Reflections on Administrative Law in China: A Hong Kong Perspective

Abstract

Under the constitutional framework of “one country, two systems” that has been put into practice since Hong Kong’s reunification with China in 1997, the legal system of the Hong Kong Special Administrative Region (HKSAR) and that of mainland China operate autonomously in such a way that they are largely independent of each other. The HKSAR retains almost all the features of its pre-1997 common law system. In the domain of public law, the legal history of the HKSAR has seen a number of high profile constitutional cases as well as cases in administrative law. There has been a notable increase in judicial review cases in Hong Kong since the handover. Administrative law in Hong Kong is thus not only alive and well in the post-1997 era, but has flourished and displayed an unprecedented degree of vibrancy and vitality. At the same time, across the Hong Kong-Shenzhen border, administrative law has also flourished in mainland China. In March 1999, the National People’s Congress (NPC) adopted constitutional amendments which provide, inter alia, for “ruling the State in accordance with law” and “building a socialist Rechtsstaat (State based on the Rule of Law)”. Later in the same year, the State Council promulgated the Decision on the Comprehensive Promotion of Administration in Accordance with Law. This Decision was followed by the very detailed and elaborate Implementation Outline for the Comprehensive Promotion of Administration in Accordance with Law promulgated by the State Council in 2004. The last decade has also seen major enactments in the field of Chinese administrative law, including three major laws enacted by the NPC Standing Committee -- the Law of Administrative Licensing 2003, the Law on Civil Servants 2005, the Law on Security Administrative Punishment 2005, and two major enactments by the Supreme People’s Court – its Interpretations on the Administrative Litigation Law in 2000, and its Provisions on Evidence in Administrative Litigation in 2002. Drafting work for the revision of the Administrative Litigation Law 1989 has also begun. In this short essay, I will reflect and comment on some aspects of administrative law in China from the perspective of a scholar of law in Hong Kong, and draw some broad comparisons between administrative law in mainland China and Hong Kong. I will begin with some thoughts on the historical development of Chinese administrative law. Then I will turn to the structure of contemporary Chinese administrative law as presented in leading textbooks, and compare it with that of administrative law in Hong Kong. Finally, I will comment on some key features of the law of administrative litigation in China, particularly the scope of and grounds for judicial review of administrative action.