Yash Ghai and the Constitutional Experiment of 'One Country, Two Systems' in Hong Kong

Abstract

In 1997, Hong Kong was returned to Chinese sovereignty after over 150 years of British colonial rule. The Sino-British Joint Declaration – the international treaty that underpinned the handover – guaranteed that Hong Kong shall, for 50 years (until 2047), practise different economic, social and legal systems and enjoy a high degree of autonomy, an arrangement known as ‘One country, two systems’. These guarantees were elaborated in the territory’s post-handover constitutional charter, the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (BL). The governing framework of ‘One country, two systems’ seeks to fit a vibrant capitalist economy and a liberal common law legal system within a one-party state that practices a ‘socialist market economy’ and a legal system of Soviet lineage – a unique arrangement that saw no precedent. The key challenge facing Hong Kong’s constitutional order has been that of maintaining the distinctiveness of Hong Kong while accommodating Chinese sovereignty.

In his 16 years as Sir Y K Pao Chair of Public Law at the University of Hong Kong (1989-2005), Yash Ghai made an enormous contribution to the understanding of Hong Kong’s constitutional order. Ghai insists that only a contextual approach to the study of law would enable us to understand how the law came about, what it means, what its implications are, and how it should be applied. Situating Hong Kong’s constitutional order in the Chinese and comparative contexts, he analyses the unique nature of that order, projects what the likely risks of that order are, and the possibilities that might ensue, and offers the first, and perhaps so far only, theory of how that order should be understood and developed.

In this article, we will first discuss Ghai’s work on ‘One country, two systems’ and the Basic Law. Given space limitations, we will not be able to do justice to Ghai’s rich and sophisticated analyses of a wide range of issues in Hong Kong constitutional law, but we will seek to identify and describe the main themes of his scholarship on the constitutional order of the HKSAR. We will then review briefly what we consider the most significant constitutional developments in the HKSAR since the last edition of Ghai’s book on Hong Kong’s New Constitutional Order was published in 1999.