PY Lo’s sole authored annotated commentary of the Basic Law is acclaimed in three forewords by Mr Justice Patrick Chan PJ, Professor Johannes Chan SC and by Mr Lester G Huang JP. Mr Huang describes Lo’s work as the fitting together of ‘pieces of a large jigsaw puzzle’ into one ‘masterly piece’. The reviewer agrees in particular with the last enthusiastic foreword. Having, as a non-expert international lawyer, perused in vain many times the terms of the Basic Law and read various articles and opinion pieces on the same, and now made a long march through key parts of Lo’s annotations on chapters I-IV, VII and VIII of The Hong Kong Basic Law, the reviewer begins to believe he has a clear and reliable picture of the relationship of Hong Kong constitutionally to the People’s Republic of China. Particularly remarkable is the care with which Lo presents the extensive mainland discussions of the Basic Law. The book reminds one very forcefully that the Basic Law, as the constitutional document of Hong Kong as well as being part of the Constitution of the PRC, inevitably has to be seen in this wider context. Indeed, Lo’s comparative materials include important discussion of the Soviet Union’s Constitution and addresses directly the place of legal interpretation in a communist system.
The most troubling and perhaps also controversial aspect of the Basic Law is that the power of interpretation is vested in the Standing Committee of the National People’s Congress (NPCSC). Lo devotes more than 50 pages to Art 158, including an introductory analysis of 15 pages, with almost 70 footnotes. What appears to the reviewer to emerge from the rather abstract discussions which Lo describes, in this case, as with all the above chapters, is the following. The PRC effectively retains, in terms of competences, a virtually complete power to intervene in Hong Kong where it regards this as essential, but in fact there is devolved to Hong Kong a very wide measure of autonomy, which the latter is expected to exercise without mainland intervention.
In other words, there is absent the formal element of federation in that there is not marked out an area which is the absolutely exclusive jurisdiction of Hong Kong, but, at the same time, Hong Kong has been authorised to exercise powers of initiative, particularly in the economic, trade and financial areas, which are well beyond those accorded to units in federal systems such as Canada or Germany. It has, from the start, been the intention of the PRC to authorise Hong Kong to exercise a high degree of autonomy (Art 2 of the Basic Law), but on the understanding that Hong Kong remains an inalienable part of the PRC (Art 1), where sovereignty rests. This is a bewildering combination for a lawyer – hence the reviewer’s perplexity until now – because it really renders a central role for the judiciary as the guardian of the Constitution problematic. Lo quotes Yash Ghai as saying how Art 158, which gives the NPCSC an unrestricted power to interpret the Basic Law, is the Achilles heel of autonomy. Lo also quotes Johannes Chan that the acceptance of the fact of sovereign power ‘may ironically provide the best possible means of salvaging the integrity of the common law system. This might appear to be precarious, but it seems to be the only pragmatic solution’. However, neither view captures the spirit of Deng Xiaoping’s very original theory of ‘one country, two systems’ which Lo quotes fully in his annotation of Art 5, guaranteeing Hong Kong’s capitalist system, alongside the mainland’s socialist system. Deng Xiaoping sees the maintenance of the two systems as complimentary: “Our thinking on this question should not be one sided. If we don’t attach equal importance to both aspects, it will be impossible to keep the policy of ‘one country, two systems’ unchanged for several decades.” This intention expresses a spirit of
self-restraint, the meta-legal principle of legitimacy which underlies the Basic Law: D Chang, ‘The Imperatives of One Country, Two Systems: One Country Before Two Systems?’ (2007) HKLJ Vol 37, Part 2, 351.
