Dual System of Constitutional Interpretation A Hong Kong Experience

Abstract

After the People's Republic of China resumed her sovereign control over Hong Kong, the Hong Kong Special Administrative Region was established pursuant to the Basic Law of Hong Kong, which is the constitutional document for Hong Kong. The Basic Law of Hong Kong defines the scope of autonomy enjoyed by Hong Kong as a region within a unitary state under the policy of 'one country, two systems.' However, the policy has never been clear, and it leads to controversy surrounding the application of the ‘dual system’ of constitutional interpretation in Hong Kong, as the highest appellate court in Hong Kong, the Court of Final Appeal, may be required to refer to the Chinese Government for interpretation of the Basic Law. In this article, the referral mechanism in the Basic Law and the scope of constitutional jurisdiction enjoyed by the Hong Kong Court of Final Appeal after the two landmark cases, Ng Ka Ling v Director of Immigration and Democratic Republic of the Congo v FG Hemisphere Associates LLC, will be discussed with reference to the similar mechanism under Article 177 of the Treaty Establishing the European Economic Community (now Article 267 of the Treaty on the Functioning of the European Union), to ascertain who will interpret the ‘mini-constitution’ of Hong Kong.