The interpretation of the Basic Law: common law and Mainland Chinese perspectives

Abstract

The Basic Law of the Hong Kong Special Administrative Region is a unique legal product of the concept and practice of 'one country, two systems'. It represents an organic link between the socialist legal system in mainland China and the common law system in Hong Kong. The principles governing the interpretation of the Basic Law are primarily those developed by the common law tradition. However, in interpreting the Basic Law, it may also be necessary to take into account the peculiar features of the systems of constitutional and legislative interpretation in mainland China. This article examines the experience of constitutional interpretation in the common law world, particularly the United States with its relatively long tradition of the interpretation of a written constitution. It also introduces the characteristics of constitutional and legislative interpretation in the legal system of contemporary China. The article then reviews Hong Kong's experience in constitutional interpretation, both in the colonial era and under the new constitutional regime governed by the Basic Law. It suggests that there is much that Hong Kong can learn from comparative studies. In the author's view, Hong Kong's journey in constitutional interpretation has only just begun.