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 CONTESTING THE LEGITIMACY OF LAW

Sin Wai Man*

The purpose of this article is to use the intense public debates of two legal issues - the
right of abode case and the Public Order Ordinance- as examples to show how the
legitimacy of law has been contested in Hong Kong. Adopting anapproach that separates
"law" into four components - legislative decisions, judicialdecisions, legislative process,
and judicial process - the article argues that the legitimacies of these components are
interrelated. A number of discourses employed in the debates which may have general
significance and be redeployed in future events will be identified, and how and why
they were adopted will be explained. It will be shown that a host of factors unique to
the post-colonialsetting of Hong Kong - the Special Administrative Region government
and the ProvisionalLegislative Council's perceived lack of legitimacy and the resultant
"ccolonialnostalgia", the common law's symbolism for the autonomy of Hong Kong,
an Occidentalistinclinationof viewing the West as the ideal Other, and a perceived
need of maintaininga Westernised legal system to attractforeign investments - along
with the more universal emphases on human rights and legality, have affected, and
been reflected in, the discoursesadopted in the debates.

Introduction

On 29 June 1999, the Standing Committee of the National People's Con-

gress (NPCSC) reinterpreted, on referral of the Hong Kong Government,
certain Basic Law provisions after the Court of Final Appeal's (CFA) suppos-
edly final decision in a right of abode case, thus effectively overruling the
latter's decision. In the summer of 2000, several "civil disobedience" demon-
strations were held to protest against the Public Order Ordinance (POO),
which was amended by the Provisional Legislative Council (PLC) in July
1997, after the government arrested several members of the Hong Kong Fed-
eration of Students for organizing, and participating in, a demonstration held
in protest of the NPCSC reinterpretation.'
One common point of these two events is that the legitimacies of differ-
ent components of "law" were challenged. The POO civil disobedience

Lecturer, Law School, City University of Hong Kong. I would like to thank Ng Kwai Hang and the
anonymous reviewer for their helpful comments.
South China Morning Post, 16 Aug 2000, p 5. The "civil disobedience" demonstrations were held
also to support several other students arrested for another demonstration in Apr 2000; see South
China Morning Post, 29 Sept 2000, p 3.
640 Sin Wai Man (2003) HKLJ

demonstrations, which were joined by some pro-democracy Legislative Coun-

cil members, represent explicit challenges to the legitimacy of a legislative
decision of the PLC. On the other hand, though the challenge to the authority
and legitimacy of the CFA in interpreting certain provisions of the Basic Law
may be more subtle, its long-term significance is more immense - as the chal-
lenge in the form of the NPCSC, a Chinese state organ, overturning the CFA
decision was posed by an organ external to the system of law in Hong Kong.
Importantly, such a challenge - unlike the challenge from the civil disobedi-
ence demonstrations in the POO incident which might be solved within the
present system by, for example, liberalizing the relevant law - could not possi-
bly be met by the present system as it itself caused damage to the system of
(common) law by establishing the NPCSC's superordinate hierarchical rela-
tionship over the CFA. Its long-term damage to the legitimacy of law may be
tellingly demonstrated by the following examples: the constant threats from
pro-China elements to seek NPCSC intervention in unfavourable CFA
judgements;' an academic's questioning of the CFA for imposing self-restraint
in adjudicating subsequent Basic Law cases to avoid risking another NPCSC
intervention;' and, more recently, while being rated as the world's freest economy
in a widely reported "Economic Freedom of the World Report", Hong Kong
continues to receive declining ratings for the integrity of its legal system.4
The purpose of this article is to use the debates of these two issues as
examples to show how the legitimacies of the different components of law -
the legislative process and a legislative decision in the POO case, and the
judicial process and a judicial decision in the right of abode case - may be
contested in Hong Kong. A number of discourses employed in the intense
debates of the two issues which may have general significance and be rede-
ployed in future events will be identified, and how and why they were adopted
will be explained. It should be noted that this article does not aim at giving a
full account of the debates in the two issues in which the legitimacy of the
law was challenged, and the account of the two events and the debates
involved may therefore appear to be selective and fragmented. It will be shown
that a host of factors unique to the post-colonial setting of Hong Kong - the
Special Administrative Region (SAR) government and the PLC's perceived
lack of legitimacy and the resultant "colonial nostalgia", the common law's
symbolism for the autonomy of Hong Kong, an Occidentalist inclination of

2 See, for example, South China Morning Post, 28 Jan 2001, p 3. The threats have never materialised
though.
Benny Tai, "Chapter I of Hong Kong's New Constitution: Constitutional Positioning and Reposi-
tioning" in Ming K. Chan and Alvin So (eds) Crisis and Transfrmiation in China's H-ongKong (Arrmonk:
M.E. Sharpe, 2002).
Ming Pao, 10 July 2003, p B2. The rating has dropped from 10 (out of a maximum of 10) in 1995 to 8.
3 in 2000 and 6.7 in 2001: Economic Freedom of the World: 2003 Annual Report (Fraser Institute, 2003),
p 8 8. Available at http://www.cato.org/catostore/EFW2003/EFW2003ch3-D-J.pdf (visited 10 july 2003).
Vol 33 Part 3 Contesting the Legitimacy of Law 641

viewing the West as the ideal Other, and a perceived need of maintaining a
Westemised legal system to attract foreign investments - along with the more
universal emphases on human rights and legality, have affected, and been
reflected in, the discourses adopted in the debates.
Before looking at the two events, some clarifications on the meaning of
the terms used and the approach taken are in order. Dyzenhaus argues that
the concept of "legitimacy of law" has been used in legal and political phi-
losophies to refer to both the legitimacy of "the content of particular decisions,
both legislative and judicial" and the legitimacy of "the process whereby these
decisions are made".' Following Dyzenhaus' approach, "law" is taken to com-
prise legislative decisions, judicial decisions, legislative process and judicial
process. It will be shown that there may be different degrees of legitimacy for
these components of law. "Legitimacy of law" is used to refer to the sum of the
legitimacies of these four components, and when it is necessary to discuss the
legitimacy of a particular component, for example, a judicial decision, it will
be so specified. Importantly, the legitimacies of the different components
may sometimes be interrelated and complement each other - for example, a
legitimate judicial process may grant legitimacy to an unpopular legislative
decision.6
Legitimacy is a concept that has been given very different meanings by
different theorists from different disciplines, which has led to great confusion
in its use.7 As the purpose of this article is to identify and explain the dis-
courses involved in the contestation of the legitimacy of law in the two
incidents, rather than passing judgements on the merits and validity of the
discourses themselves, Akomolafe's Weberian value-neutral sociological
definition of legitimacy as "the belief that some particular power is right or
proper"' is adopted. Each of the discourses identified (and the factors affect-
ing it) thus represents (part of) the basis on which such a belief of a particular
party is formed. Importantly, legitimacy is interrelated with the concept of
authority, which is "power that is exercised legitimately," and thus an act
that undermines the authority of an institution would also affect its legitimacy.
It is inevitable that there would be different beliefs in the rightness and
propriety of any of the four components of "law" and, thus, different levels of
legitimacy (or illegitimacy) as perceived by different parties in the society. In

David Dv:enhaus, "The Legitimacy of Legality" (1996) 46 University of Toronto Law Journal 130.
6 J. Gibson, "Understanding of Justice: Institutional Legitimacy, Procedural Justice, and Political
Tolerance" (19$9) 23 Law & SocietN Review 40).
David Beetham, The Legitimationof Power (Atlantic Highlands: Humanities Press International, 1991).
pp +-(,; See also Kaarlo Tuori, Critical Legal Positivism (Aldershot: Ashgate, 2002), pp 244-246.
Olusoi Akomolafe, "Legitimacy and Authority" in Frank N. Magil (ed) International Encwdopedia of
Sociology Vol.1 (London: Fitroy Dearbon, 1995), pp 722. Cf. Beetham, ibid., pp 9-15, who argues that
a normative assessment is inevitable even for a social scientific study of legitimacy. Webers view on
the "beliet in legality" as a source of legitimacy is discussed in a later subsection entitled "Legahtv"
9 Akomolafe, ibid.
642 Sin Wai Man (2003) HKLJ

this vein, the state of the overall legitimacy of a particular component - for
example, a legislative decision - is the result of the competition of different
beliefs held by different parties. There is no guarantee that the outcome will
always be the domination of one belief over another (ie a clear establishment
of legitimacy), as it is not uncommon that the society is fundamentally split
and competing beliefs may have comparable supports. In fact, given the di-
versity of modern society, no matter how dominating a belief may be it could
hardly ever enjoy complete support, and an established legitimacy may be
challenged and unsettled when social conditions change and new beliefs arise.
It will be shown, in the discussion of the two events, that there are various,
and sometimes contesting, beliefs in the rightness and propriety of judicial
and legislative decisions and judicial and legislative processes, as held by various
parties - namely, in the Hong Kong context, the Hong Kong people (with
very different views amongst themselves), the Hong Kong Government and
the Chinese Government.

