂinating anything that infringes Chinese sovereignty and recognising institutional changes under the new constitutional order.[191]
The Hong Kong Reunification Ordinance,[192] enacted immediately after the establishment of the HKSAR, reproduces the rules in the decision of the SCNPC. The HKSAR Government introduced the adaptation of laws program to bring the legislation enacted before 1 July 1997 into conformity with the Basic Law and Hong Kong's status as a special administrative region of the PRC, thereby enactÂing adaptation ordinances. The entire statute book will be reviewed to identify adaptation issues and Bills, with the previous legislation adapted â€?on a provision- by-provision basis by textual amendment'.[193] At the end of 2004, 93 per cent of the work had been completed.[194]
3.5 Customarylaws
Article 8 of the Basic Law expressly provides that customary law will be mainÂtained. It is unclear whether customary law includes the Qing imperial codes as it only refers to customary law but not Chinese law and custom.[195] For disputes in relation to land in the New Territories, there is a statutory provision that the court has the power to recognise and enforce any Chinese custom or customary right affecting such land.[196] In other words, the Qing imperial codes will be applied.[197] Chinese law and custom are also preserved in various areas of personal laws by statutes. Examples include adoption,[198] marriage[199] and legitimacy of children.[200] Chinese law and custom are still applicable to personal relationships commitÂted before an appointed date set by the statute which is also the date of the introduction of modern law to replace the customary law.
Related to customary law, art 40 of the Basic Law expressly provides that �the lawful traditional rights and interests of the indigenous inhabitants of the New Territories shall be protected by the HKSAR.' The HKCFA recognised that the traditional rights and interests of the indigenous inhabitants of the New
Territories include �various property rights and interests such as exemption from Government rent and rates in respect of certain properties held by indigenous villagers and benefits relating to land granted to male indigenous inhabitants under what is known as the small house policy.'[201] This list is not exhaustive. However, the political rights to vote and to stand as candidates in elections for village representative to the exclusion of others could not be derived from these rights and interests.[202]
3.6 Laws enacted by the legislature of the HKSAR
Article 11 of the Basic Law provides that no law enacted by the legislature of the HKSAR shall contravene the Basic Law. For laws not in conformity with the provisions of the Basic Law �regarding affairs within the responsibility of the Central Authorities or regarding the relationship between the Central Authorities and the HKSAR', the SCNPC may return the law in question but shall not amend it. Any law returned shall immediately be invalidated. This invalidation shall not have retroactive effect, unless otherwise provided for in the laws of the HKSAR.[203] The courts of the HKSAR also have thejurisdiction to examine whether legislation enacted by the legislature of the HKSAR is consistent with all the provisions of the Basic Law and, if found to be inconsistent, to hold them to be invalid.[204]
Legislation enacted by the legislature of the HKSAR also cannot contravene the provisions of the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong. These provisions are incorporated into the Basic Law by art 39 of the Basic Law[205] and implemented through Cap 383 of the HKSAR Bill of Rights Ordinance.[206] In other words, these provisions are given â€?constituÂtional force'.[207] If any legislation restricts a right protected by provisions of the ICCPR as applied to Hong Kong, the courts of the HKSARwill review whether the restriction satisfies the constitutional requirements for restriction.[208] The requireÂments include that the restriction must be prescribed by law (the â€?prescribed by law' requirement) and the restriction must be necessary in a democratic society in the interests of any one of the prescribed legitimate purposes (the necessity requirement). The prescribed by law requirement mandates the principle of legal certainty. To satisfy this principle, the legal rules must be adequately accessible to the citizen and must be formulated with sufficient precision to enable citizens to regulate their conduct. The necessity requirement involves the application of the proportionality test. The proportionality test is formulated in these terms: (1) the restriction must be rationally connected with one or more of the legitimate purposes; and (2) the means used to impair the right in question must be no more than is necessary to accomplish the legitimate purpose in question.
Concerning the language of legislation, the Basic Law provides that both the Chinese language and the English language are official languages of the HKSAR. Therefore, all legislation of the HKSAR is bilingual, issued in a Chinese and an English version.60 Both the English language text and the Chinese language text of a local ordinance are equally authentic. The provisions of a local ordinance are presumed to have the same meaning in each authentic text. Where a comparison of the authentic texts of an ordinance discloses a difference of meaning which the rules of statutory interpretation ordinarily applicable do not resolve, the meaning which best reconciles the texts, having regard to the object and purposes of the ordinance, will be adopted.61
3.7 National laws
National laws of the Chinese legal system in general are not applicable in the HKSAR except for those listed in Annex III to the Basic Law.62 These laws are mainly related with national matters such as defence,63 foreign relations,64 nationality,65 national symbols and identities,66 and territorial boundaries.67 Laws listed in Annex III are required to be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the HKSAR.68 The laws listed in Annex III can be applied locally by way of promulgation or legislation by the HKSAR. Excepting the Law of the People’s Republic of China on the National Flag69 and the Law of the People’s Republic of China on the National Emblem,70 all other national laws are applied locally by promulgation. These two laws are applied to the HKSAR by the National Flag and National Emblem Ordinance.71
The relative status between local ordinances and national laws applicable to the HKSAR is unclear. If a provision of a local ordinance contravenes any
60 The colonial government of Hong Kong started the bilingual legislation program in 1989. Authentic Chinese texts were able to be enacted for all pre-existing legislation which had been enacted in the English language only before the transfer of sovereignty.
61 Interpretation and General Clauses Ordinance, Cap 1, s 10B.
62 BasicLaw,art18.
63 Law of the People’s Republic of China on the Garrisoning oftheHongKong SpecialAdministrative Region.
64 Regulations of the People’s Republic ofChina ConcerningDiplomaticPrivileges andImmunities; Regulations of the People’s Republic of China Concerning ConsularPrivileges andImmunities; and Law of the People’s Republic of China on Judicial Immunity from Compulsory Measures concerning the Assets of Foreign Central Banks.
65 Nationality Law of the People’s Republic ofChina.
66 Resolution on the Capital, Calendar, NationalAnthem andNational Flagof the People’s Republic ofChina; Resolution on the National Day of the People's Republic of China; Law of the People's Republic of China on the National Flag; and Law of the People’s Republic of China on the National Emblem.
67 Declaration of the Government of the People’s Republic of China on the Territorial Sea; Law of the People’s Republic ofChina on the Territorial Sea and the Contiguous Zone; and Law of the People’s Republic ofChina on the Exclusive Economic Zone and the Continental Shelf.
68 Basic Law, art18.
69 Adopted at the Fourteenth Meeting of the Standing Committee of the Seventh National People’s Congress on 28 June 1990.
70 Adopted at the Eighteenth Meeting of the Standing Committee of the Seventh National People’s Congress on2March 1991.
71 Chapter2401.
provision of any national laws applicable to the HKSAR, it is not clear whether such provision will be of no legal effect or whether the courts of the HKSAR have the jurisdiction to invalidate such provision.72
The SCNPC may add to or delete from the list of laws in Annex III after consulting its Committee for the BasicLaw of the HKSAR (CBL)73 and the HKSAR Government. In the event that the SCNPC decides to declare a state of war or, by reason of turmoil within the HKSAR which endangers national unity or security and is beyond the control of the HKSAR Government, decides that the HKSAR is in a state of emergency, the CPG may issue an order applying the relevant national laws in the HKSAR.
4