Published online by Cambridge University Press: 16 April 2015
It has been more than a decade since China began her experiment of “One Country, Two Systems” in Hong Kong (HK). It is now generally assumed that the relationship between the legal systems of these two jurisdictions is monistic. Analysing post-Handover constitutional case law in HK, including a recent landmark decision on sovereign immunity, FG Hemisphere Associates LLC v. Democratic Republic of Congo, this article challenges this assumption and argues that the relationship between the two legal systems is best conceptualized as a form of legal pluralism found in the European Union.
1 The Chinese government and some scholars share this view. See infra notes 27, 29, 30 and accompanying text.
2 This view is usually not made expressly but intimated. See infra notes 43, 44, 72, 73 and accompanying text.
3  2 HKLRD 66 (HK Court of Appeal) (on appeal). Substantive hearing in the HK Court of Final Appeal is set down for March 2011.
4 There were previous attempts to apply and ultimately dismiss the model of legal pluralism for analysing the relationship between the Mainland Chinese and HK legal systems. See Ghai, Yash, “Litigating the Basic Law: Jurisdiction, Interpretation and Procedure” in Chan, Johannes MM, Fu, HL, Ghai, Yash, eds., Hong Kong's Constitutional Debate: Conflict Over Interpretation (HK: HK University Press, 2000) [hereinafter “HK's Constitutional Debate”], at 10Google Scholar; Ghai, Yash, “The Intersection of Chinese Law and the Common Law in the HKSAR: Question of Technique or Politics?” (2007) 37 Hong Kong Law Journal [hereinafter “HKLJ”] 363, at 367Google Scholar. For my response to Ghai's argument, see infra note 25 and accompanying text. In addition, Alice Tay explained how legal pluralism did not fit the ideology of communist China. Tay, Alice ES, “People's Republic of China” in Tan, Poh-Ling, Asian Legal Systems (Butterworths, 1997), at 63Google Scholar. It is beyond the scope of this article to fully respond to this argument. Suffice to say that this article focuses on what the relationship between legal systems in fact is, which may or may not be in line with the ideology of the ruling government.
6 Kelsen, H, Pure Theory of Law, Knight, Max (trs.) (University of California Press, Berkeley, 1978) 198-205, 214–217Google Scholar.
7 Kelsen, ibid, at 328-329; Torre, M La, “Legal Pluralism as Evolutionary Achievement of Community Law” (1999) 12(2) Ratio Juris 192–193CrossRefGoogle Scholar; Eleftheriadis, P, “Pluralism and Integrity” (2009) Oxford Legal Studies Research Paper No 43/2009 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1486151> (last accessed 18 August 2010), at 6-8, 21–28Google Scholar.
8 Discussions on legal pluralism have been classified in different ways. See for e.g. Twining's, William classification in “Normative and Legal Pluralism: A Global Perspective” (2010) 20 Duke Journal of Comparative and International Law 47Google Scholar; and Poh-Ling Tan and Alice ES Tay's classification in Poh-Ling Tan, supra note 4, at 396-405. For discussions on legal pluralism generally, see Griffiths, J, “What is Legal Pluralism?” (1986) 24 Journal of Legal Pluralism & Unofficial Law 1CrossRefGoogle Scholar; DJ Galligan, Law in Modern Society (New York: Oxford University Press, 2007) 162-170; Merry, SE, “Legal Pluralism” (1988) 22(5) Law & Society Review 869CrossRefGoogle Scholar; Woodman, GR, “The Idea of Legal Pluralism” in Dupret, B, Berger, M, al-Zwaini, L, eds., Legal Pluralism in the Arab World (Kluwer Law International, 1999) 3–19Google Scholar; Chiba, M, Legal Pluralism: Toward a General Theory through Japanese Legal Culture (Tokyo: Tokai University Press, 1989)Google Scholar; Petersen, H and Zahle, H, eds., Legal Polycentricity: Consequences of Pluralism in Law (Aldershot: Dartmouth, 1995Google Scholar).