Contesting the Legitimacy of the Public Order Ordinance

Acts of civil disobedience present perhaps the most symbolic challenge to

the legitimacy of law in modern societies. In 2000, several members of the
Hong Kong Federation of Students (HKFS) were arrested by the police for
allegedly participating in two different unauthorised assemblies in contra-
vention to the Public Order Ordinance (POO)."o The arrest provoked several
follow-up demonstrations by sympathisers of the students." Organisers
and participants of the demonstrations refused to abide by the requirements
in the POO of informing the police seven days prior to a public procession
of its details, such as the planned route, expected number of participants and
purposes. They claimed that they were exercising their right of civil obedience
to not comply with an illegitimate law. Heated debates on the legitimacy of
the POO ensued and the community was divided. Some of the discourses
employed at different stages of the debate - before and during the Legislative
Council debate on the POO in November and December 2000 - are discussed
below.

Politics in the Transition Period and ColonialNostalgia

In the early stage of the issue before the Legislative Council's debate, there
were two common discourses - the setting up of the 1995 POO as the ideal

10 Cap. 245, Laws of Hong Kong. See n above.

1 See, for example, Hong Kong Economic Times, 21 Aug 2000, p A29; South China Morning Post,
3 Oct 2000, 9 Oct 2000, p 1; 16 Oct 2000, p 2 .
Vol 33 Part 3 Contesting the Legitimacy of Law 643

alternative and the illegitimacy of the PLC - variously adopted by the parties
opposing the 1997 POO. The first discourse contends that the 1997 POO" is
a reversion of the pre-1995 "evil law"" and that the 1997 version should be
changed back to the 1995 version.' 4 In, for example, one of the civil disobe-
dience demonstrations organised to support the students, the major demand
was reported to be the restoration of the 1995 P00 5 and Martin Lee, Chair
of the Democratic Party and one of the several famous pro-democracy Legis-
lative Council members joining the demonstration, was reported to say that
the Democratic Party would discuss with other parties a proposal to introduce
a private member's bill in the Legislative Council to reverse the 1997 POO
back to the 1995 version. 6 The second discourse was adopted by HKFS, the
organisation to which the arrested students belonged and organiser of the
demonstrations which led to the arrests, and some of its supporters. They
argued that they did not accept the legitimacy of the 1997 POO for it was
made by the PLC, which was not popularly elected and therefore not
legitimate." These two common, and interrelated, discourses could be un-
derstood in the context of the political development in the transition period
and a common mood of "colonial nostalgia".
In 1995, the colonial POO, which gave the government tight control over
demonstrations, 8 was substantially liberalised by the late-colonial
government, to comply with the 1991-enacted Bill of Rights." The Chinese
government, discontent with Chris Patten's democratic reform in the final
years before the handover, was however unhappy with the substantial amend-
ments made in 1995. The NPCSC, subsequently, exercising its power under
article 160, Basic Law, found the 1995 version of the POO inconsistent with

12 Public Order (Amendment) Ordinance 1997 (Ordinance No.119 of 1997).

1 The last substantial pre-1995 revision was made in 1980: Public Order (Amendment) Ordinance
1980 (Ordinance No.67 of 1980).
'4 Public Order (Amendment) Ordinance 1995 (Ordinance No.77 of 1995).
'5 The Sun, 3 Oct 2000, p 1; Hong Kong Daily News, 3 Oct 2003, p A2.
16 Apple Daily, 3 Oct 2000, p Al. Lee is one of the pre-handover Legislative Council members who did
not join the PLC. Similar demands were also made in Democratic Party, "Press Release" (17 Aug
2000) available at http://www.dphk.org/2003/news/index.aspiCommentlD= 1157 (visited 1 Oct
2003) and Citizen Party, "Press Release" (9 Oct 2000) available at http://www.citizensparty.org/law/
publicordere.htm (visited 1 Oct 2003).
17 Hong Kong Federation of Students "Press Release" (27 Aug 2000) (in Chinese), "Press Release"
(4 Nov 2000) (in Chinese); both collected in its submission dated 21 Nov 2000 to Panel on Security,
Legislative Council [CB(2) 347/00-01(07)] http://www.legco.gov.hk/yrOO-01/chinese/panels/se/
papers/347cO7.pdf (visited 24 Feb 2003); Chen Yuchang, "Gongmin kangming jingshen kejia" [In
Praise of Civil Disobedience], Ming Pao, 5 Oct 2000; Zhu Jiling, "Wuju qiangquan zhenli bishen"
[Undeterred by the Power, Truth Will Prevail], Ming Pao, 25 Aug 2000).
18 See Roda Mushkat, "Peaceful Assembly" in Raymond Wacks (ed) Human Rights in Hong Kong (Hong
Kong: Oxford University Press, 1992) and Legislative Council Secretariat "A Note on Provisions
Relating to the Regulation of Public Meetings and Public Processions in the Public Order Ordi-
nance (Cap. 245) Prepared by the Legal Service Division" (2000) [L.C. Paper No. L.S. 2 1/00-01],
available at http://www.legco.gov.hk/yrOO-0l/english/panels/se/papers/ls2le.pdf (visited 22 Feb 2003).
'9 Hong Kong Bill of Rights Ordinance (Cap. 383, Laws of Hong Kong),
644 Sin Wai Man (2003) HKLJ

article 8, Basic Law 0 and decided not to adopt the 1995 POO as post-handover
Hong Kong law." The impending SAR government then issued a consulta-
tion paper in April 1997 to solicit views on how the 1995 POO should be
amended.22 Instead of recommending an overhaul of the ordinance or a re-
versal to the pre-1995 version, the Chief Executive's Office proposed changes
to the requirements of authorisation from the police and the grounds for ban-
ning an assembly. These were subsequently incorporated into the Public Order
(Amendment) Ordinance 1997, enacted by the PLC and made effective from
1 July 1997.
One major point of contention at the early stage of the debate was the
changed nature of the requirement of giving seven days' notice to the police in
the 1995 and 1997 POOs, and most of the civil disobedience demonstrations
had pointedly given the police less than seven days' notice to bring this point
home. The 1997 POO specifies that a public procession is authorised, and thus
allowed to be held, if the organiser notifies the police seven days before it is
held" and obtains from the police a notice of no-objection, which is taken to
have been issued if the Commissioner of Police has not in fact issued a notice of
objection within a specific time." In contrast, the 1995 POO provides that a
public procession is taken to be authorised once notification to the police has
been made, unless the Commissioner of Police issues a notice of prohibition to
the organizers according to section 14. In both POOs, if a procession is banned
("prohibited" in the 1995 POO and "objected to" in the 1997 POO), both
organisers and participants may be convicted of organising or taking part in
an "unauthorised assembly", the maximum penalty for which is five years
imprisonment. Parties opposing the 1997 POO argued that there was an im-
portant difference between the notification requirements in the two POOs -
the 1995 POO is a genuine notification system and assembly is as of right,
while the 1997 POO in fact requires application (or licensing) and assembly is
not as of right." But this point aside, it could be argued that, as in both POOs

20 It provides that pre-handover laws, including ordinances, "shall be maintained, except for any that
contravene this Law ... "
21 See "Decision of the Standing Committee of the National People's Congress on Treatment of the
Laws Previously in Force in Hong Kong in accordance with Article 160 of the Basic Law of the
Hong Kong Special Administrative Region of the People's Republic of China", Annex 2; repro-
duced in Vol.1, Laws of Hong Kong.
22 Chief Executive's Office, Civil Liberties and Social Order: Consultative Document. (Hong Kong: Chief
Executive's Office, 1997).
23 POO, s 13A. The police have discretion to accept shorter notice.
24 Ibid., s 14.
2 Ibid., s 14(4).
26 Ibid., s 17A(3).
27 See, for example, n 17 above; Democratic Party (n 16 above); Citizen Party (n 16 above); and Tu
Jinxin (James To), "Yanke di gongan tiaoli: yue baoanju juzhang shangque" [The Harsh POO - A
Response to Raymond Wong, Deputy Secretary for Security] Ming Pao, 18 Oct 2000. James To is a
pro-democracy Legislative Council member.
Vol 33 Part 3 Contesting the Legitimacy of Law 645

the police would have wide power to disallow a public procession" and there is
no change to the requirements of authorisation and the length of time for noti-
fication (seven days), both POOs have in fact failed to adequately protect the
freedom of assembly and thus the 1995 version isnot an ideal alternative to the
1997.29 This view that the 1995 POO was not really the ideal alternative in fact
became the dominant view amongst those who opposed the 1997 POO in the
Legislative Council debate in November and December 2000,30 and it was re-
ported that they had then broadly agreed that changes needed to be made in
the following three areas: length of time of notification, threshold of number of
participants in an assembly for it to require notification, and penalties.
Moreover, in the legislative debate for the 1995 POO pro-democracy Legisla-
tive Council members were also not entirely satisfied with the 1995 POO and
had proposed several amendments which were voted down.32 It should thus be
clear that while the 1995 POO might be slightly better than the 1997 POO, it
could hardly be justified as an ideal alternative.

