Hong Kong’s judiciary
a high degree of autonomy, except in foreign and defence affairs’ as a ‘Special Administrative Region’. (Clause 3(2))
The Declaration’s most consequential legal provision was Clause 3(3), which stipulated that ‘the laws currently in force in Hong Kong will remain basically unchanged.’
Here, the word ‘basically’ performs the same function as ‘inapplicable’ did in 1844: it introduces deliberate vagueness, granting the new sovereign interpretive latitude over what continuity requires. Annex I(II) elaborated that Hong Kong’s common law, rules of equity, ordinances, and customary law would be maintained ‘save for any that contravene the Basic Law.’ The phrase ‘basically unchanged’ therefore stipulated both continuity and reserved the right to alter, highlighting the constitutional paradox at the heart of the handover. Colonial laws were preserved in form, but their continuation depended on the interpretation of compatibility with the Basic Law. Decolonization, in this sense, never fully occurred; almost all colonial laws continued in force, serving a different sovereign’s purposes. The Declaration also transplanted the separation of powers, ‘executive, legislative, and judicial’, into Hong Kong, contrary to the Chinese constitutional system. Annex I(III) guaranteed that courts ‘shall be free from interference’ and that members of the judiciary ‘shall be immune from legal action.’ The appointment of overseas non-permanent judges from other Common Law jurisdictions served as a guarantee of the system’s distinctiveness and quality. Their willingness to serve was, as Melissa Pang, then President of the Law Society of Hong Kong, observed, understood to signal confidence in Hong Kong’s judicial independence. (Pang, 2020)
Article 158 and the tension of interpretive authority
The structural tension within ‘One Country, Two Systems’ is most visible in Article 158 of the Basic Law, which vests ultimate interpretive power in the Standing Committee of the National People’s Congress (NPCSC). This fundamentally contradicts common law principles, under which final courts possess interpretive authority. While Article 158(2) permits Hong Kong courts to interpret the Basic Law ‘in adjudicating cases,’ Article 158(3) requires the Court of Final Appeal to seek NPCSC interpretation for provisions ‘concerning affairs which are the responsibility of the Central People’s Government’ when such interpretation affects non-appealable judgments. (Basic Law, 1990)
The practical significance of Article 158 became clear in the right-of-abode cases. In Ng Ka Ling v. Director of Immigration (1999), the CFA asserted jurisdiction to review the consistency of NPC and
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