9 This distinction follows that made by William Twining in ibid, at 488-489.
10 For discussions on pluralism in the EU, see e.g. sources in supra notes 5 and 7, and MacCormick, N, Questioning Sovereignty (New York: Oxford University Press, 1999)CrossRefGoogle Scholar; Walker, N, “The Idea of Constitutional Pluralism” (2002) 65(3) MLR 317CrossRefGoogle Scholar; Walker, N, “Late Sovereignty in the European Union” and Maduro, MP, “Contrapunctual Law: Europe's Constitutional Pluralism in Action” in Walker, N, ed., Sovereignty in Transition (Hart Publishing, 2003) 54, 501–537Google Scholar; Rosenfeld, M, “Rethinking Constitutional Ordering in an Era of Legal and Ideological Pluralism” (2008) 6 International Journal of Constitutional Law 415CrossRefGoogle Scholar; Barber, NW, “Legal Pluralism” (2006) 12(3) European Law Journal 306, 327–329CrossRefGoogle Scholar; Oliver, PC, The Constitution of Independence (New York: Oxford University Press, 2005) 311CrossRefGoogle Scholar.
11 These features are gathered from studying the sources ibid.
12 This is MacCormick's “radical pluralism”. See MacCormick, supra note 10, at 97-121.
13 Barber, supra note 10, at 306-308, 316-327. On the rule of recognition generally, see Hart, HLA, The Concept of Law, 2nd ed., (Oxford: Clarendon Press, 1994)Google Scholar; Raz, J, The Concept of a Legal System (New York: Oxford University Press, reprinted 2003) 187–202Google Scholar; Raz, J, The Authority of Law (Oxford: Clarendon Press, 1979) 78–102Google Scholar.
14 E.g. Eleftheriadis, supra note 7 at 3.
15 Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong (signed 19 December 1984, entered into force 30 June 1985) UKTS 26 Cmnd. 9543.
16 The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, Adopted at the Third Session of the Seventh National People's Congress on 4 April 1990.
17 Art. 19, BL; cl. 3(3), JD.
18 Art. 18 BL.
19 Art. 11 BL.
20 HK courts have frequently referred to the BL as the constitution of HK. The use of the term “constitution” to describe the BL has not been uncontroversial. The Chinese government insists that there is only one constitution within China, i.e. the Constitution of the People's Republic of China.
21 Arts, 158-159, BL. The final power of interpreting the BL is vested with the Standing Committee of the National People's Congress, while the final power of amending the BL is vested with the National People's Congress.
22 Treaty of the European Union (Maastricht consolidated version, 1 November 1993) 92/c 191/01, now renumbered as art. 267 of the Treaty on the Functioning of the European Union (30 March 2010) Volume 53 C83. For a comparison between the two reference schemes, see Wang, infra note 30, at 216-218; AHY Chen, “The Court of Final Appeal's Ruling in the ‘Illegal Migrant’ Children Case: A Critical Commentary on the Application of Article 158 of the Basic Law” in HK's Constitutional Debate, supra note 4 at 114-141; Y Ghai, “Litigating the Basic Law” in HK's Constitutional Debate, supra note 4, at 35-36.
23 Art. 158(2), BL.
24 Art. 158(3), BL.
25 Ghai, “Litigating the Basic Law” in HK's Constitutional Debate, supra note 4 at 10; Ghai, “The Intersection of Chinese Law and the Common Law in the HKSAR: Question of Technique or Politics?”, supra note 4 at 367. This point has also been made by the anonymous reviewer.
26 Decision of the National People's Congress on the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, adopted at the Third Session of the Seventh National People's Congress on 4 April 1990.
27 Chen, AHY, “The Provisional Legislative Council of the SAR” (1997) 27 HKLJ 1, 9–10Google Scholar. For a general analysis of Kelsen and Hart's theories to the Chinese and HK legal systems, see Wacks, R, “One Country, Two Grundnormen? The Basic Law and the Basic Norm” in Wacks, R, ed., Hong Kong, China and 1997: Essays in Legal Theory (HK: HK University Press, 1997) at 151Google Scholar.
29 Press release by the New China News Agency (6 February 1999) [in Chinese], English translation by Chan, JMM printed in HK's Constitutional Debate, at 53–59Google Scholar.
30 Shuwen, Wang, ed., Introduction to the Basic Law of the Hong Kong Special Administrative Region, 2nd edn., (Law Press China and Joint Publishing (HK) Co Ltd, 1997) at 46, 54, 59, 62-65, 141-150, 178Google Scholar; Weiyun, Xiao, One Country, Two Systems: An Account of the Drafting of the HK Basic Law (Beijing: Peking University Press, 2001) at 129, 131, 161Google Scholar.
31 I say “general” because Kelsen used the idea of a change in grundnorm as an exit point to this principle. See Kelsen, supra note 6, and accompanying text to infra note 34 below.