28 In 1995 on grounds of public safety or public order; in 1997 on grounds of national security, public
safety, public order or protection of the rights and freedoms of others: s 14(1) of the two POOs.
However, this difference was not a major ground of opposition in the early stage of the debate.
29 In the later stage of the debate, Martin Lee argued that the 1997 POO's notification requirement
amounted to a licensing system:
"(The Secretary for Security and the Secretary for Justice said that the notice of no objection
was not a licence. Let us see what difference there is between a notice of no objection and a
licence. With regard to the licence, first, the organizers have to apply to the police for a licence;
second, the police can withhold the issue of licence temporarily; third, if the organizers go
ahead with the event without a licence, they will be committing an offence. The question is:
Who has the power to prohibit these activities? The answer is very simple: the police. Let us
look at this example. According to the provisions of the existing legislation, the organizers have
to notify the police in advance, and the police can raise objection. If the relevant persons carry
out the relevant activity despite the police's objection, they are committing an offence. If we
ask the same question, that is, who is going to prohibit these public processions, the answer is
still the police. Thus, in the eyes of the organizers of these activities and processions, there is no
difference at all between a licence and a notice of no objection." [Hong Kong Hansard: Reports of
the Meetings of the Legislative Council of Hong Kong. Session 2000/01 (Hong Kong: Government
Printer, 2000/01), p 2309].
It may be argued that had Lee applied the same argument to the 1995 POO, he would have
concluded that the 1995 POO, which also requires notification to the police and gives the
police power to object ("prohibit" in the 1995 POO), was also requiring licensing and therefore
not quite the ideal alternative to the 1997 POO as he had implied in his call for its reversal. See
n 16 above.
30 See, for example, "The Bar's Submissions on the Right of Peaceful Assembly or Procession", available
at http://www.legco.gov.hk/yrOO-Ol/english/panels/se/papers/b345e0l.pdf (visited 6 Oct 2003); "Hong
Kong Human Rights' Submission" (in Chinese), available at http://www.legco.gov.hk/yr00-01/chinese/
panels/se/papers/483c02.pdf (visited 6 Oct 2003); and the record of the Legislative Council motion
debate in Dec 2000, Hong Kong Hansard: Reports of the Meetings of the Legislative Council of Hong Kong.
Session 2000/01 (Hong Kong: Government Printer, 2000/01), pp 2154-2254, 2265-2356.
31 Apple Daily, 26 Dec 2000, p A14.
32 Hong Kong Hansard:Reports of the Sittings of the Legislative Council of Hong Kong. Sessions 1994/95
(Hong Kong: Government Printer, 1994/95), pp 5658-5685.
646 Sin Wai Man (2003) HKLJ

The fact that HKFS and its supporters based their denial of the legitimacy of
the 1997 POO on the lack of legitimacy of the PLC" and the rather
uncritical call for the restoration of the 1995 POO in place of the 1997 POO at
this stage could be accounted for by the perceived difference in the legitimacies
of the respective legislative processes for the two POOs. The legitimacy of a
legislative process may be affected by the legitimacies of the institutions it is
composed of - the legislative body, and the government, which is responsible
for the drafting and introduction of legislative proposals - and the practices it
adopts. 4 Lo Shiu Hing has argued that procedure legitimacy - referring prima-
rily to the method of formation and representativeness of a political institution
- is a major source of political legitimacy for a political institution. 5 Procedure
legitimacies of both the PLC and the SAR government would compare
unfavourably to those of their pre-handover counterparts. The PLC was per-
ceived to lack procedure legitimacy as it had no directly-elected seats at all and
was formed by the Chinese Government to replace the virtually fully directly-
elected pre-handover Legislative Council."6 While there seemed to be a common
misperception at this stage of the debate that the 1995 POO - made in July
1995 by the 1991-1995 Legislative Council, which, though not fully elected,
had 18 directly-elected seats out of a total of 60 - was made by the virtually fully
directly-elected 1995-1997 Legislative Council, 7 either pre-handover Legis-
lative Council's procedure legitimacy would still have been (perceived to be)
higher than that of the PLC. With regard to the procedure legitimacy of the
government, although full-scale democracy has admittedly been lacking for
both the pre-handover colonial government and the post-handover SAR
government, the late-colonial government, Lo argues, had been able to claim

n Indeed, in the right of abode case discussed below the fact that the two Immigration (Amendment)
Ordinances in the right of abode case were made by the PLC was also seen by Margaret Ng, a pro-
democracy Legislative Council member (of the pre-handover Legislative Council and the
post-handover first and second terms of the Legislative Council, but not the PLC), as a key problem.
She argues: "The right-of-abode sage is rooted in the No.3 Immigration Amendment Ordinance
passed without real scrutiny or consultation by a Beijing-selected [PLC]. It was drafted with the
purpose of excluding people from the SAR with little respect for their rights, fairness or the prin-
ciples of sound legislation." Margaret Ng, "Ruling Shows Rights Must Be Respected", South China
Moming Post, 15 Jan 2002.
3 A properly conducted consultation may be one such practice that affects the legitimacy of the legis-
lative process. It goes beyond the scope of this article to discuss the recent National Security Bill
controversy, but it may be noted that the public's perception of the (lack of) legitimacy of the Bill
seems related to the (lack of) legitimacy of the government and the manner the formal consultation
was conducted by the government.
3 Lo Shiu-hing, Governing Hong Kong: Legitimacy, Communication and Political Decay (New York: Nova,
2001).
36 Ibid., pp 161-163.
3 See Hong Kong Federation of Students (n 17 above) and Zhu (n 17 above). For an account of the
political development at this period, see James T. H. Tang "The Special Administrative Region
Government and the Changing Political Order in Hong Kong" in Norman Miners, The Government
and Politics of Hong Kong (Hong Kong: Oxford University Press, 1998).
Vol 33 Part 3 Contesting the Legitimacy of Law 647

procedure legitimacy through Chris Patten's introduction of more elected seats

to the Legislative Council," its sensitivity and responsiveness to public opin-
ion and its willingness to communicate with the governed." By contrast, the
SAR government has been losing procedure legitimacy, as it, under the leader-
ship of Tung Chee Hwa, has adopted a more authoritarian style of ruling (this
might not yet be the case in July 1997 when the 1997 POO was made, but what
is important is it might still have affected the perception of those who opposed
the 1997 POO in 2000) and the popularly-elected pre-handover Legislative
Council was replaced by the undemocratic PLC.W The higher procedure legiti-
macies for boththe pre-handover Legislative Council and government would,
in turn, influence the perception on the legitimacy of the legislative process for
the 1995 POO, which would, finally, translate into a higher legitimacy for the
1995 POO than the 1997 POO.
The setting up of the 1995 (colonial) POO as the ideal alternative to the
1997 (post-colonial) POO despite its obvious shortcomings could also be
understood as part of a common tendency in post-colonial Hong Kong to sim-
plify a complicated issue into a binary opposition of good and bad4 ' (or liberal
and illiberal, or democratic and undemocratic) with reference to the 1997
handover as the drawing line - which is referred to in this article as "colonial
nostalgia". Colonial nostalgia could be understood, apart from the point on the
lack of procedure legitimacy of the SAR government, from two perspectives -
the decline in administrative performance of the SAR government and the
overall worsening of the economy, and Occidentalization. The pre-handover
colonial government had fared much better, in terms of administrative effec-
tiveness and efficiency, than the SAR government, which has been embarrassed
by several administrative blunders.42 This lack of administrative performance

