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Forcing the Dance

Interpreting the Hong Kong Basic Law Dialectically
  • Robert J. Morris
Chapter
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Abstract

Article 158 provides an unambiguous delineation of the power of interpretation of the Basic Law: It lies in, and remains in, Beijing, with a small exception carved out for the courts of Hong Kong under certain carefully defined circumstances.1 Indeed, this small exception was designed to be a check on the otherwise plenary power that the National People’s Congress Standing Committee (NPCSC) has on the Mainland and was always so intended from the inception of the Basic Law. Attempts to obfuscate or finesse this straightforward declaration seem disingenuous.2

Keywords

Democratic Progressive Party Historical Materialism Special Administrative Region National People Supreme People 
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Notes

  1. 2.
    Hungdah Chiu, The Draft Basic Law of Hong Kong: Analysis and Documents (Baltimore: University of Maryland School of Law, Occasional Papers/Reprints Series in Contemporary Asian Studies, No. 5, 1988), 56–57.Google Scholar
  2. 3.
    A useful summary of the matter may be read at Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law, 2nd ed. (Hong Kong: Hong Kong University Press, 2001), 189–230.Google Scholar
  3. 4.
    Deng Xiaoping, Selected Works of Deng Xiaoping (1982–1992) (Beijing: Foreign Languages Press, 1994), 3:340.Google Scholar
  4. 6.
    The ideas contained in the chapter are enshrined in the PRC Constitution. See Weiyun Xiao, One Country Two Systems: An Account of the Drafting of the Hong Kong Basic Law (Beijing: Peking University Press, 2001), 4–6. Xiao is a professor of law at Peking University and an authority on PRC constitutional matters. He was educated in law at Leningrad University. He has written extensively on the Basic Law and is considered to be an authority. See, e.g., his co-authored article, “Why the Court of Final Appeal Was Wrong: Comments of the Mainland Scholars on the Judgment of the Court of Final Appeal,” in Hong Kong’s Constitutional Debate: Conflict over Interpretation, ed. Johannes M. M. Chan, H. L. Fu, and Yash Ghai (Hong Kong: Hong Kong University Press, 2001), 53–59. Jiang Zemin, Deng’s successor, upheld Deng Xiaoping Theory as the “Marxism of present-day China.” Quoted inGoogle Scholar
  5. Willem van Kemenade, “China, Hong Kong, Taiwan: Dynamics of a New Empire,” Washington Quarterly 21 (1998): 105, 110.CrossRefGoogle Scholar
  6. 10.
    Thomas A. Metzger, A Cloud across the Pacific: Essays on the Clash between Chinese and Western Political Theories Today (Hong Kong: Chinese University Press, 2005), 335–44, 360, 475, 683, 688, 692–93.Google Scholar
  7. 12.
    Marx, Karl, “Contribution to the Critique of Hegel’s Philosophy of Law” in Collected Works, ed. Karl Marx and Frederick Engels (London: Lawrence & Wishart, 1975), 3:178. For a Chinese scholar’s discussion of the Hegelian dialectic vis-à-vis the 道, seeGoogle Scholar
  8. John C. H. Wu, “The Struggle between Government of Laws and Government of Men in the History of China,” China Law Review 5 (1932): 53, 58. For a perhaps unintentional demonstration of the dialectic in Hong Kong’s history, seeGoogle Scholar
  9. Cindy Yik-yi Chu, “Back to the Masses: The Historiography of Hong Kong’s Recent Political Developments and the Prospects of Future Scholarship,” American Journal of Chinese Studies 10 (2003): 29. See alsoGoogle Scholar
  10. Chen-pang Chang, “The Dual Nature of Teng Hsiao-ping’s Thought,” Issues & Studies: A Journal of China Studies and International Affairs 25 (1989): 11, for an approach that deals with the subject as dialectic but does not overtly say so.Google Scholar
  11. 14.
    One of the basic studies showing the direct influence of Marx on Chinese Marxism, Mao Zedong, and Mao Zedong Thought is Adrian Chan, Chinese Marxism (London: Continuum, 2003).Google Scholar