33 Hart, ibid at 335.
34 For an example of such an argument, see Wacks, supra note 27.
35  1 HKLRD 410.
36  2 HKLRD 66.
37 Supra note 35, at paras. 83-96.
38 Supra note 35, at paras. 32-33, 37-46, 69-72.
39 Supra note 36, at paras. 45-85.
40 Supra note 36, at paras. 268-269.
41 Supra note 36, at paras. 86-123, 260-267.
42 Supra note 36, at paras. 34-44
43 See e.g. Y Ghai, “The Intersection of Chinese Law and the Common Law in the HKSAR: Question of Technique or Politics?”, supra note 4 at 405; JMM Chan, “Judicial Independence: A Reply to the Comments of the Mainland Legal Experts on the Constitutional Jurisdiction of the Court of Final Appeal”, Y Ghai, “The NPC Interpretation and Its Consequences”, and public reactions on “interpretation or amendment”, in HK's Constitutional Debate, supra note 4 at 61-72, 199-218, 305-412.
44 Y Ghai, “The Intersection of Chinese Law and the Common Law in the HKSAR: Question of Technique or Politics?”, supra note 4 at 405.
45 See supra Section III.
46 Craig and De Burca suggested a similar list of questions for analysing the issue of the supremacy of EU law. Craig, P and Burca, G De, EU Law: Text, Cases and Materials, 4th edn. (Oxford: Oxford University press, 2008) 354Google Scholar.
47 E.g. Case 26/62 NV Algemene Transporten Expedite Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen  ECR 1; Case 6/64 Flaminio Costa v. ENEL  ECR 585; Case 11/70 Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle fur Getreide und Futtermittel  ECR 1125.
48 For German decisions see e.g. Internationale Handelsgesellschalft mbH v. Einfuhr- und Vorratstelle fur Getreide und Futtermittel  2 C.M.L.R. 540 (Solange I)Google Scholar; Re Wunsche Handelsgesselschaft  3 C.M.L.R. 225 (Solange II)Google Scholar; the BVerfG's recent decision on the Treaty of Lisbon (signed at Lisbon on 13 December 2007, entered into force 1 December 2009): Decision of 30 June 2009, Cases 2 BvE 2/08 et. al. (English translation published by the Court available at <http://www.bundesverfassungsgericht.de/en/decisions/es20090630_2bve000208en.html>). See commentary in Bieber, R, “An Association of Sovereign States” (2009) 5 EuConst 391Google Scholar and Kumm, M, “Who is the Final Arbiter of Constitutionality in Europe?” (1999) 36 Common Market Law Review 351Google Scholar. For French decisions: Decision of Conseil d'Etat on 20 October 1989 in Raoul Georges Nicolo  1 C.M.L.R. 173; Decision of Cour de Cassation on 24 May 1975 in Administration des Douanes v. Societe Cafes Jacques Vabre' et Sarl Weigel et Cie  2 C.M.L.R. 336, both referred to in Craig and De Burca, supra note 45 at 354-357; see also Oliver, P, “The French Constitution and the Treaty of Maastricht” (1994) 43 I.C.L.Q. 1Google Scholar.
49 Solange I decision, ibid. Nor has this position on retaining the final say on constitutionality been retreated from in Solange II, although there the court revised the Solange formula such that an incompatibility between EU law and German law on fundamental rights is most likely to be exceptional. Confirmed by the court's recent Decision on the Lisbon Treaty, supra note 48.
50 In Factortame Ltd v. Secretary of State for Transport (No. 2)  UKHL 13, Lord Bridge referred to both the ECA 1972 and the ECJ's reasoning in according precedence to EU law (para 4). In Thoburn v. Sunderland City Council  EWHC 195 however, the court emphasized that such precedence is based exclusively on domestic acceptance (paras. 60-69).
51 Brunner v. The European Union Treaty  1 C.M.L.R. 57, affd in recent Decision on Lisbon Treaty, supra note 48. See Zuleeg, M, “The European Constitution under Constitutional Constraints: the German Scenario” (1997) 22(1) European Law Review 19Google Scholar.
52 Supra note 28 at 337-339.
53 Supra note 28 at 355, 357.
55 Supra note 29. Chinese officials were reported to have criticized the CFA's position as unconstitutional and requested its rectification. For more discussion see Chen, AHY, “Constitutional Adjudication in Post-1997 Hong Kong” (2006) 15 Pacific Rim Law & Policy Journal 627 at 636Google Scholar.
