Constitutional Law- Tutorial 2

Question 1
What is autonomy?
Being able to determine your own internal affairs in a meaningful way
o Domestic stuff
How much autonomy, instead of how independent
A question of degree -> what constitutes a higher degree of autonomy?
Each of them with relation to china
Six Criteria to access autonomy
Division of power between the branches
o Emphasis not on the separation, but on eachs relation to the Central
government
o Executive
IV BL
II BL relationship between central authority and HKSAR
16 vested with executive conduct administrative affairs
of the HKSAR on its own
15 central peoples government shall appoint the CE and
the principal officials in HK -> becomes controversial
under the new constitutional framework after 1997 -> for
such a long time ceremonial appointment is a convention
enact own law immigration policy, labor policy, independent
tax system
39 BL science and technology
o Legislative
Highly autonomous -> pass whatever law in HK, for HK
Power of NPCSC in the legislative process?
Art 17 -> NPCSC has the power to return the law if it
determines that the law contravenes with BL
o Judiciary
Art 90 -> HK vested with independent judicial power including
final adjudication power
Ng Ka Ling - Various people claimed PR in HK -> right of abode
Immigration Ordinance -> they have to have a piece of
paper before establishing they have the right of abode ->
the ordinance was unconstitutional -> panic that the CFAs
decision will lead to influx of people
CFA power -> it seems to put itself above the NPCSC
o CFA takes constitution, like BL as higher law than
the NPCSC -> claim that it is for the HK court to
determine whether the acts of NPCSC are
consistent with the BL
o BL is passed by the NPCSC which gave HK a
constitution under art 31 -> means it also gives HK
the power to declare other laws invalid
o Clash of constitutional structures
o Request by the HK government for clarification
Ng Ka Ling 2

Predominant provision test

NPCSC interpretation
o Political interference
Not bounded by the NPCSC decision
Extrinsic material will not be considered if the wording in
BL is clear

Chong Fung Yuen

One country takes precedence over two systems

Art 2 -> Autonomy is authorized by the central government -> implied
that whatever is authorized can be taken back
Art 12 -> enjoy high degree of autonomy
literal view -> authorize means authorize
originalist approach
Context -> high degree
White paper
Patriotism -> additional qualifications on the selection of judges and CE,
such requirements are not in the BL -> what counts as evidence of
patriotism?
o Not holding foreign passport just an example? Barely minimum
requirement?
What status does a White paper have?
o Not binding
o Represent the official view of central government and will probably
be adopted
Balancing judicial autonomy?

International involvement
o High degree in terms of sports, international trade

Constitutional entrenchment
o Meaningless if BL can be amended very easily in favor of the central
government
o Art 159 -> power of amendment is vested on the NPCSC
3 entities to propose amendment: NPCSC, State council and HK
unclear procedure -> areas of uncertainty
still untested area

Scope of power (HK Govt, both LegCo and Exco)

o Enact own law, own currency education system
o Legislative HK vs CHINA (not internal power eg. Pan democratic)
local passes a law, to what extent China has influence the pass of
power

Judicial independence/ separation of power (constitutional entrenchment)

o Immigration Ordinance
o Final adjudication subject to NPCSC interpretation

Independent dispute settlement mechanism

o
o

In case of conflicts for interpretation how would we resolve that

mechanism
Dispute in BL Art 158 NPCSC has final say on laws concerning
relationship between Authorities and Region, or concerning the
relationship between China and Region = excepted excluded provision
(tied to the question of judiciary)

Clear division of power (Exco, LegCo and Judiciary)

o To what extent the executive can implement economic policies
independent from Chinas oversight
Durability Independent financial system
HK no need submits $ to govt (financially independence)
Art 5 ensures HKs economic system as capitalist
How the executive is elected? the relationship of HK v China
NPCSC reserves the right to approve/ appoint (legitimately
must be accountable to China)
Issue of appointment through a relatively fair participatory
implementation. (Art 45, Annex 1, Chapter 2 and Chapter 4)
the power of appointment undermines autonomy
Cultural crash go through the appointment process base on
the British model of royal assent, monarch by convention will
not reject the consents if the people agreed. However, the
symbolic power only applies in the British model. In Hong Kong
BL it mention China has the power of appointment (not only
symbolic power but substantial power)
Have the power in education(art 136), economic, labour (art
137), sports etc) the constitutional structure is set up that
exectuvie has a wide power to implement internal affairs
o Judiciary final interpretation
Reference to Ng Ka Ling
o Legislature
The electoral process
Art 17 Hong Kong SAR has the power for legislate
independently. Distribution of power is passed need to be
reported to the NPCSC, the NPCSC will look at the law, if
determine the law passed by LegCo contravenes the BL
provision on affairs within the scope of CPG or HK China relation
can return the law (it can declare and return the law)
The importance of convention set up the Art 17 but depends
on whether there is an convention that NPCSC takes an active
role in scrutinizing the power.
***Residual Power
o whether an unstated power is vested in HK or China
o As not everything can be listed in the BL some power can be come
up (who has the authorities)
o Under BL Art 20 HKSAR may enjoy other powers granted by NPCSC
looks that dont have residual power. If not granted to HK explicitly
o In US constitution, it states that what ever power was not given to the
Central Govenrment is reserve to the state started with a state, out
of 30 territories (powers are first granted to the independent states
then to the Central govt)
Durability

