Reconciling Hong Kong's Final Authority on Judicial Review with the Central Authorities in China

Book excerpt: Although the formula of “One Country, Two Systems” has been implemented since 1997, it is still controversial in terms of the role of Hong Kong's final authority on judicial review under China's sovereignty. On the one hand, the power of final adjudication is vested in the Court of Final Appeal (CFA) in Hong Kong according to the Basic Law of the Hong Kong Special Administrative Region (HKSAR). On the other hand, under China's sovereignty, the constitutional role of the Hong Kong court in solving issues relating to Central Authorities within its jurisdiction is still controversial. This constitutional tension has been seen in many cases, for example in HKSAR v. David Ma Wai-Kan. This article examines the nature of Hong Kong's final authority on judicial review and its relationship with the NPCSC's authority over the interpretation of the Basic Law. It reveals that, in the context of Hong Kong under “One Country, Two Systems,” a dual structure of constitutional review has been formed: one is the judicial review of the Basic Law by Hong Kong courts at the regional level, and the other is the constitutional control of the Basic Law by the NPCSC at the national level. Furthermore, it suggests that each one should take a deferential approach so that a balance can be struck between “One Country” and “Two Systems.” In addition, it is necessary to develop some public channels to effectuate the mutual deference mechanism by showing their respective positions. To a certain extent, FG Hemisphere Associates LLC v. Democratic Republic of the Congo and Others has shown that such a mechanism is possible as Hong Kong's final authority on judicial review based on “Two Systems” is more likely to be reconciled with China's sovereignty backed by “One Country.”