Of course, in legal terms, there is no escaping the sovereign power of China. It appears to purely judicial eyes of interpretation that Art 158 gives an unrestricted power of interpretation of the Basic Law to the NPCSC in its first paragraph, but it is also the same body which, in the whole spirit of the Basic Law, authorises the Hong Kong courts to interpret provisions which are within the limits of its autonomy, while obliging them to refer back to the NPCSC wherever matters are the responsibility of the Central People’s Government or concern Central-HKSAR relations. Lo recounts all of the academic and judicial discussion of this issue which Carl Schmitt famously determined as the criterion for the location of sovereignty: Sovereign is the person who finally decides. So who decides the ‘classification question’? Various arguments of Denis Chang, Yash Ghai, Trevor Morris, Albert Chen, Wang Shuwen, Xiao Weiyun, Mark Elliott and Christopher Forsyth are canvassed, alongside all the relevant judgments of the Court of Final Appeal. There could be the ‘predominant provision test’ or the ‘necessary condition’ test or many others. Nonetheless, the principle of mutual self-restraint is the meta-legal principle of legitimacy which underlies constitutional interpretation.
Lo quotes Ghai as coming back to his frequently repeated point that the Basic Law ‘does not use the traditional method of enumerating powers and responsibilities of each level of government by lists and neither the limits of the HKSAR’s autonomy nor the relationship between the Central Authorities and the HKSAR have been clearly spelt out’. To mention only two issues or subjects that Lo discusses exhaustively in other parts of his work, movement of persons and national security, it is clear that the Basic Law gives the CPG a ‘central’ role. Article 22 para 4 provides that entry of persons into Hong Kong ‘shall be determined by the competent authorities of the CPG after consulting the government of the Region’. This clearly has a bearing on any interpretation of Art 24(3), so much the matter of judicial controversy and a NPCSC Decision of 26 June 1999 (an interpretation by the NPCSC of Arts 22(4) and 24(2)(3) of the Basic Law of the HKSAR). It is well-known that there was considerable outrage in Hong Kong that, while a decision of the CFA could not be overruled by such a ‘political’ body as the NPCSC, because of its power of final adjudication (Art 82), the latter could reject the interpretation of the Basic Law which the CFA had espoused for its decision and direct that another interpretation should be followed in the future.Once again Lo provides many pages of close analysis of relevant judicial, academic and other materials, introducing also the section on Fundamental Rights and the detail of Art 24. Nonetheless, to the present reviewer, it is difficult to understand how one could ever have thought that it was possible to consider Art 24(3) independently of Art 22 para 4. A constitution has to be read as a whole, each article in relation to the others. This is a possible weakness of the method of annotation , article by article.
As for national security, Lo introduces the history and controversy around Art 23 and the attempt of the Hong Kong Government to introduce a National Security Bill in 2003. The popular resistance to this Bill and its eventual withdrawal is a source of considerable pride to civil opinion in Hong Kong. Once again Lo provides an exhaustive listing of the literature on this subject, but it is regrettable that he does not explain succinctly what was at issue in civil liberty terms in this case. Nor does he engage in a systematic analysis of the relationship of Art 23 to Art 18. It appears to provide that where the NPCSC considers that ‘by reason of turmoil within the HKSAR’ national unity or security is endangered ‘and is beyond the control of the government of the Region’ it may decide ‘that the Region is in a state of emergency’. In this case, ‘the CPG may issue an order applying the relevant national laws in the Region’. Lo remarks, helpfully, that there ‘is a legion of comparative literature on states of emergency and the constitutional response to a national emergency’. A vast literature is then provided. Lo also stresses the importance of the Paris Minimum Standards of Human Rights in a State of Emergency, of the International Law Association – a private association of professional international lawyers. This literature includes references to such elite, if rather abstruse, Western intellectual figures as Giorgio Agamben as well as much recent mainland Chinese scholarship.
It is only a pity that Lo does not move at all beyond the selfrestraint of a common law annotator to ask himself speculative systemic interpretative questions – such as might be put in the European traditions of constitutional annotation. One question a more speculative annotator could ask is the following: could the NPCSC not have treated the demonstrations against the National Security Bill as ‘turmoil’ and have invoked Art 18 para 4, instead of requiring the resignation of the Chief Executive who introduced the Bill? What is, therefore, the ‘real’ significance of the outcome of spectacular manifestations of public concern in Hong Kong, which remained ‘unclassified’ by the ‘Sovereign Power’?