38 The legislative body is also regarded as part of the larger political order. See Norman Miners, The
Government and Politics of Hong Kong (Hong Kong: Oxford University Press, 1998), pp 130-154.
39 See Lo (n 35 above). The bill for the 1995 POO was introduced by Patten's government and passed
through the 1991-1995 Legislative Council in July 1995, when the method of formation for next
term's Legislative Council, election of which was to be held in September 1995, had already been
decided. It is therefore argued that the procedure legitimacy of the government in the 1995 POO is
not too different from that which Patten's government would eventually enjoy after the inception of
the 1995-1997 directly-elected Legislative Council.
40 See, for example, Alvin So, "Social Protests, Legitimacy Crisis, and the Impetus Toward Soft
Authoritarianism in the Hong Kong SAR" in Lau Siu-kai (ed) The First Tung Chee-hwa Administration:
The First Five Years of the Hong Kong SpecialAdministrative Region (Hong Kong: Chinese University
Press, 2002).
41 See Frances Olsen, "Feminism and Critical Legal Theory: An American Perspective" (1990) 18
InternationalJournal of the Sociology of Law 199, for a critique of a hierarchicalized binary opposition
(or dualism) in law.
42 For example, the opening of the Chek Lap Kok airport and the bird-flu crisis. See Agnes S. Ku, "The
Public Up Against the State: Narrative Cracks and Credibility Crisis in Postcolonial Hong Kong"
(2001) 18 Theory, Culture & Society 121; Elizabeth Lee, "Governing Post-Colonial Hong Kong:
Institutional Incongruity, Governance Crisis, and Authoritarianism" (1999) 39 Asian Survey 940;
and Sing Ming, "The Problem of Legitimacy for the Post-Handover Hong Kong Government" (2001)
24 International Journal of PublicAdministration 847.
648 Sin Wai Man (2003) HKLJ

of the SAR government, together with the poor performance of its economy
since the Asian financial crisis broke out in October 1997, may have caused the
general public to be reminiscent of the efficiency of the colonial governments
and the economic prosperity before the handover. There are many examples of
such colonial nostalgia; one of which is the point made by a commentator, in a
newspaper with an intellectual readership, that Hong Kong would have re-
sponded better in the Asian financial crisis had it broken out earlier before the
handover, so that advice from the Bank of England could have been sought."
Another reason for colonial nostalgia is Occidentalism. Occidentalism
refers to the tendency to construct the West (Occident) as an ideal Other to
the Orient. Things Western are idealised and preferred to things local." The
late-colonial period is constructed as the period when Hong Kong could per-
ceive itself as a Western(ised) society in the periphery of the cultural empire
of the West. Importantly, the connection is made with the (positive) cultural
imaginary of its being a (liberal) Western(ised) society in the late-colonial
period, and not the negative image of a (repressive) colony of a Western
power in earlier time. And to the Hong Kong people faced with the (more
repressive) communist regime of its motherland, such a positive cultural imagi-
nary is made possible by the existence of a Western style rule of law" generally
perceived to be fair and impartial, the democratic reforms by Chris Patten,

43 Lin Zhuogan, "Jiashe Xianggang Shi 'Laosilaisi"' [If Hong Kong Were a Rolls Royce], Hong Kong
EconomicJournal 27 July 2002.
4 Chen Xiao-mei, "Occidentalism as Counterdiscourse:'He-shang' in Post-Mao China" (1992) 18
Critical Inquiry 686; Sin Wai Man and Chu Yiu Wai, "Whose Rule of Law? Rethinking Postcolonial
Legal Culture in Hong Kong" (1998) 7 Social & Legal Studies 147; Edward Said, Orientalism (London:
Routledge & Kegan Paul, 1978).
4 "Rule of law" is itself a contested concept. David Clark, "The Many Meanings of the Rule of Law" in
Kanishka Jayasuriya (ed) Law, Capitalism and Power in Asia: The Rule of Law and Legal Institutions
(London: Routledge, 1999), p 32, has summarised a list of criteria for the existence of the "rule of
law" commonly agreed by Western theorists as: "[Laws] are promulgated to the public, and not
secret; are generally prospective not retrospective; are not impossible to comply with; are clear,
coherent with each other, and stable; that lawmaking is guided by the law; that persons who make
and administer laws are accountable, and actually do administer the law consistently in accordance
with the law ... [And there exist] institutional arrangements such as a judiciary independent of
government interference in individual cases, an independent legal profession, access to the courts,
the application of the principle of natural justice ... and impartial and honest law enforcement."
See also Jeremy Waldron, "Is the Rule of Law an Essentially Contested Concept (in Florida)?" (2002)
21 Law And Philosophy 137.
46 See Carol Jones "Politics Postponed: Law as a Substitute for Politics in Hong Kong and China", in
Kanishka Jayasuriya (ed) Law, Capitalism and Power in Asia: The Rule of Law and Legal Institutions
(London & New York: Routledge, 1999). Cf. Ming K. Chan, "The Imperfect Legacy: Defects in the
British Legal System in Colonial Hong Kong", (1997) 18 University of PennsylvaniaJournal of Inter-
national Economic Law 133, who argues the pre-handover administration of justice was not as fair as
it was popularly believed. For examples of unfair administration and racial discrimination in the law
of the earlier colonial period, see Christopher Munn, "The Rule of Law and Criminal Justice in the
Nineteenth Century" in Steve Tsang (ed) Judicial Independence and the Rule of Law in Hong Kong
(New York: Palgrave, 2001) and Peter Wesley-Smith, "Anti-Chinese Legislation in Hong Kong" in
Ming K. Chan (ed) Precarious Balance: Hong Kong Between China and Britain, 1842-1992 (Armonk:
M.E. Sharpe, 1994).
Vol 33 Part 3 Contesting the Legitimacy of Law 649

and the localisation and liberalisation (in terms of civil liberty) efforts in
the transition period.

Rights Discourse
The debate moved on to another level and more mature views emerged when
the Legislative Council debated the POO in November and December 2000.
One major delegitimation discourse then employed by those who opposed
the 1997 POO was to argue it was in contravention of the fundamental right
of peaceful assembly - one of the rights enshrined in the International Cov-
enant on Civil and Political Rights incorporated in article 39, Basic Law. As
the Basic Law is the constitution of the SAR, it is inevitable that a challenge
to the legitimacy of a lower law would be constructed in term of its inconsis-
tency with the Basic Law (ie constitutionality).
Edgeworth has argued that since the mid-1970s there has been a globalised
human rights discourse in which reference to other countries' laws is often
drawn." When the Security Panel of the Legislative Council debated the
Public Order Ordinance in November 2000, submissions by both the
pro-1997 POO camp and the anti-1997 POO parties also drew heavily on
the laws and practices of other countries, most of which were Western.49
The Bar Association, for example, in favour of relaxing the 1997 POO,
referred to the more liberal laws of a host of Western jurisdictions, includ-
ing Canada, Norway, Germany, the UK, Queensland and Seattle. 0 Shelly
Wright argues there has been a "control [by the West] over legal discourse,
including discourses of international law and human rights", which could
be traced to the history of the colonial domination of the West over the rest
of the world." Given this domination of the West and the fact that counter-
discourses - there are indeed challenges to the dominant Western conception
of human rights emerging from different parts of the world, with the Bangkok
Declaration in 1993 and debates on Asian values being the most relevant

4 One example isthe legal language policy. See Sin Wai Man, "Falu ji qian renren pingdeng? Xianggang
falu yuyan zhengce tantao" [Everyone isEqual Before the Law? An Inquiry into Hong Kong's Legal
Language Policy] (1999) 15 Hong KongJounal of Social Sciences 103.
48 Brendan Edgeworth, Law, Modernity, Postmodernity: Legal Change inthe Contracting State (Aldershot:
Ashgate, 2003), pp 182-190.
4 The submissions can be found at the Legislative Councilwebsite, http://www.legco.gov.hk/yro2-03/
englislpanels/se/papers/se_i.htm (visited 21 Feb 2003).
50 Hong Kong Bar Association, "The Bar's Submission on the Right of Peaceful Assembly or Proces-
sion" (23 Nov 2000) [CB(2)345/00-01(01)], available at http://www.legco.gov.hk/yrOO-01/english/
panels/se/papers/b345eOl.pdf (visited 21 Feb 2003).
51 Shelley Wright, International Human Rights, Decolonisation and Globalisation (London: Routledge,
2001), p 3 .
650 Sin Wai Man (2003) HKLJ

in the Asian context 2 - are often dismissed as mere excuses for, and by,
authoritarian states," it is perhaps inevitable that the rights discourse in
Hong Kong would be taking Western laws and practices as par excellence.
Such an Occidentalization inclination is, indeed, common even among the
judiciary. Yash Ghai, in commenting on the operation of the Bill of Rights
in the pre-handover context, argues that the judiciary has been reluctant
"to engage with cases from non-white Commonwealth countries - thus
ignoring, for example, the rich jurisprudence of the Indian, Pakistani and
Sri Lankan Supreme Courts"."

