Role of the Court of Final Appeal of the Hong Kong special administrative region under China's "one country, two systems" principle

Abstract

This thesis examines the constitutional performance of Hong Kong’s Court of Final Appeal (the CFA or the Court), and explores the appropriate role it should play in Hong Kong’s new constitutional order defined by China’s “one country, two systems” principle. It includes a wider discussion of China’s political and constitutional structure within which the Court’s operational context is defined, a consideration of the legitimate role of senior courts, and an investigation of relevant UK and EU constitutional practices. It evaluates the Court’s part, inter alia, in constitutional judicial review, the interpretation of the Hong Kong Basic Law, human rights protection, and the resulting constitutional and political implications. The Court’s role mirrors questions in relation not only to the internal political and legal order of Hong Kong itself but also to the broader constitutional order as to the central-regional relationship in China. It is the only institutional connection between Hong Kong’s common law legal system and Mainland China’s communist civil law system. When exercising its power of constitutional review and Basic Law interpretation, the Court faces dilemmas and sensitive situations, in which it has to handle with care the relationships between individual freedoms and collective good, judicial independence and executive efficiency, judicial scrutiny and legislative authority, regional interests and national concerns, the region’s autonomy and the centre’s power. A tendency of judicial supremacy emerges in post- handover Hong Kong, with profound implications for Hong Kong’s political life. While playing a significant role in human rights protection, the maintenance of good governance, and the achievements in constitutionalism and the rule of law in Hong Kong, the Court may also make some positive contributions to Mainland China’s own development in these areas. It is suggested that the Court adopt a modest and restrained approach in deciding politically sensitive constitutional questions, defining itself not only as a regional supreme court safeguarding Hong Kong’s autonomy but also as a national court protecting sovereign interests. A relationship of coordination, reciprocity, mutual trust and mutual respect between Hong Kong and the Central Government, and between Hong Kong courts (the CFA in particular) and other Hong Kong institutions should be built.