In other legal traditions besides the common law, academic and professional commentators see themselves as serving a useful legal function in pressing the logical conclusions of possible legal interpretations alongside either real or hypothetic cases. This civil law tradition of commentary originates in the German Pandectan legal method (see generally, Franz Wieacker, Privatrechtsgeschichte der Neuzeit Vandenhoeck und Ruprecht, 1996), which was itself for centuries concerned to respond creatively to hybrid situations where unclear lines of political and legal authority could be filled speculatively by an academic or learned, in the sense of erudite, class, who could draw upon various sources of ‘acceptable’ knowledge, including canon law, natural law, Roman law and even classical Greek philosophy. There is no doubt that Lo has the erudition to follow this course but may need to look for models. In any case, as he demonstrates, the CFA correctly refuses an advisory, as distinct from adjudicative role, and hence the former task could fall to the annotating commentator.
Within the confines of a limited book review, there is one field of issues to be mentioned. Article 5 provides that the socialist system and policies shall not be practiced in Hong Kong and the previous capitalist system shall remain unchanged for 50 years. Lo comments this provision with important extracts from speeches of Deng Xiaoping and the work of various Chinese authors, as well as a few judicial decisions. He also points out how Art 5 is ‘the underlying principle from which the economic provisions of the Basic Law in Chapter V were constructed, separating the economic system of the HKSAR from the economic system of mainland China and providing for the structure of the operation of the HKSAR’s market economy...’. Most of the 150 pages or so of scrupulous analysis that Lo provides for this chapter concerns matters which are the subject of ordinances, unlikely to be justiciable. At the same time, it is this part of the Basic Law which deserves to be characterised quite simply as a ‘remarkably high degree of autonomy’ accorded to Hong Kong. It may be here that there is scope for academic reflection of a speculative (Pandectan) character to avoid collisions between Hong Kong and the CPG concerning the legal aspects of a capitalist economy.
This was the issue in Democratic Republic of the Congo v FG Hemisphere Associates LLC [2011] 4 HKC 151. The restrictive immunity doctrine of the common law has come to be regarded as the normal accompaniment of Western ‘capitalist’ economies, while the absolute immunity doctrine remains more prevalent among ‘socialist’ and some ‘developing’ countries. Hong Kong definitely falls within the first category and China, arguably, within the second. Lo annotates the case extensively at the High Court and Court of Appeal level, before going to press, describing without comment, the various opinions of the judges. However, it would have helped in this case, as in others, to have an academic or independent professional tradition accustomed to anticipate in a more reflective form the types of situation in which issues of contest between restrictive and absolute immunity could have arisen in practice, with more clarity in consequence, about where collisions between ‘capitalist’ and ‘socialist’ systems could arise. In the CA and the CFA, the issue of adherence to common law or mainland systems of law took on a rather abstracted, culturally polarised form which might have been avoided. The issue was allowed to take on a ‘Schmittian’ form: who, as Sovereign, decides on the classification? Once the issue takes that form, the outcome is a foregone conclusion. Instead, speculative reflection might have anticipated what could be regarded as the ‘true’ interests of a ‘capitalist’ economy compared to a ‘socialist’ economy in matters of the law of sovereign immunity in its relation to commercial or other transactions. This would have included reflections on the role of debt-collecting companies, development aid to developing countries, as well as trust and confidence in arbitration processes and the worth of commercial transactions which may not appear ‘moral’ by some standards. Practical reflections like these, undertaken in advance, could be placed in the context of what economic federalists in Canada or Germany call ‘cooperative constitutionalism’.
All of these reflections notwithstanding, there is no question, in the reviewer’s mind, that Lo’s contribution with this work is not merely outstanding, but quite Herculean. He has not only made a singular contribution to the needs of the Hong Kong legal profession, but demonstrated once again that the study of the Hong Kong legal order is not merely a matter of local interest, but because of its ‘remarkably high degree of local autonomy’, a matter of international interest. The resources of Lo’s book are a sure foundation for further research of singular distinction.
Professor Tony Carty
Sir YK Pao Chair of Public Law
University of Hong Kong
December 2011 - Hong Kong Lawyer (Journal)