uncertainties beyond the 50 years China thinks, after 50 years

would not need to have a separate system
Constitutional entrenchment to what extent those safeguards can be taken
away in such a way we can change the provision
o How safeguard can be easily taken away and how do we know
o Art 159 hard to amend?
o The power to amend and the power to propose an amendment
o The power to amend vest to the NPC, power to propose vest in the
NPCSC, State Council and HKSAR
o no amendnement of this law the NPC can amend HK law, but
who has the final say in interpretation of Art 159, who can define
established basic policies? still the NPCSC undermine autonomy
o

Ng Ka Ling
Whether certain people who call affiliation to Hong Kong has the right of
abode under Art 24
o Immigration Ordiance said if claim ROA one way permit is
needed, a fixed entitlement in order to show the PR status
o Whether the requirement is constitutional
Court eventually said people has the right of abode executive afraid and
seek for interpretation
o Distribution power
o Power of local court
o P9: the court is the interpreter of BL and when it interprets the BL
can declare other ordinary laws invalid (duty of the court) causes
uproar as believe that CFA is putting itself in an upper position
(cannot be right)
o Autonomy of the court CFA issue an clarification (placing itself in
a higher position of the NPCSC)
Ng Ka Ling No2: jurisdiction of the court and s158 (power of
interpretation vested in NPCSC) the court is backtracking,
under political pressure.
o Chong Fong Yuen came up an independent interpretation the
NPCSC interpretation is abt art 24(2)(3) but CFY is about 24(2)(1)
but different subsection (the old common law technique in
distinguishing)
o ***Ng Ka Ling assertion of jurisdiction by exploring common law
interpretation. **Through common law techniques takes back the
power
White Paper

What is the understanding of One Country, Two Systems expressed in the

White Paper?
o A fundamental objects of maintaining Chinas sovereignty, security and
development interests ad maintaining the long-term stability and
prosperity of Hong Kong
o Combine upholding the principle of one country with respecting the
difference of two systems
o Two systems is subordinate from the rights of one country. One country
is the basis of two systems.

Central govt authorizes high degree of autonomy. An interpretation of

autnomy as something that is authorizes
o People who administer Hong Kong needs to be patriotic, residual power
Hong Kong doesnt have
Is this understanding consistent with the past description of One Country,
Two Systems by Chinese officials?
o The country follows practices socialism, while Hong Kong and some
other regions practice capitalism.
o HK retain its capitalist system and enjoy a high degree of autonomy.
o Hong Kong people governing Hong Kong
o 2012 Woo Jin Tao said needs to be maintain a balance respect one
country and two systems and approximately equal amount in these two
aspects.
o In 2007 one country is prerequisite of two systems
o One country is the basis of two systems on paper (?)
o White paper is warning to the society, to remind those people with
extreme thoughts, completely independent and separate Hong Kong
from China impossible to operate without China
o Two ways to interpret, a question of history (when the OCTS is
formulated, marketed to HK the idea is descripted that two
different systems, completely separate historical dimension
o Crush of legal culture constitutionalism limits on power, the common
law approach is there is clearly define limits. Two distinct systems, can
the power be limited to established categories (foreign affairs, military)
a common law ways how limits on govts power works (needs to be
clearly stated if the category ofinterference is not found its ok. But
in China no crushes in legal culture (The differences in history and
legal culture)
Do you agree with the understanding of One Country, Two Systems
expressed in the White Paper?
Do you agree that the fundamental objectives of One Country, Two Systems
are to maintain Chinas sovereignty, security and development interests and
to maintain the long-term stability and prosperity of Hong Kong?
o Back to the fundamental question what is a constitution for?
Protecting rights and freedoms. Two different system. Crushes of legal
culture, limits on govts power, maintaining individual rights.
o

Is the high degree of autonomy of the HKSAR an inherent power or to run

local affairs as authorized by central leadership?
o Residual power
Should Hong Kong enjoy residual power
o Residual power power retained by a governmental authority after
certain powers have been delegated to other authorities
Should two systems be subordinate to on a par with one country
Have the newly established systems and mechanism mentioned in the White
Paper improved the implementation of BL?
Patriotism
o If written in a white paper difficult to exclude the negative
connotations
o Level of generality what kind of patriotism?
o Pessimistic: allies with all the central authorities

Optimistic: There is a legal basis that officials need to be patriotic

nationality requirement, ceremonial, basic, minimal and fundamental
(underlying assumptions)
Status of White Paper
o Issued by informationa Office of the State Council not NPCSC
o Not binding in HK Courts only a report, no constitutional status
o It is not as sinister as people think it is not a law, the governments
point of view, the court is still independent and up to them to interpret
the basic law according to the common techniques
o If the language of BL is unclear, the court MAY look at extrinsic
materials
o