57 The CFA found that there was no conflict between BL and the relevant provisions of the national law in question, so there was no need for the court to consider which prevailed in case of conflict. Ibid, paras. 60-67.
58 Ng Ka Ling, supra note 28 at 341-345.
59 The Interpretation by the NPCSC of articles 22(4) and 24(2)(3) of the Basic Law of the HKSAR of the PRC adopted by the Standing Committee of the Ninth National People's Congress at its Tenth Session on 26 June 1999 [hereinafter: “Ng Ka Ling Interpretation”], at para. 1; Lau Kong Yung and 16 others v. Director of Immigration  3 HKLRD 778 at 797–800Google Scholar; The Director of Immigration v. Master Chong Fung Yuen  2 HKLRD 533 at section 6.2Google Scholar.
60 Ng Ka Ling, supra note 28 at 342.
61 Ng Ka Ling, supra note 28 at 341-345.
62 Ng Ka Ling, supra note 28 at 341-345.
63 Ng Ka Ling, supra note 28 at 341-345.
64 See The Chief Executive's Report to the State Council Concerning the Right of Abode, submitted to the State Council of the PRC on 20 May 1999, and the Ng Ka Ling Interpretation, supra note 59, both reproduced in HK ‘s Constitutional Debate, supra note 4 at 474-480.
65 The Chief Executive relied on art. 48(2), BL (on his power to implement laws in HK) and art. 43, BL (stipulating that he shall be the head of the HK government and accountable to the Central People's Government and HKSAR).
66 The Ng Ka Ling Interpretation, supra note 59 para. 2.
67 The Ng Ka Ling Interpretation, supra note 59 para. 1.
68 Lau Kong Yung, supra note 59.
69 E.g. Chong Fung Yuen, supra note 59 at section 7.4. The CFA held that the court should examine the “character” of the provision to decide whether it was an excluded provision. See also the Congo Case, (CFI), supra note 35 at paras. 45-46, 72-73; The Congo Case (CA), supra note 36 at paras. 34-44. Although, it must be noted that the CFA in Lau Kong Yung (at 800-F) and Chong Fung Yuen (at section 7.5) indicated that the “predominant provision” test might have to be revisited in future if the appropriate case arose.
70 In a procedural hearing on 30 June 2010, the Congo government asked the CFA to consider seeking an NPCSC interpretation on arts 8, 13 and 19, BL. See Press Release issued by the HK Judiciary on 20 July 2010, available at <http://www.info.gov.hk/gia/general/201007/20/ P201007200253.htm> (last accessed on 18 August 2010).
71 The Ng Ka Ling Interpretation was made without judicial reference. One of the subject articles for interpretation (art. 24(2)(3), BL) was a provision falling within HK's autonomy. The CFA in Lau Kong Yung, supra note 59, through accepting the Interpretation, accepts both free-standing aspects of the NPCSC's interpretative power. The court's acceptance of the free-standing nature of the NPCSC's interpretative power is confirmed in later cases, see e.g. Chong Fung Yuen, supra note 59 at section 6.2.
72 For example, Chen contrasted federalism with OCTS by pointing out, inter alia, that whereas jurisdictional conflicts in the former are resolved by an independent court, in the latter, they are resolved by the NPCSC acting in consultation with the BL Committee. Chen, Albert HY, “The Theory, Constitution and Practice of Autonomy: The Case of Hong Kong” in Oliveira, Jorge and Cardinal, Paulo, eds., One Country, Two Systems, Three Legal Orders – Perspectives of Evolution (Springer, 2009), at 761Google Scholar. Similar assertions on the NPCSC being “arbiter” have been made in the context of lamenting the lack of impartial arbiter on jurisdictional disputes between the two systems.
73 Y Ghai, “The Intersection of Chinese Law and the Common Law in the HKSAR: Question of Technique or Politics?”, supra note 4 at 405.
74 Including India, Bangladesh, and Pakistan.
75 Elaborated in the JD (cl. 3 and Annex I) and stipulated to remain unchanged for 50 years (cl. 3(12), JD); stated to be unamendable in the BL (art. 159(4), BL).
76 Ghai, “Litigating the Basic Law: Jurisdiction, Interpretation and Procedure” in HK's Constitutional Debate, supra note 4 at 48.
