Protecting human rights in a mixed constitutional context: the case of Hong Kong

Abstract

This article will consider the capacity of the Hong Kong Basic Law, a regional, “mixed” constitutional document, to support the protection of human rights. Although it contains liberal elements, including the entrenchment of core international human rights treaties and an independent judiciary, the Basic Law is not a classic liberal constitution. Hong Kong’s governing institutions do not enjoy democratic legitimacy and the Basic Law itself was enacted by the National People’s Congress of the People’s Republic of China rather than a local constituent assembly or other mechanism designed to reflect the consent of the governed. The Basic Law’s foundational principle of “One Country, Two Systems” – intended to ensure Hong Kong’s smooth transition to Chinese sovereignty in 1997 – has built-in tensions, and even contradictions, but no clear method for their resolution. This article explores how this “mixed” constitutional arrangement has nevertheless been able to protect many fundamental rights. It also examines opportunities to further strengthen rights, at least in some areas. Current political realities are likely to preclude any attempt to introduce progressive liberal constitutional or democratic reform. I argue, however, that certain features of Hong Kong’s constitutional framework and the courts’ approach to its interpretation could contribute to the development of a more expansive notion of democracy, beyond electoral procedures alone.