Bulletin Number Five 1986

Conference on Constitutional Law and Basic Laws The Conference on Constitutional Law and Basic Laws, co-sponsored by The United College, the Department of Government and Public Administration and the Centre for Contemporary Asian Studies (CCAS), was one of the many activities commemorating the Thirtieth Anniversary of The United College and the seventh of a series of conferences on ‘Law and State- Building in China' organized by the Chinese Law Programme, CCAS. It was held from 28th November to 2nd December, 1986 at Cho Yiu Hall and The United College Staff Common Room. Some eighty scholars, lawyers and researchers were invited to take part in the Conference. One of the aims of the Conference was to analyse, from a legal perspective, problems relating to constitutional law and basic laws — laws enacted for a particular region but with nation-wide implications. In his opening address, Mr. Justice T.L. Yang, the Coordinator of the Chinese Law Programme, pointed out that this Conference would make possible a free exchange of academic views on political and legal systems between people of different stands. During the three and a half days of the Conference, fifteen papers were presented. In addition, there were a seminar on the Conference theme and a public lecture given by Justice John P. Flaherty of the Supreme Court of the State of Pennsylvania on the ‘Origin and Nature of Basic American Law and the Role of State and Federal Courts in Interpreting American Law'. The first paper, entitled ‘The HKSAR Basic Law and the Guiding Thoughts and Basic Principles for Drafting the Constitution in Major Contemporary States', was delivered by Professor Yeh Shu-liang, Dean of the Faculty of Social Science, Shu Yan College. He pointed out that democractic states and communist states differed in their concepts of constitution: in the former, constitution was there to protect the basic rights of the people; in the latter, it was used to support the proletarian regime. He was of the opinion that in drafting the HKSAR Basic Law, principles adapted to the Hong Kong context should be followed, e.g. ‘Hong Kong people ruling Hong Kong' ， separation of powers, supremacy of the Basic Law within the SAR, representative government, and check and balance. He also held that, after 1997 ， Hong Kong would not be able to avoid the leadership of the Chinese Communist Party in certain areas. The paper of Professor C.P. Liu of Cheng Chi University, Taiwan, entitled 'Constitutionalism and Hong Kong's Basic Law', was read by Dr. C.Y. Chang (Department of Government and Public Administration, CUHK), who also served as its commentator. The author suggested that the strong points of common law, continental law and laws of socialist states should be incorporated in Hong Kong's Basic Law and that the tradition and moral concepts of the Chinese people could be the basis for consensus among parties concerned. He also pointed out some possible difficulties should the ‘one country two systems' scheme be applied to Taiwan. The papers of Dr. Thomas Chan of the Centre of Asian Studies, University of Hong Kong, and Mr. C.K. Chow, solicitor and member of the Basic Law Consultative Committee, were on the relationship between the HKSAR and the Central Government. Mr. Chow put forth some theories for resolving possible contradictions between the Basic Law and the Constitution, such as the principle of 'self- interpretation of the parent laws', the indirect application and total effect of the Constitution in Hong Kong, etc. Dr. Chan stressed in his paper that the Basic Law was no guarantee that the autonomy of the HKSAR would last. He also offered two methods for resolving constitutional crises: amendment of the Constitution and interpretation of the Constitution. On the interpretation of the Basic Law, there were also two papers. Mr. Daniel Fung, barrister and member of the Basic Law Consultative Committee, analysed China's three forms of legal interpretations —legislative, judicial and administrative -- and proposed that a constitutional court independent of both the HKSAR judicial system and the PRC judicial system be set up to deal with questions of Basic Law interpretation arising from litigations. The paper of Dr. Michael Davis, Lecturer of Law, CUHK, was on 'The HKSAR Basic Law and the Concept of Constitutional Judicial Review'. He pointed out that, through a process of dialogue among the judicial organs, the popularly elected organs of power and 6 NEWS