Challenge to the Authority of the Court of Final Appeal

In 1997 when Hong Kong was returned to China, Hong Kong was faced with
a swarm of right of abode seekers from China. The abode seekers claimed that
they, being children born in China of Hong Kong citizens, were entitled to
citizenship in Hong Kong by virtue of article 24 of the Basic Law, which
came into operation on 1 July 1997. The SAR government then had the
Immigration Ordinance amended on 10 July 1997, with retrospective effect
from I July 1997, by the PLC." The constitutionality of the amendments
was challenged, and it was decided, finally, by the Court of Final Appeal
(CFA) in favour of the right of abode claimants on 29 January 1999.6 The
CFA judgement attracted severe criticisms from Mainland Chinese scholars
and pro-China elements in Hong Kong. The CFA then, departing from com-
mon law tradition and on the request of the SAR government, issued a
clarification on its January ruling." The government subsequently claimed
in April that, according to its survey, about 1.67 million mainlanders would
be entitled to come to Hong Kong under the CFA ruling, and proposed to ask
the NPCSC to exercise its authority to reinterpret the relevant Basic Law

52 See, for example, Yash Ghat, "Asian Perspectives on Human Rights" in James T. H. Tang (ed)
Human Rights and International Relations in the Asia Pacific (London: Pinter, 1995).
53 Kenneth Christie and Denny Roy, The Politics of Human Rights in East Asia (London & Sterling:
Pluto Press, 2001); Anthony Langlois, The Politics ofJustice and Human Rights: Southeast Asia and
Universalist Theory (Cambridge: Cambridge University Press, 2001); Wan A. Manan, "A Nation in
Distress: Human Rights, Authoritarianism, and Asian Values in Malaysia" (1999) 14 SOJOURN:
Journal of Social Issues in SE Asia 359.
5 Yash Ghai, "Sentinels of Liberty or Sheep in Wolf's Clothing? Judiciary Politics and the Hong Kong
Bill of Rights" (1997) 60 MLR 459, p 463. See also Peter Wesley-Smith, "The Legal System, the
Constitution, and the Future of Hong Kong" (1984) 14 HKLJ 137; Peter Wesley-Smith, "The
Geographical Sources of Hong Kong Law" (1999) 29 HKL] 1.
5s Immigration (Amendment) (No.2) Ordinance 1997 (Ordinance No.122 of 1997) and Immigration
(Amendment) (No.3) Ordinance 1997 (Ordinance No.124 of 1997).
5 Ng Ka Ling and Others v Director of Immigration [1999] 1 HKLRD 315-360.
57 Ng Ka Ling and Others v Directorof Immigration (No. 2) [199911 HKLRD 577-578.
Vol 33 Part 3 Contesting the Legitimacy of Law 651

provisions, thus effectively overruling the CFA decision and denying most of
the 1.67 million the right to come to Hong Kong. Admittedly, the
government's main aim might not be to delegitimate the authority of the
CFA. However, by reversing the CFA's supposedly final decision, it did
challenge and effectively undermine the authority and legitimacy of the
CFA, and, by extension, that of the common law system in Hong Kong.
This section looks at the heated debate on whether it was legitimate for the
government to seek the NPCSC's reinterpretation and identifies and explains
three major legitimation / delegitimation discourses deployed.

Autonomy of Hong Kong and Common Law

In the debate on whether the government should seek the NPCSC's reinter-
pretation of the Basic Law provisions that had already been interpreted,
supposedly finally, by the CFA, one major discourse deployed concerns Hong
Kong's autonomy and the common law's contribution to it. Alarmed by the
government's claim in April 1999 that 1.67 million mainlanders would be
entitled to come under the CFA ruling, the majority of the public wanted to
turn most of them away." Most of the parties actively engaged in the debate,
except the political party "The Frontier", accepted that the CFA ruling had
to be changed;59 what they disagreed on was how. The government said there
were two options - reinterpretation of the relevant Basic Law provisions by
the NPCSC and amendment of them by the NPC - and the government
preferred reinterpretation.
To the pro-reinterpretation parties, the Basic Law must be reinterpreted
to stop the influx of the mainlanders. They emphasised that reinterpretation
had the advantage of time for two reasons. First, as reinterpretation could be

58 In a survey reported in the South China Morning Post, 13 May 1999, p 6, 60% of 1,003 respondents
polled opposed allowing those with right of abode to come to Hong Kong.
59 For those supporting amendment of the Basic Law, such as the Democratic Party and the Hong
Kong Human Rights Monitor, they accepted that the amendment should not have retrospective
effect and about 400,000 to 690,000 claimants who would have become entitled to come under the
CFA interpretation of Article 24, Basic Law before the earliest possible date for amendment in
April 2000 should be allowed to come, and about 1 million to 1.3 million would therefore be denied
the right to come. For reinterpretation supporters, they argued that an NPCSC (re)interpretation
could turn away almost all of the 1.67 million claimants. The Frontier did not make it clear whether
it would support reinterpretation, amendment or not changing the CFA decision; it questioned the
accuracy of the government figure of 1.67 million and argued that a decision could not be made
until more accurate figures were available. See, for example, Democratic Party, "The Democratic
Party Strongly Opposes Interpretation of the Basic Law by the Standing Committee of the National
People's Congress" (10 May 1999) in Johannes M. M. Chan, H. L. Fu and Yash Ghai (eds) Hong
Kong's Constitutional Debate: Conflict Over Interpretation (Hong Kong: Hong Kong University Press,
2000) pp 348-357; Hong Kong Human Rights Monitor (1999) "Presentation to Legislative Council
on Right of Abode Issue" (10 May 1999) in ibid., Chan et at pp 298-299; The Frontier "Statement"
(3 May 1999), in ibid., Chan et al pp 291-293; and James Tien Pei-chun, "Interpretation by the
National People's Congress Does Not Affect Investor's Confidence" in ibid., Chan et alpp 365-367.
652 Sin Wai Man (2003) HKLJ

done in June 1999 when the NPCSC would meet, while amendment would
have to wait until April 2000 when the next NPC meeting would be held,
only reinterpretation could avoid an influx of mainlanders between June
1999 and April 2000.6' Second, reinterpretation, its supporters argued, would
operate as a court judgement interpreting a statute and would thus take effect
from the first day when the Basic Law came into operation (1 July 1997),
whilst amendment could have the same effect only if it was made expressly
with retrospective effect. Reinterpretation could therefore practically shut
the door to all but a handful of the 1.67 million (while amendment without
retrospective effect could only stop about 1 million). To the reinterpretation
supporters, it was important that the Basic Law be reinterpreted to serve the
practicalfunction of defending Hong Kong from China (by curbing the influx
of the mainlanders).61
To the pro-amendment parties, the crux of the issue was, ideologically,
reinterpretation's damage to the autonomy of Hong Kong would be much graver
than would amendment, and it could not be compensated for by
reinterpretation's practicaladvantage over amendment. As a price for the greater
importance they placed on the ideological functions of the common law on the
autonomy of Hong Kong, they were prepared to accept that the amendment
should not operate retroactively, thus allowing an estimated 400,000 to
690,000, who would have qualified before the possible amendment in
April 2000 (by virtue of their parents having satisfied the seven years' residence
requirement by then), to come.62 Amendment was, to them, ideologically
preferable for two reasons.
First, the pro-amendment parties" drew a connection between a common
law style rule of law and autonomy. They rejected reinterpretation, as the
common law system, unlike the Chinese civil law system, recognises no
inherent jurisdiction of the legislative body (the NPCSC, in this case) to
interpret its own legislation. And in the spirit of judicial independence in
common law, the CFA's final judgement should not be overturned by another
body exercising (quasi-)judicial power." They instead supported amendment
without retrospective effect as it was not uncommon in common law for the

60 Hong Kong Government, "Speech by the Secretary for Security, Mrs Regina Ip,in the Legislative
Council's Motion Debate on Right of Abode" (19 May 1999) in ibid., Chan et al pp 334-338 at
p 3 37 .
61 Sin Wai Man, "Law, Politics and Professional Projects: The Legal Profession in Hong Kong" (2001)
10 Social & Legal Studies 493.
62 See n 59 above.
63 Most of the parties, except "The Frontier" whose stance was ambivalent, who opposed reinterpreta-
tion were supportive of amendment. They are therefore interchangeably referred to in this article as
anti-reinterpretation or pro-amendment parties, as appropriate in the context.
64 Citizens Party, "Citizens Party Chair Christine Loh's Letter to the State Council" (16 June 1999) in
Chan et at (n 59 above), pp 369-371; Hong Kong Bar Association, "Should the Common Law
System in Hong Kong Be Maintained?" (2 July 1999) in ibid., Chan et al, pp 394-396.
Vol 33 Part 3 Contesting the Legitimacy of Law 653

legislature to so amend a statutory law after a court judgement. The govern-

ment in turn responded that there was a "new constitutional order",6 1 fusing
common law and civil law. It argued:

