Sources of law in Hong Kong
Information based on
the Departmental publication "Legal System in Hong Kong" printed in
Several national laws of the People's
Republic of China apply in Hong Kong by virtue of Article 18 of the Basic Law.
Under Article 158 of the Basic Law, an interpretation of a provision of the Basic
Law by the Standing Committee of the National People's Congress is to be followed
by the courts of Hong Kong in applying the relevant provision.
Nature of the Basic Law
Law of the HKSAR was enacted by the National People's Congress in accordance
with the Constitution of the People's Republic of China. It is akin to a mini-constitution
for the HKSAR. It was promulgated on 4 April 1990 and took effect on 1 July 1997
on the establishment of the HKSAR. All the systems and policies practised in the
HKSAR must be based on the provisions of the Basic Law. These include the social
and economic systems; the system for safeguarding the fundamental rights and freedoms
of its residents; the executive, legislative and judicial systems; and the relevant
policies. Furthermore, no law enacted by the legislature of the HKSAR may contravene
the Basic Law.
The most prominent feature of the Basic Law is the underlying
principle of "one country, two systems" whereby the socialist system
and policies shall not be practised in the HKSAR, and the previous capitalist
system and way of life is to remain unchanged for 50 years.
Under the Basic
Law, all the laws previously in force in Hong Kong (that is, the common law, rules
of equity, ordinances, subordinate legislation and customary law) shall be maintained,
except for any that contravene the Basic Law and subject to any amendment by the
HKSAR legislature. National laws of the People's Republic of China shall not be
applied in the HKSAR except for a number of such laws relating to defence and
foreign affairs which are listed in Annex III to the Basic Law.
between the Central Authorities and the HKSAR
The National People's
Congress through the Basic Law authorises the HKSAR to exercise a high degree
of autonomy directly under the Central People's Government. The HKSAR enjoys executive,
legislative and independent judicial power, including that of final adjudication,
in accordance with provisions of the Basic Law. Although foreign affairs relating
to the HKSAR are the responsibility of the Central People's Government, the HKSAR
is authorised to conduct relevant external affairs on its own in accordance with
the Basic Law. The Central People's Government is also responsible for the defence
of the HKSAR, but the responsibility of maintaining public order in the HKSAR
is a matter for its government.
protected by the Basic Law
The Basic Law details the fundamental
rights, freedoms and duties of the residents of the HKSAR. These rights include
the right to equality before the law; freedom of speech, of the press and of publication;
freedom of association, of assembly, of procession and of demonstration; and the
right and freedom to form and join trade unions, and to strike; freedom of movement;
freedom of conscience; and freedom of religious belief. The Basic Law also guarantees
that the provisions of the International Covenant on Civil and Political Rights;
of the International Covenant on Economic, Social and Cultural Rights; and of
the International Labour Conventions as applied to Hong Kong will remain in force.
political structure of the HKSAR
Executive is the head of the HKSAR and is accountable to the Central People's
Government and the HKSAR. He is assisted in policy making by theExecutive
Council of the HKSAR. The Chief Executive presides over the Executive Council
and appoints its members.
The main powers and functions of the Government
of the HKSAR (which is headed by the Chief Executive) include the formulation
and implementation of policies, the conduct of administrative affairs and the
drawing up and introduction of budgets and legislation.
The HKSAR's legislature
Council, and the Basic Law prescribes the specific method for forming the
Legislative Council and its procedures for voting on bills and motions. Under
the Basic Law the Legislative Council's functions include the making of laws,
approving budgets and public expenditure and monitoring the work of the government
The common law and the rules of equity
and the rules of equity are to be found primarily in the judgments of the superior
courts in Hong Kong and other common law jurisdictions. In historical terms, reports
of judgments handed down by judges have, since at least the 15th century, established
in detail the legal principles regulating the relationship between state and citizen,
and between citizen and citizen. There are now some hundreds of thousands of reported
cases in common law jurisdictions which comprise the common law. The rights relating
to freedom of speech, freedom of assembly, and freedom from arbitrary arrest or
imprisonment have been spelt out in cases which were decided more than three centuries
ago. As we have seen, these have now been underpinned by provisions in the Basic
The common law's most distinguishing hallmark is reliance on a system
of case precedent, not restricted to judicial decisions generated within any single
jurisdiction, but case law from all jurisdictions throughout the common law world.
Article 84 of the Basic Law provides that the courts of the HKSAR may refer to
the precedents of other common law jurisdictions. In addition, the Court of Final
Appeal and theJudiciary
of the HKSAR is given power to invite judges from other common law jurisdictions
to participate in the judicial processes.
Statute law enacted in Hong
The vast majority of statute law in force in Hong Kong is made
locally and contained in the Laws of Hong Kong. A great deal of legislation is
made under delegated powers. This is called subsidiary legislation. For example,
an ordinance may delegate to the Chief Executive in Council (the Chief Executive
with the advice of the Executive Council) the power to make regulations to deal
with the details of the implementation of a legislative scheme.
Some aspects of Chinese customary law apply in Hong Kong.
For example, under section 13 of the New Territories Ordinance (Cap 97) the courts
may recognise and enforce Chinese customs or customary rights in relation to land
in the New Territories; and Chinese law and custom is recognised in the Legitimacy
Ordinance (Cap 184).
Over 200 international
treaties and agreements have been applied to Hong Kong. A treaty does not constitute
part of Hong Kong's domestic law until given effect by legislation. Nonetheless,
it may affect the development of the common law. It may, for example, be resorted
to by a court as an aid to interpretation. The rapidly developing rules of customary
international law can also become absorbed into the common law.