  12. H. L. Fu and Richard Cullen, “National Security Law in Hong Kong: Quo Vadis A Study of Article 23 of the Basic Law of Hong Kong,” UCLA Pacific Basin Law Journal 19 (2002): 185, 190, allege that in China, the “market-based reforms of the last two decades have resulted in a rapidly waning Marxist influence, but Leninist approaches to governance and social control remain significant.” A general overview of Marx and Marxism, with attention to dialectics, but not specifically to the Chinese situation, may be read inGoogle Scholar
  13. M. D. A. Freeman, ed., Lloyds Introduction to Jurisprudence, 7th ed. (London: Sweet & Maxwell, 2001), 953–1039. See alsoGoogle Scholar
  14. Raymond Wacks, “Can the Common Law Survive the Basic Law?” Hong Kong Law Journal 18 (1988): 435 (the “interpreters” will be “party cadres” who will ensure that “they toe the party line”). Wacks did not see this as a necessary threat to the common law, justice, or democracy.Google Scholar
  15. 15.
    Chien-min Chao, “The Democratic Progressive Party’s Factional Politics and Taiwan Independence,” in Essays on the Cheng Shui-bian Presidency: Taiwan in Troubled Times, ed. John F. Copper (Hong Kong: World Scientific, 2002), 122.Google Scholar
  16. 17.
    A key article in this regard is Anne Norton, “Transubstantiation: The Dialectic of Constitutional Authority” University of Chicago Law Review 55 (1988): 458.CrossRefGoogle Scholar
  17. 18.
    Jordan, Ann D., “Lost in Translation: Two Legal Cultures, the Common Law Judiciary and the Basic Law of the Hong Kong Special Administrative Region” (1997) 30 Cornell International Law Journal 335, 349, interrogating whether the English “constitution” and the Chinese “憲法” are true cognates, even though they are routinely used to translate each other.Google Scholar
  18. 19.
    See, generally, Freeman, Lloyds Introduction to Jurisprudence, 264–69, 284–89. I use Weltanschauung because it comes closer than grundnorm to the Chinese mind-set, as I understand it, expressed by Deng when he speaks of the “communist way of looking at the world” (Selected Works of Deng Xiaoping, 1:257) and the “communist world outlook” (2:126). Actually, I would prefer to opt for wholly Chinese categories such as the one Deng uses: 法制 legal system. This would prevent the imposition of foreign categories upon Chinese thought and law. For a usage of “(dis)continuity” in a classic common-law sense, see Laurence Tribe, “Technology Assessment and the Fourth Discontinuity: The Limits of Instrumental Rationality,” Southern California Law Review 46 (1973): 617, (“[policy] analysis is often intended not only to aid the decisionmaker in choosing a course of action, but also to help him in persuading others of the justifiability and wisdom of his choice”).Google Scholar
  19. 20.
    Raymond Wacks, “‘One Country, Two Grundnormen’? The Basic Law and the Basic Norm,” in Hong Kong China and 1997: Essays in Legal Theory, ed. Raymond Wacks (Hong Kong: Hong Kong University Press, 1993), 151, 153.Google Scholar
  20. 25.
    Such as the survival of many laws passed during the final years of Britain’s colonial rule and the expected “through train” for sitting legislators. Beijing abolished the “through train.” Hence, as I will elaborate later, the continuity was of the dialectic itself not any particular common-law laws or practices subject to it. See J. M. Finnis, “Revolutions and Continuity of Law,” in Oxford Essays in Jurisprudence, ed. A. W. B. Simpson, 2nd ser. (Oxford: Clarendon Press, 1973), 44–76.Google Scholar
  21. 26.
    Peter Wesley-Smith, “Judges and Judicial Power under the Hong Kong Basic Law,” Hong Kong Law Journal 34, no. 1 (2004): 83. See also two recent attempts to reconcile similar problems, also using common-law analysis with resultant disjunctions:Google Scholar
  22. Simon N. M. Young, “Restricting Basic Law Rights in Hong Kong,” Hong Kong Law Journal 34 (2004): 109;Google Scholar
