Hong Kong Courts and Chinese Institutions: Pluralism, Autonomy and Power Balance in Hong Kong’s constitutional adjudication

Abstract

Beijing’s exercise of its power of interpreting the Basic Law – Hong Kong’s constitution – seems to suggest that it has final say over what the law is in Hong Kong. This paper argues that it is possible to conceptualize the relationship between the Chinese and Hong Kong legal orders as a form of legal pluralism similar to that found in the European Union. It further argues that a possible way of maintaining the separation of these two highly divergent legal orders – such separation being promised in the Sino-British Joint Declaration and being the foundation of Hong Kong’s autonomy vis-avis China – is for courts in Hong Kong to develop the relationship between the two legal orders in a pluralist direction, thereby assuaging the power imbalance between the two jurisdictions. Unfortunately, Hong Kong courts missed an important opportunity to do so in the latest oath-taking saga.