77 The 2004 Interpretation was made on the NPCSC's own initiative, in relation to provisions on constitutional reform in HK. The 2005 Interpretation was made on the HK Chief Executive's request, in relation to the term of office of the Chief Executive. The Interpretation by the NPCSC of art. 7 of Annex I and article III of Annex II of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, adopted by the Standing Committee of the Tenth National People's Congress at its Eighth Session on 6 April 2004; the Interpretation of para. 2, art. 53 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, adopted at the 15th Session of the Standing Committee of the Tenth National People's Congress on 27 April 2005.
78 See supra note 29.
79 The HK government's move was heavily criticized by parts of the HK legal profession and academia. See, JMM Chan, “What the Court of Final Appeal Has Not Clarified in Its Clarification: Jurisdiction and Amicus Intervention” in HK's Constitutional Debate, supra note 4 at 171-178 and criticisms documented in HK's Constitutional Debates, supra note 4 at 249-252, 255-256.
80 Ng Ka Ling and Others v. Director of Immigration (No. 2)  1 HKLRD 577Google Scholar [hereinafter: “Clarification”), at 578.
81 AHY Chen, “The Court of Final Appeal's Ruling in the ‘Illegal Migrant’ Children Case: Congressional Supremacy and Judicial Review” in HK's Constitutional Debate, supra note 4 at 84.
82 Maduro applied Schmitt's theory of sovereignty to analyse the situation of competing legal sovereigns in Europe, supra note 10 at 505, 522.
83 Solange II decision, supra note 48.
84 In response to the Clarification, a spokesman for the Legislative Affairs Commission of the NPCSC stated that the clarification was necessary, and the Vice-Premier Qian Qichen also hinted that the constitutional crisis had ended. Speech of the Spokesman for the NPCSC, reproduced in HK's Constitutional Debate, supra note 4 at 246. See also “Qian adds to easing of abode dispute”, South China Morning Post (1 March 1999)Google Scholar.
85 See supra note 57.
86 The case attracted much attention and was considered the litmus test to HK's high degree of autonomy. See e.g. Lee, M, “Hong Kong, China clash in landmark court case on sovereign immunity” The Canadian Press (23 July 2010), available at <http://www.winnipegfreepress.com/world/breakingnews/hong-kong-china-clash-in-landmark-court-case-on-sovereign-immunity-99091289.html> (last accessed 18 August 2010)Google Scholar. Shih, TH, “Top court may seek review of Basic Law: Independence of HK's judicial system faces test” South China Morning Post (HK, 20 July 2010)Google Scholar.
87 See CFI and CA's reasoning for rejecting such a wide reading of “foreign affair” and “act of state”, Congo Case (CFI), supra note 35 at paras. 45-46, 72, (CA), supra note 36 at paras. 34-44.
88 Congo case, supra note 36 at paras. 37-44, 248.
89 I thank Scott Veitch for suggesting the dialogue metaphor.
90 For the inability of dualism to explain the EU legal order, see e.g. La Torre, supra note 7 at 192-193.
91 Art. 158(3), BL.
92 Arts. 158(1) and (2), BL.
93 Barents made a similar argument for pluralism in the EU context. Barents, supra note 5 at 443-94444.
94 Kumm, supra note 48 at 384-386.
95 Tai also emphasized the importance of political considerations to the constitutional positioning of various parties under OCTS. Tai, B, “Chapter 1 of HK's New Constitution” in Chan, MK and So, AY. eds., Crisis and Transformation in China's Hong Kong (HK: HK University Press, 2002) 189-219, esp. at 211Google Scholar. Tai, B, “Basic Law, Basic Politics” (2007) 37 HKLJ 503Google Scholar.
96 See supra note 84.
97 Tai, supra note 95.
98 Chong Fung Yuen, supra note 59.
99 Ng Ka Ling Interpretation, supra note 59, clause 2.
100 Chong Fung Yuen, supra note 59, sections 7.3-8.3.
102 A spokesman for the Legislative Affairs Commission of the NPCSC “expressed concern”. “Assembly Standing Committee concerned by abode case in Hong Kong.” BBC Monitoring Asia Pacific (Political) (21 July 2001).
103 Chen, AYH, “Another Case of Conflict Between the CFA and the NPCSC?” (2001) 31 HKLJ 179 at 186Google Scholar.
104 For discussions on how Europe and China face similar problems and their possible convergence on governance solutions, see e.g. Jacques, M, When China Rules the World (Penguin Books, 2009) 220, p422-424Google Scholar; Rifkin, J, The European Dream (New York: Penguin Group, 2004), 359–360Google Scholar.
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