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Hong Kong’s Quasi-Constitutionalities: Part 1

–P. Y. Lo, LLB (Lond.), Ph D (HKU), Barrister-at-law, Gilt Chambers, Hong Kong.

Richard Albert and Joel Colón-Rios’ edited volume on Quasi-Constitutionality and Constitutional Statutes (Routledge 2019) considers a variety of means by which a statute can become or be treated as “entrenched”, “constitutionally significant” or otherwise having a “constitutional status”. This can be because, as Rivka Weill considers in Chapter 3 of the volume, such a statute was enacted to prescribe judicially enforced standards (usually fundamental human rights standards) that would require a Parliamentary response; or as Lael Weis considers in Chapter 9, such a statute was required to be enacted by reason of a provision in the country’s Constitution.

Hong Kong, a Special Administrative Region of the People’s Republic of China, has a bit of both, under its constitutional instrument, the Basic Law.

In the first of this two-part post, I consider the aspect of quasi-constitutionality of constitutionally obligated legislation pursuant to Article 23 of the Basic Law, which states:

The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies. (underlining supplied).

As Yash Ghai observed, it was a requirement of Hong Kong to impose restrictions on the enjoyment of rights and freedoms “to prevent challenges to the mainland [Chinese] system” and to penalize “attempts at [the] disruption” of the systems of the Chinese sovereign.[1]

Yet, the odd situation 20 years after the coming into effect of the Basic Law is that no such laws have been enacted. An attempt was made to do that in the Hong Kong legislature in 2003 but a popular protest movement fueled by concerns over the possible draconian effects of the draft legislation caused a change in position in one political faction in the legislature, resulting in the Hong Kong Government shelving the draft legislation.[2]

Since then, from time to time, there have been opinions expressed calling on the Hong Kong Government to fulfill this “constitutional duty”, bearing in mind that Macau, the other Special Administrative Region of the People’s Republic of China, had enacted its national security legislation pursuant to the similar terms of a provision of its own Basic Law in 2009[3] and that the People’s Republic of China itself had modernized its own legislative web safeguarding national security. Some Hong Kong politicians have argued that if the Hong Kong Government keeps on dragging its feet on this matter, it might be better for the Central Government in Beijing to impose on Hong Kong the modernized national laws on national security.[4]

Now, in view of an assured majority in the Hong Kong legislature voting for the Government, it has been suspected or expected that the current Chief Executive heading the Government, Mrs. Carrie Lam, may be inclined to fulfill this “constitutional obligation” before the end of her term of office in 2022.[5] There is, however, a respectable opinion, from someone of no less expertise and experience than Professor Johannes Chan, that Hong Kong already has the national security related legislative provisions required under Article 23 in the Crimes Ordinance, the Societies Ordinance and the Official Secrets Ordinance, and all that is necessary is to interpret those provisions according to rules prescribed in the Interpretation and General Clauses Ordinance to adapt and modify them to befit the status of Hong Kong now as a Special Administrative Region of the People’s Republic of China.[6]

Much unlike the other aspect of quasi-constitutionality in Hong Kong to be discussed in the second installment of this post, it is very unlikely for any of these viewpoints to receive a definitive and authoritative answer.

The Hong Kong Bill of Rights Ordinance, a statute enacted prior to the handover in 1997, is the other aspect of quasi-constitutionality in Hong Kong that will be discussed. For starters, this Ordinance is so much blessed by the Hong Kong courts post-1997 that it has become “entrenched” under the Basic Law.

Suggested Citation: P.Y. Lo, Hong Kong’s Quasi-Constitutionalities: Part 1, Int’l J. Const. L. Blog, Apr. 13, 2019, at: http://www.iconnectblog.com/2019/04/hong-kong’s-quasi-constitutionalities:-part-1


[1] Yash Ghai, Hong Kong’s New Constitutional Order (2nd Ed) (Hong Kong University Press, 1999) pp 223, 403.

[2] For details of the events and implications of the legislative process of the draft national security legislation, see Fu Hualing, Carole Petersen and Simon Young (eds), National Security and Fundamental Freedoms: Hong Kong’s Article 23 under Scrutiny (Hong Kong University Press, 2005). 

[3] An English translation of Macau’s Law on Safeguarding National Security is available at: https://www.cecc.gov/resources/legal-provisions/macau-special-administrative-region-national-security-law-chinese-and.

[4] Jeffie Lam, ‘NPC deputy Stanley Ng renews calls to enact Hong Kong national security law’, South China Morning Post (22 January 2015) (at: https://www.scmp.com/news/hong-kong/article/1689031/npc-deputy-stanley-ng-renews-calls-enact-hong-kong-national-security).

[5] Stuart Lau and Tony Cheung, ‘Beijing signals impatience at Hong Kong’s delay in enacting national security law’, South China Morning Post (16 November 2017) (at: https://www.scmp.com/news/hong-kong/politics/article/2120195/beijing-signals-impatience-hong-kongs-delay-enacting); and Su Xinqi, ‘Punishment awaits Hong Kong independence advocates amid efforts to make Article 23 passage more likely, Carrie Lam says’, South China Morning Post (10 October 2018) (at: https://www.scmp.com/news/hong-kong/politics/article/2167851/punishment-awaits-hong-kong-independence-advocates-amid). On the other hand, Mrs. Lam can be regarded as an over-achiever by the Central Authorities if she succeeds in her current initiative of amending fugitive offenders and mutual legal assistance in criminal matters legislation to enable Chinese prosecutors to seek rendition of fugitives to Mainland China for prosecution or serving of a sentence, whether such persons are Hong Kong residents or foreigners who happen to be in the territory; see Austin Ramzy, ‘Murder Case Poses Dilemma for Hong Kong on Sending Suspects to China’, The New York Tines (4 March 2019) (at: https://www.nytimes.com/2019/03/04/world/asia/hong-kong-china-extradition.html).  

[6] Elson Tong, ‘Reviving Article 23 (Part I): The rise and fall of Hong Kong’s 2003 national security bill’, Hong Kong Free Press (17 February 2018) (at: https://www.hongkongfp.com/2018/02/17/reviving-article-23-part-i-rise-fall-hong-kongs-2003-national-security-bill/).

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Published on April 13, 2019
Author:          Filed under: Analysis
 

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