  23. Kemal Bokhary, “Justice and the Law: The Evolving Role of the Lawyer,” Hong Kong Law Journal 34 (2004): 133.Google Scholar
  24. 29.
    Johannes Chan, “Civil Liberties, Rule of Law and Human Rights: The Hong Kong Special Administrative Region in Its First Four Years,” in The First Tung Chee-hwa Administration: The First Five Years of the Hong Kong Special Administrative Region, ed. Siu-kai Lau (Hong Kong: Chinese University of Hong Kong, 2002), 116–17. Chan notes Hong Kong’s subservient culture that is “eager to please” and to be “regularly second-guessing the wishes of Beijing.” “The danger of subservient culture is that it is too easy to go beyond what the lord pleases in pleasing the lord” (114, 116).Google Scholar
  25. 34.
    Andrew J. Nathan and Perry Link, The Tiananmen Papers, compiled by Zhang Liang (London: Little, Brown, 2001), 432. Compare this rendition with the rather different version in Deng, Selected Works of Deng Xiaoping, 3:292.Google Scholar
  26. 35.
    Bertell Ollman, Dance of the Dialectic: Steps in Marx’s Method (Urbana: University of Illinois Press, 2003), 66; emphasis original.Google Scholar
  27. 44.
    As described contrapuntally to Chinese law, tradition, and order in Thomas B. Stephens, Order and Discipline in China: The Shanghai Mixed Court 1911–27 (Seattle: University of Washington Press, 1992), and inGoogle Scholar
  28. Stephens, “The Shanghai Mixed Court and the Ming Sung Umbrella Case 1926,” Australian Journal of Politics and History 33, no. 2 (1987): 77.CrossRefGoogle Scholar
  29. 45.
    Suzanne Pepper, “Hong Kong Joins the National People’s Congress: A First Test for One Country with Two Political Systems,” Journal of Contemporary China 8 (1999): 319, 343. See alsoCrossRefGoogle Scholar
  30. Christine Loh, “The CCP and the Rule of Law in Hong Kong,” Hong Kong Law Journal 25 (1995): 149, 153 (“Hong Kong remains culpably ignorant.”).Google Scholar
  31. 49.
    A point discussed and annotated in Anthony R. Dicks, “The Law-Making Functions of the Chinese Judiciary: Filling Holes in the Civil Law,” Comparative Law in Global Perspective: Essays in Celebration of the Fiftieth Anniversary of the Founding of the SOAS Law Department, ed. Ian Edge (Ardsley, NY: Transnational, 2000), 258. See alsoGoogle Scholar
  32. Sujit Choudhry, “Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation,” Indiana Law Journal 74 (1999): 820; andGoogle Scholar
  33. Tatu Vanhanen, Democratization: A Comparative Analysis of 170 Countries (London: Routledge, 2003).Google Scholar
  34. 51.
    Benny Tai, “Is ‘Final’ Really Final?” Hong Kong Law Journal 32 (2002): 25;Google Scholar
  35. P. Y. Lo, “Master of One’s Own Court,” Hong Kong Law Journal 34 (2004): 47. See alsoGoogle Scholar
  36. Shiu-hing Lo, “The Politics of the Court of Final Appeal Debate in Hong Kong,” Issues & Studies 29 (1993): 105, andGoogle Scholar
  37. David Faure, Colonialism and the Hong Kong Mentality (Hong Kong: University of Hong Kong, 2003).Google Scholar
  38. 53.
    Metzger, A Cloud across the Pacific, 127–28, 494, 666, 690; Edward J. Epstein, “China and Hong Kong: Law, Ideology, and the Future Interaction of the Legal Systems,” in The Future of the Law in Hong Kong, ed. Raymond Wacks (Hong Kong: Oxford University Press, 1989), 56–57, note 112 and accompanying text. See alsoGoogle Scholar
  39. Johannes Chan, “Some Thoughts on Constitutional Reform in Hong Kong,” Hong Kong Law Journal 34 (2004): 1—an example of good common law but not good dialectical, argument.Google Scholar
  40. 54.
    Yash Ghai, “Autonomy with Chinese Characteristics: The Case of Hong Kong,” Pacifica Review 10 (1998): 7, 21.CrossRefGoogle Scholar
  41. 55.
    Byron S. J. Weng, “Judicial Independence under the Basic Law,” Judicial Independence and the Rule of Law in Hong Kong, ed. Steve Tsang (Hong Kong: Hong Kong University Press, 2001), 48, 60. Ominously, Weng notes a debate that took place during the drafting of the Basic Law, in which fears were expressed that the NPCSC would take to itself the power to interpret the Basic Law “on its own initiative.” See, e.g.,Google Scholar
