Constitutioning Hong Kong: "One Country, Two Systems" in the Dock

There is fish, and there is bear's paw, but you cannot have both at once.¹Meng Zi (Mencius)

Throughout the world, wherever democratization has gotten under way, constitutionalism—the idea that the law is above everyone and everything else—has generally gained ground.² Included within this constitutionalism is usually some form of constitutional judicial review, with an independent judiciary, a powerful (and perhaps the most trusted) vehicle for "speaking truth to power"—in other words, the "rule of law."³ The formulation "one country, two systems" (herein OCTS) in the People's Republic of China (PRC) is generally attributed to Deng Xiaoping, but its roots lie in Mao Zedong, who in 1959-1960 expressed the general idea with regard to the anticipated reunification of Taiwan and the mainland.⁴ Hence, the Hong Kong experiment, as it unfolds, has profound implications for the "Taiwan question" and is predictive of what will occur in the Republic of China should OCTS ever become the "law" there. In any case, OCTS is on trial.

Hong Kong's Constitutional Debate: Conflict Over Interpretation,⁵ edited by three University of Hong Kong law professors, with chapters by other lawyers, participants, politicians, and eyewitnesses, is an essential and often harrowing account of a major event in that trial. It is a broad, exhaustive, and balanced compendium of materials including the text of the cases, articles analyzing the events and the law, and a collection of public statements and documents. It is especially helpful to scholars outside Hong Kong who may not have easy access to the original Hong Kong documents and sources.

In Hong Kong, only a few years after the 1997 handover from British to PRC rule, the OCTS formula and constitutional judicial review have already collided in both the right-of-abode and flag-desecration cases.⁶ The most recent version of the changeable PRC Constitution allows for the setting up of special administrative regions like the Hong Kong SAR, in which, theoretically, socialism is not to be practiced. The Hong Kong Basic Law allows for judicial review of Hong Kong matters by the Hong Kong Court of Final Appeal (CFA), but not of acts of the ultimate PRC lawgivers, the National People's Congress (NPC), and the Chinese Communist Party (CCP). The core difficulty is that with one hand the Basic Law gives preservation of the common law (including constitutional judicial review) to the courts of Hong Kong, and with the other hand takes it away by giving the power of final interpretation of the law to the NPC. Hence, in Hong Kong, the OCTS formulation appears to be gutting this treasured power—with the complicity of the Hong Kong executive branch and even the CFA itself. In the process, there is an ongoing redefinition of who "the people" of China are and what "constitutes" Hong Kong. I argue that "one country" will always trump "two systems" on matters that count because at bottom it is an impossible tautology that will cause the common law to fail. The conclusion is inescapable that the Basic Law's promise of a continuation of the rule of law in Hong Kong after 1997 is a limited...