"It is natural for those familiar with the common law system to object to a
non-judicial body [ie the NPCSC] revising an interpretation of the law
given by a final appellate court. However, Hong Kong is part of the People's
Republic of China, which has a civil law system. Under the mainland's
system, the ultimate power to interpret statutes is vested in the NPCSC
... The NPCSC's power to interpret the Basic Law may be exercised by it
in the absence of any reference to it by the CFA. It may also be exercised
in respect of any provision in the Basic Law."66

In taking the government's emphasis on civil law as an undesirable lean-

ing towards "one country" (and taking common law as symbolising "two
systems") in the "one country, two systems" formula that safeguards Hong
Kong's autonomy, the Bar Association lamented the government by asking,
in an article with the telling title "Should the Common Law System in Hong
Kong Be Maintained?": "Is the SAR government implying that in order to
emphasise more on the 'one country' aspect, we should embrace totally the
Chinese legal concept of legislative interpretation? Is there still room for 'two
systems' ?"67 The government's view was instead:

"The Basic Law is derived from article 31 of the Chinese Constitution. By

virtue of article 158(1) of the Basic Law the ultimate authority to inter-
pret the Basic Law is given to the NPCSC, not to the SAR courts. If the
NPCSC exercises its power of interpretation, it would not be depriving
Hong Kong of any legal powers granted to it, or diminishing Hong Kong's
autonomy.""6

To the anti-reinterpretation parties, it is important that the Chinese civil

law not be allowed to tamper with the common law type "rule of law" in
Hong Kong. Such an insistence on the sanctity of common law is under-
standable from the view that "it is not just 'law', but common law, which
carries with it cultural values, originated and inherited from the West, that
differentiates and defends Hong Kong from China."" To them, although it is

65 Hong Kong Government "Speech by the Secretary for Justice Ms Elsie Leung at the Legislative
Council House Committee Meeting" (18 May 1999) in ibid., Chan et a, pp 320-327 at p 324.
66 [bid., pp 321-322.
67 See Hong Kong Bar Association (n 64 above), p 396.
68 Emphasis added; see Hong Kong Government (n 65 above), p 325.
69 See Sin (n 61 above), p 49 4.
654 Sin Wai Man (2003) HKLJ

a legal reality that some civil law concepts have been introduced to Hong
Kong explicitly through the Basic Law,70 it is particularly objectionable that
the Hong Kong Government should invite the NPCSC to exercise its civil law
style inherent power of interpretation, which, they argued, was not made as
expticit in article 158, Basic Law as the government claimed. The NPCSC's
superordinate hierarchical relationship over the CFA, they feared, would thus
be established and confirmed. The fear of the negative ideological effects of
reinterpretation was best represented by the words of the Democratic Party:
"The HKSAR government's request to the NPCSC for [a re]interpretation to
overrule the interpretation of the CFA ... will cause severe harm to the system
of judicial independence of the HKSAR, and the principles of 'one country,
two systems' and 'high degree of autonomy' will also be seriously injured."'
The second ideological advantage of amendment concerns the involve-
ment of the Legislative Council. According to Basic Law, article 159, the
government must first obtain the consent of two-thirds of the members of the
Legislative Council before it could ask the NPC, a state organ of China, to
amend the Basic Law. In contrast, reinterpretation does not require the SAR
government, which itself lacks procedure legitimacy, to first seek approval
from two-thirds of the members of the Legislative Council before it asks the
NPCSC, also a state organ, to exercise its authority to reinterpret the Basic
Law. The participation of the Legislative Council in the case of amendment
would, in a way, mitigate the negative ideological implication that a Chinese
state organ's intervention would have on the autonomy of Hong Kong. The
Bar Association thus argued: "since the Legislative Council ... will take part
... it is certain that the views and wishes of the public can be reflected, thus
achieving 'Hong Kong people ruling Hong Kong'." 72 Although the govern-
ment finally asked for and secured the Legislative Council's support for its
decision, this gesture, to the anti-reinterpretation parties, failed to mitigate
its ideological damage to autonomy. They were critical of the fact that the
government pushed a motion of support (requiring a simple majority) for
reinterpretation through the Legislative Council without giving the latter
sufficient time for consideration (only two days were given from the tabling
of the paper to the passing of the resolution) or conducting proper public
consultation and only after it had already effectively decided to seek an N PCSC
reinterpretation." The government, on the other hand, responded by

70 One such instance is Art 158(3), Basic Law, which provides that the CFA has to seek NPCSC's
interpretation of certain provisions of the Basic Law before making a final decision.
71 See Democratic Party (n 59 above), p 3 54.
72 Hong Kong Bar Association "An Open Letter to the Citizens of Hong Kong on the Right of Abode
Case" (14 May 1999), in Chan et al (n 59 above), pp 383-385 at p 385.
3 For example, The Frontier, "Statement" (18 May 1999) in Chan et al (n 59 above), p 368.
Vol 33 Part 3 Contesting the Legitimacy of Law 655

emphasising that there was overwhelming support for reinterpretation from

the general public (who were understandably more concerned with the law's
practical function of fending off the 1.67 million mainlanders). It argued: "if
there is a strong demand in the community for the current problems to be
resolved, [a relinterpretation should not be seen as an 'interference' with Hong
Kong's autonomy, but as a response to that demand.""
To conclude, the difference between the reinterpretation supporters and
amendment advocates could be understood in terms of their different empha-
ses on practicality and ideology. To the former it was important that the Basic
Law be reinterpreted to defend Hong Kong from China in a practical sense -
fending off all but a handful of the abode seekers. In contrast, to the latter it
was more ideologically important that the autonomy of Hong Kong be main-
tained by not seeking the NPCSC's reinterpretation and instead involving
the Legislative Council in the process of amendment. In face of a "threat" of
intervention from China, common law - a Western system embedded with
Western values - was embraced by the ideologically minded as part of the
Hong Kong identity, differentiating and defending it from China."

Economic Success and Common Law

Another common discourse in the debate draws on the relationship between
law and economy. Those who opposed reinterpretation variously argued
reinterpretation would have adverse effect on investors' confidence in
Hong Kong. For example, Martin Lee was reported to say: "Foreign investors
would just wonder if the rule of law still exists in Hong Kong. If the rule
of law doesn't exist anymore, why don't they simply invest in mainland
China instead of Hong Kong?"" The government countered by stressing the
legality of reinterpretation, and explained to foreign investors the practical
difficulties Hong Kong would face with the increase of 1.67 million people
over its population of 6.7 million.
It is commonplace to say that Hong Kong's common law system is one of
the major reasons for its economic success. Law is perceived to contribute to
Hong Kong's economic success in two ways. First, in a Weberian vein,n rule
of law provides the predictability and calculability essential for the flourish-
ing of the local capitalist economy. Second, Hong Kong's common law system

7 See Hong Kong Government (n 65 above), p 3 2 6 .

7 On whether the common law values have taken root in Hong Kong, see Berry Hsu, The Common
Law System in Chinese Context: Hong Kong in Transition (New York: M.E. Sharpe, 1992).
76 Hong Kong Standard, 12 May 1999, p Bl.
7 Max Weber, Max Weber on Law in Economy and Society (Max Rheinstein ed) (Cambridge, MA:
Harvard University Press, 1954). For a revised version of Weber's thesis in the light of China's
recent economic development, see Albert H. Y. Chen, "Rational Law, Economic Development and
the Case of China" (1999) 8 Social & Legal Studies 97.
656 Sin Wai Man (2003) HKLJ

(together with other factors, such as a non-corrupt government, low tax rates
and the government's non-intervention policy) stands out in the region to
attract foreign investors to either invest in Hong Kong or use Hong Kong as
a gateway for entering China. In the reinterpretation debate, it was mainly
the latter - the connection between the common law style rule of law and
foreign investment - that was used as a (de)1egitimation discourse.
Enright et al argue:

"Hong Kong's legal system has been one of the major reasons for its success.
Business people have known that agreements would be enforced. Indi-
viduals have known that they would be free from coercion and persecution
by government. This has been important to the smooth operation of local
business, to the attraction of Hong Kong for overseas firms (including
firms from North America, Europe, and Japan, as well as overseas Chinese
firms from elsewhere in Asia)." 78

Business executives they interviewed cited maintaining a strong legal system,

staffed by independent and experienced legal personnel, as one of the priorities
for the post-handover government.79 It was perhaps this general attitude of the
investors that caused the anti-reinterpretation parties to argue foreign inves-
tors might abandon Hong Kong if reinterpretation was made. However, foreign
investors' reaction in the particular context of the reinterpretation debate was
actually more ambivalent. It was reported that a large number of foreign inves-
tors were convinced by the government's argument of practical difficulty and
became supportive of reinterpretation.Ao Their reaction may best be summarised
by the view of a foreign investor reported by Gren:

"As far as rule of law is concerned, the question is whether you can take a
case to court with reasonable efficiency with judges who are competent to
give an answer ... [Al possible reinterpretation of the Basic Law by the
[NPCSC] is 'abstract' and although not unimportant, seems distant from
commercial concerns.""

