A New Constitutional Order in Hong Kong: Managing Conflict Over the Interpretation of the Basic Law

The power of interpretation of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (the Basic Law) is quite a sensitive and controversial issue. The Basic Law is not only the constitutional law of the Hong Kong Special Administrative Region (Hong Kong or HKSAR), but it is also a national law of China. The bodies exercising the power of interpretation are therefore from both mainland China and HKSAR, and apply different regimes to interpret law. In their attempts to harmonize the conflict between both sides, the lawmakers of the Basic Law have created a unique system for its interpretation. In practice, unfortunately, this unique system still results in disputes – in particular, mainland Chinese scholars argue that when Hong Kong courts examine legislative conduct of the central government, the courts are exceeding their authority over Chinese sovereignty, whilst some Hong Kong scholars assert that the central government interferes with the independence of the Hong Kong judiciary. The case of Ng Ka-Ling and Others v Director of Immigration was the first so-called “constitutional crisis” after the reunification of Hong Kong and the mainland, and prompted conflict involving these kinds of arguments. This paper aims to analyze the different mechanisms used to interpret law in mainland China and HKSAR, describe the disputes arising from the interpretation of the Basic Law in practice, and then put forward some proposals to improve the process of interpretation of the Basic Law.