  42. Robert J. Morris, “The ‘Replacement’ Chief Executive’s Two-Year Term: A Pure and Unambiguous Common Law Analysis,” Hong Kong Law Journal 35, no. 1 (2005): 17. See Chan, Fu, and Ghai, Hong Kong’s Constitutional Debate. See also the more recentGoogle Scholar
  43. Johannes Chan and Lison Harris, eds., Hong Kong’s Constitutional Debates (Hong Kong: Hong Kong Law Journal, 2005). The NPCSC decision, June 26, 1999, “全国人民代表大会常务委员会关于《中华 人民共和国香港特别行政区基本法》第二十二条第四款和第二十四条第二款第 (三) 项的解释/Interpretations of the Standing Committee of the National People’s Congress to Paragraph 4 of Article 22 and Subparagraph 3 of Paragraph 2 of Article 24 of the Basic Law of the Hong Kong Special Administrative Region,” may be found in the July 15, 1999 中华人民共和国全国人民代表大会常务委员会公报/Gazette of the Standing Committee of the National People’s Congress of the People’s Republic of China, 325, with additional explanatory materials following at pp. 327–31.Google Scholar
  44. 57.
    See, e.g., Albert H. Y. Chen, “The Interpretation of the Basic Law—Common Law and Mainland Chinese Perspectives,” Hong Kong Law Journal 30, no. 3 (2000): 380. In 2005, the NPCSC rendered an interpretation of the Basic Law regarding the term of the chief executive who replaced the resigned Tung Chee-hwa. In doing so, the NPCSC published in Gazette of the Supreme People’s Court of the People’s Republic of China (中華人民共和 國全國人民代表大會常務委員會公報), no. 4 (2005): 301, 302, 304, 307, and 308, five separate articles, including the interpretation itself, explaining what could be termed the ratio decidendi for the decision—being, as it was, much more purposive and reasoned that any past interpretations, which were more in the nature of fiat. In addition, members of the NPCSC and others met representatives of Hong Kong in Shenzhen to discuss the impending decision and engage in a “dialogue” regarding the process. None if this in any way vitiated the presence of the dialectic in this situation. This was not deliberation in the “deliberative democracy” sense because, by this point, the decision had already been made. The Shenzhen meetings were merely the announcement. The NPCSC decision was not a common-law process, and it maintained the superstructure of direction from Peking under Article 158 of the Basic Law.Google Scholar
  45. 59.
    See, e.g., Bruce Bueno de Mesquita, David Newman, and Alvin Rabushka, “Words Have Meaning—or Do They?” in Red Flag Over Hong Kong, ed. Bruce Bueno de Mesquita, David Newman, and Alvin Rabushka (Chatham, NJ: Chatham House, 1996), 49–67.Google Scholar
  46. 73.
    Ibid., 11. This echoes the argument made in Yan Gao, “Wo Guo Bu Yi Caiyong Panli Fazhi Du [It Is Not Suitable for Our Country to Adopt the Legal Precedent System]” Zhong Guo Fa Xue [China Legal Studies] 41 (1991): 43, with particular reference to Hong Kong and Taiwan. See alsoGoogle Scholar
  47. Zongling Shen, “Judicial Precedents in China Today: A Comparative Study of Law” Asia Pacific Law Review, special issue, 1 (1994): 109, arguing that case law is undemocratic and retrospective. But “judge-made law” is the quintessence and definition of the common law.Google Scholar
  48. Peter Wesley-Smith, Constitutional and Administrative Law in Hong Kong, 2nd ed. (Hong Kong: Longman Asia, 1994), 38.Google Scholar
  49. 74.
    See Martin S. Flaherty, “The Canons of Constitutional Law: Aim Globally,” Constitutional Commentary 17 (2000): 205.Google Scholar
  50. 75.
    Chien-min Chao, “‘One Country, Tw o Systems’: A Theoretical Analysis,” Asian Affairs: An American Review 14 (1987): 107, 110, 112.Google Scholar

Copyright information

© Hualing Fu, Lison Harris, and Simon N. M. Young, eds. 2007

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  • Robert J. Morris

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