This reaction should not be surprising. As Amanda Perry" argues, it is

calculability and predictability provided by the rule of law, not the spirit of the

78 Michael J. Enright, Edith E. Scott and David Dodwell, The Hong Kong Advantage (Hong Kong:
Oxford University Press, 1997), pp 108-109.
7 Ibid., p 233.
8o Manuel Gren, "Foreign Investors Will Mark the Government's Performance on the Abode Row",
South China Morning Post, 9 May 1999; Sing Tao Daily News, 1 June 1999, p A2.
81 Ibid.
82 Amanda Perry, Legal System as a Determinant of FDI: Lessons from Sri Lanka (The Hague: Kluwer Law
International, 2001); Amanda Perry, "The Relationship Between Legal Systems and Economic
Development: Integrating Economic and Cultural Approaches" (2002) 29 Journal of Law and Society 282.
Vol 33 Part 3 Contesting the Legitimacy of Law 657

rule of law per se,11 that foreign investors are after. And it is unlikely that a
case concerning foreign investors would involve the Basic Law and, therefore,
be referred to the NPCSC for reinterpretation."' However, while the anti-
reinterpretation parties' argument of a connection between the rule of law
and foreign investment may be over-optimistic in this particular case, what
is important is the prevalence of such a perception, which could not be dis-
missed simply as an Occidentalist inclination, as it is not totally ungrounded.
Indeed, as Enright et at show,"5 Western investors may, everything being equal,
prefer the kind of calculability and predictability provided by a Western style
rule of law, with which they are familiar, to those provided by other culturally
unfamiliar ways, like guanxi (personal connections)." And such a Western
style of rule of law is, in the case of Hong Kong, provided by its common
law system. Therefore, given Hong Kong's relatively peripheral position in
the global economy and its dependence on its image as the one jurisdiction
in East Asia that has a track record of a Western style rule of law to attract
foreign capital aiming at the blossoming Chinese market to enter the tatter
through Hong Kong, it is understandable that the connection between the
rule of law and foreign investment (and, thus, economic success) would be
relied on as a legitmation / delegitmation discourse.

Legality
Before looking at how legality has figured in the debate, a brief account of
Weber's thesis that the belief in legality has become a general source of legiti-
macy for modern social orders (legal order included) is necessary. Weber
maintains that while there are various ways for legitimacy to be ascribed to a
social order - such as "a [traditional or customary] belief in the legitimacy of
what has always existed", "affectual attitudes, especially emotional, legitimising
the validity of what is newly revealed or a model to imitate" or "a rational belief
in [the social order's] absolute value" - they are not as important a source of
legitimacy as the belief in legality. 7 He argues: "Today the most usual basis of
legitimacy is the belief in legality, the readiness to conform with rules which

83 See n 45 above for meaning of "rule of law"

84 An interesting comparison may be made with Singapore where, while its government may have
been perceived as authoritarian and its rule of law biased against political opposition, foreign inves-
tors are still undeterred to invest as they are ensured their cases would be fairly dealt with by arbitration
and other institutional arrangements, instead of the judiciary. See Ross Worthington, "Between
Hermes and Themis: An Empirical Study of the Contemporary Judiciary in Singapore" 2001 Journal
of Law and Society 490, pp 503-505.
85 See Enright (n 78 above).
86 On law and guanxi, see Richard Appelbaum, "The Future of Law in a Global Economy" (1998) 7
Social & Legal Studies 171; Yves Dezalay and Bryant Garth, "Law, Lawyers and Social Capital: 'Rule
of Law' Versus Relational Capital" (1997) 6 Social & Legal Studies 109.
87 Max Weber, Sociological Writings (Wolf Heydebrand ed) (New York: Continuum, 1994), p 11.
658 Sin Wai Man (2003) HKLJ

ate formally correct and have been imposed by accepted procedure""" Accord-
ing to Cotterrell: "Weber is quite explicit: ... law is self-justifying. It requires no
appeal to moral or political values for its legitimacy. Its own systematic logical
structures provide its legitimacy. Law is accepted solely as a rational system of
rule.""' And the common features of a modern legal order that provide the
basis of such a belief in its own legality include: "a system of legal norms, devel-
oped by professional jurists, that bring order to existing social norms; a legislature
which creates laws that are generally valid and are formulated in the abstract;
and a judiciary and a government that are bound by these laws with regard to
application and execution.""
Echoing Weber's point on the belief in legality as a general source of le-
gitimacy for law in modern societies, one foremost issue debated in the right
of abode case was whether reinterpretation was "formally correct and ... im-
posed by accepted procedure."" The anti-reinterpretation camp argued that
reinterpretation would not be in accord with the only acceptable procedures
stipulated in article 158(3), Basic Law. The government responded that rein-
terpretation was procedurally correct in the "new constitutional order" that
fuses common law and civil law,92 and thus legal for the following reasons:
the Chief Executive had the authority to refer the relevant Basic Law provi-
sion to the NPCSC, as he was, according to articles 43 and 48(2), Basic Law,
responsible to the Central People's Government for the implementation of
the Basic Law; the NPCSC had, according to article 158(1), Basic Law, the
ultimate authority to interpret Basic Law; and the NPCSC would follow its
own rules of procedure in doing so."
Legality was, as shown by the concluding remark of the Secretary for Jus-
tice in her speech on reinterpretation to the Legislative Council, implicitly
regarded as the ultimate source, which could trump other considerations, of
legitimacy by the government:

"It is said that such an interpretation [by the NPCSC] would give rise to a
'perception' that the rule of law is being undermined, and judicial inde-
pendence interfered with. My answer to that is to emphasise that we should

I' lbid,, p 12.

89 Original emphasis; Roger Cotterrell, The Sociology of Law: An Introduction (London: Butterworths,
1992), p 156. On Weber', point of the irrelevance of moral and political values to law's legitimacy,
see also Dyzenhaus (n 5 above), p 149; Peter Bal, "Discourse Ethics and Human Rights in Criminal
Procedure" in Mathieu Deflem (ed) Habermas, Modernity and Law (London: Sage, 1996), p 73.
90Ibid., Bal, p 73,
91 See Weber (n 87 above), p 12.
92 See n 65 and quotation accompanying n 66 above.
93 See Hong Kong Government (n 65 above) and Hong Kong Government, "Speech by the Secretary
for Justice, Ms Elsie Leung, in the Motion debate on the Interpretation of the Basic Law in the
Legislative Council" (26 May 1999) in Chan er al (n 59 above), p 343-346.
Vol 33 Part 3 Contesting the Legitimacy of Law 659

pay more attention to the true legal position rather than to any 'misguided'
perceptions."94

Within the legal discourse, this "true position" of reinterpretation has in-
deed been confirmed by the CFA - who enjoys the highest and ultimate
interpretive authority in the legal discourse (at least when it is not adjudicat-
ing a Basic Law-related case) - in a subsequent case.9 This could perhaps
help to imprint a "belief" in the legality of reinterpretation in those who are
inclined to abide by the CFA interpretive authority (eg the Bar Association,
and the pro-democracy Legislative Council members who are legally trained),
but its effect on those less so inclined might be doubted. Moreover, even
if the CFA confirmation could change the public's belief in the legality of
reinterpretation, "belief in legality" is, as the discussion of the many discourses
in the two debates shows, and in contrast to Weber's thesis of its being the
ultimate source of legitimacy, but one of the many factors affecting the legiti-
macy of law - the belief that (a particular component of) law is right or proper
- in Hong Kong.

