The Public Sector in Hong Kong

2. The Constitutional Framework

2 The Constitutional Framework Constitutions are definitive, legally-binding accounts of the rules and principles that govern polities. They describe the powers and functions of the major executive, legislative, judicial and administrative institutions and delineate relationships between them. They provide the authority for the decisions of the government and help to legitimate the way in which power is exercised. They often specify how government is to be controlled and the mechanisms through which the executive authorities are to be held accountable by the legislature and by the people. They may reflect the aspirations and values of the people and help to protect their civil liberties from possible encroachments by the state. While Hong Kong’s Basic Law contains most of the features of a constitution, it also has three peculiar characteristics resulting from the resumption of Chinese sovereignty and from the legacy of the colonial political order. First, a constitution normally implies sovereignty, that is, it assumes that the ultimate source of legal authority is vested in the jurisdiction that is being described and that the powers of the political and administrative institutions which compose the state are not constrained by any external body. Since Hong Kong is part of China, however, sovereignty rests with the Chinese state and the ultimate source of formal legal authority is the constitution of the People’s Republic rather than the Basic Law. The Basic Law does specify that the political arrangements that apply in Hong Kong will be distinctly different from the rest of China and that it will enjoy “a high degree of autonomy.” But power is not entirely vested, as it would be in a sovereign state, in the Hong Kong authorities. The government of the People’s Republic of China (PRC) retains responsibility for foreign affairs, defence and, most importantly, the right to interpret and amend the Basic Law which, as Ghai notes, “... is not simply about the meaning of laws but about power relationships...about control not autonomy...”1 There are aspects of the relationship between the central government and the Hong Kong Special Administrative Region (HKSAR) which have yet to be made clear and which are a consequence of the establishment of a supposedly highly autonomous entity within a unitary system. Thus, while the Basic Law may be regarded as an authoritative, formal description of the way in which domestic institutions are expected to work, there are also certain restrictions within it on the evolution of political 26 The Public Sector in Hong Kong institutions which reflect the interests of the sovereign power and its views on how the polity should be run.2 Second, the Basic Law is fundamentally different, in a formal constitutional sense, from the colonial political order which it replaced. The colonial constitution was largely unwritten. Legal authority stemmed from the Royal Instructions and the Letters Patent, supplemented by unwritten conventions, some of them binding, some of them not. The interpretation of those conventions by the executive authorities in Britain and Hong Kong and by the courts enabled quite significant constitutional changes to be made without major amendments to the written constitutional documents. Conventions generally tend to develop over time in response to changing circumstances. The Basic Law, by contrast, is a written constitution which has only been in force for a short period of time. As a young constitution, with many of its central provisions still to be fully interpreted in the courts or by the Standing Committee of the National People’s Congress, it could still develop in surprising and unexpected directions. In the many constitutional disputes that have occurred since 1997, the different interpretations of the Basic Law reflect deep disagreements over Hong Kong’s political arrangements. While such divisions exist, there is no reason to suppose that many other provisions will be any less controversial when they are subject to interpretation. As Thynne remarks, the Basic Law creates “but a framework within which understandings, relationships, various courses of action, and so on, will have to be forged, justified and maintained through an ongoing process of political debate and manoeuvring.”3 Third, although there were fundamental differences in form between the largely unwritten colonial constitution and the written Basic Law, there was considerable continuity in the way in which the central institutions of government were expected to perform. The drafters of the Basic Law deliberately drew on the central features of colonial rule in constructing the new political order. Xu Jiatun, the Chinese government’s representative in Hong Kong in the...