Conclusion

In the civil disobedience case, the legitimacy of the POO and the legitimacy
of the legislative process were deliberately challenged. In the right of abode
case, the authority and legitimacy of the CFA and the judicial process were
perhaps unintentionally, and collaterally, undermined by the NPCSC
reinterpretation. The important question is whether the legitimacy of law
will continue to be challenged. Although the present Legislative Council is
more democratically representative than the PLC, it will not become fully
democratic, at least until 2008 - before when its undemocratic method of
formation is dictated by Annex 2, Basic Law. Therefore, together with the
fact that the government has become more inclined to an authoritarian
style of ruling and lacks procedure legitimacy, the legitimacy of such an un-
democratic legislative process may still be questioned, as vividly demonstrated
in the recent controversy concerning the National Security (Legislative
Provisions) Bill.
As for the legitimacy of the judicial process, the government has repeat-
edly stressed that the ultimate authority of the NPCSC was invoked in the
right of abode case for the exceptionality of the situation and the magnitude

9 Emphasis added; see Hong Kong Government (n 65 above), p 326.

9 Lau Kong Yung & Others v Directorof Immigration 11999] 3 HKLRD 778.
660 Sin Wai Man (2003) HKLJ

of the problem. Although it stops short of promising never to seek the NPCSC's
interpretation of the Basic Law after a CFA ruling is made'96 it seems reason-
able to believe that the government would not resort to the same route lightly
in the future. Otherwise, the government's own political legitimacy may be
further tarnished should it be seen to be defying the rule of (the common) law
(of respecting the judgement of a final court) again.
Political parties and activists, frustrated with the blocked access to politics
for resolution of socio-political issues in a political order that lacks procedure
legitimacy, have routinely taken, or threatened to take, their issues to court to
test the constitutionality of the government's administrative and legislative acts
- which was indeed one of the claimed aims of the POO civil disobedience
demonstrations. This seems to reflect a faith in the legitimacy of the judicial
process - an important component of the legitimacy of law. But given the im-
portance placed on human rights by certain sectors of the society, a court ruling
unfavourable to a liberal interpretation of rights may further trigger challenges
to the legitimacy of the judiciary, thus transforming a question of the legiti-
macy of a particular legislation, the legislative process or a government
administrative act - which are all related to the lack of political legitimacy of
the government - into a question of the legitimacy of the judicial process.
Indeed, there seems to be increasing discontent over the judiciary as the
CFA has been viewed as becoming more conservative after its several rulings in
favour of the government in cases concerning the Basic Law and human rights
issues after the 1999 NPCSC reinterpretation.99 In commenting on a subse-
quent right of abode case, in which the CFA held for the government,o 10

Margaret Ng, a pro-democracy Legislative Councillor and barrister, lamented:

"The [dissenting] judgment of Mr Justice Bokhary is the only one in which
rights take centre stage and permeate every judgment."ior A newspaper edito-
rial similarly criticised: "The CFA has used reasoning that seems to go against
the principle of fairness."l02 Viewed in the context of the legitimacy of the

96 South China Morning Post, 31 Jan 2002, p 4.

9 See Jones (n 46 above). She argues the image of respecting the rule of law since the 19 70s had been
an important source of political legitimacy for the colonial government.
98 Jurgen Hahermas, Between Norms and Facts: Contributions to a Discourse Theory of Law and Democ-
racy (translated by William Rehg) (Cambridge: Polity Press, 1996), pp 382-383, writes of civil
disobedience: "These acts of nonviolent, symbolic rule violation are meant a. exprcvions of protest
against binding decisions that, their legality notwithstanding, the actors consider illegitimate in the
light of valid constitutionalprinciples." (emphasis added)
9 For example, the CFA upheld the constitutionality of a law that criminalizes defacing the national
flag and the SAR flag: HKSAR v Ng Kung Siu [1999] 3 HKLRD 907. See Tai (n 3 above) who argues
that the CFA has, since the 1999 NPCSC reinterpretation, taken a more conservative approach
towards human rights. Pre-handover judiciary had also been criticized for its conservatism in human
rights issues: see Ghai (n 54 above), p 466.
100 Ng Siu Tung & Others v Director of Immigration [2002] 1 HKLRD 561.
101 See Ng (n 33 above).
102 South China Morning Post, 11 Jan 2002, p 17.
Vol 33 Part 3 Contesting the Legitimacy of Law 661

judicial process, Bokhary's dissenting judgments'' could be understood as a

"safety valve 'draining' the discontent on the CFA" - as a dissenting judgement
gives the impression of fair representation and consideration of incommensu-
rable values and of "keeping alive choices for the future.'' But if the CFA's
"conservatism" is perceived to persist, the "safety valve" provided by dissenting
judgements may, at some stage, stop to function, as the rights-oriented parties
may then have lost faith that their views would be fairly represented and con-
sidered and would, in the future, prevail.
Further to the discussion of the POO incident that shows the perception
on the (lack of) legitimacy of a legislative process may affect the legitimacy
of its legislative decision, the discontent over the CFA could also be used to
show an inter-relationship amongst the legitimacies of the four components
of law. In a case where the constitutionality of legislation is challenged, the
judicial process will be the last component before, for example, a rights-
depriving decision is finalised, with the first step being the legislative process
that comes up with such a legislative decision. Thus, to the rights-oriented
sectors in the community, CFA decisions unfavourable to rights may not only
give rise to a doubt in their minds over the legitimacy of the judicial decision
itself, but may also raise and confirm their doubts over the legitimacies of the
other components of law, namely, the judicial process, the legislative process
and the legislative decision, and thus ultimately the legitimacy of the law
itself. On the other hand, there may be cases where the positions of the legis-
lative process and judicial process are reversed, with the legislative process
acting as the gatekeeper remedying the rights-depriving decisions of the
judicial process, thus saving the overall legitimacy of law."o' Thus, an insight
is gained, through the approach adopted in this article of separating "law"
into four components, that the legitimacies of legislative decisions, judicial
decisions, legislative process, and judicial process could be very different, but,
at the same time, interrelated.
The account of the debates in the two events discussed shows a host of
factors have affected, and been reflected in, the discourses deployed in the con-
testation of the legitimacy of a particular component of law. Some of these
factors are unique to the post-colonial setting of Hong Kong - the government
and the PLC's perceived lack of legitimacy and the resultant "colonial nostalgia",

103 Bokhary had in several other cases dissented with his colleagues to interpret the Basic Law more
bberilly to find against the government; see Cliff Buddle, "Bench\ Rebel With a Cause Begs to
Differ Again", South China Morning Post, 11 Jan 2002.
1k4John Alder, "Dissents in Courts of Last Resort: Tragic Choiccs." (2000) 20 OxfordJournal of Legal
Studies 224.
1os One example is the confirmation in 2002 ot the abolition of the common law rule of marital exemp-
tion in rape b) s II, Statute Law (1Iicellaneous Provisions) Ordinance 2002 (Ordinance No. 23 of
2002).
662 Sin Wai Man (2003) HKLJ

the common law's symbolism for the autonomy of Hong Kong, an Occidentalist
inclination of viewing the West as the ideal Other, and a perceived need of
maintaining a Westernised legal system to attract foreign investments - and
some are more general and universal to modern societies - the emphases on
human rights and legality. It could be expected that they will continue to figure
in the contestation of the legitimacy of law in Hong Kong, and this indeed
seems to be the case in the recent debate on the National Security (Legislative
Provisions) Bill. But the two case studies and the approach of taking legitimacy
as the result of the competition of beliefs warn against essentialising any of
these factors. Their roles, if any, and their relative "legitimation forces", in a
legitimacy debate would depend on the particular context. This could be illus-
trated by two examples: the rights (of family reunion) discourse was markedly
absent in the arguments of the major political parties in the rights of abode
debate in 199906 and legality, the belief in which Weber argues to be the
ultimate source of legitimacy, was but one of many factors affecting a percep-
tion of the legitimacy of the POO. Lastly, it is worthwhile to highlight two
crucial perceived images / functions of the common law - its symbolism of the
West and the ideological function of defending and differentiating Hong Kong
from China - which are perceived by some to keep Hong Kong's image, or
positioning, as a Western(ised) society'1 possible and the "one country, two
systems" principle viable, and therefore contribute especially to the legitimacy
of the common law, a Western(-originated) system embedded with Western
values.

106 Agnes S. Ku, "Hegemonic Construction, Negotiation and Displacement: The Struggle Over Right
of Abode in Hong Kong" (2001) 4 InternationalJournal of Cultural Studies 259. See also Sin Wai Man
and Chu Yiu Wai, "In the Name of Law: Legality and Morality in Postcolonial Hong Kong" (1999)
27 InternationalJounalof the Sociology of Law 185, who argue moral concerns were marginali:ed by a
discourse of legality in an earlier debate on right of abode in 1997.
107 For an interesting account on Hong Kong's recent search for a postcolonial identity between
"the national" and "the global", see Agnes S. Ku, "Postcolonial Cultural Trends in Hong Kong:
Imagining the Local, the National, and the Global" in Ming K. Chan and Alvin So (eds) Crisis and
Transformation in China's Hong Kong (New York: M E Sharpe, 2002).