The Constitutional Crisis in Hong Kong—Is It Over?

The judgment of the Hong Kong Court of Final Appeal ("CFA") in the right of abode case has created several constitutional issues, three of which will be addressed in this paper. They are: (1) whether the CFA has the authority to review Chinese legislation; (2) whether the National People's Congress Standing Committee ("NPCSC") should interpret or amend the Basic Law; and (3) whether an original legislative intent approach or a purposive approach should be adopted for the interpretation of the Basic Law. Prompt resolution of these issues is necessary to resolve constitutional uncertainty in Hong Kong. Successful resolution of these issues may require both the NPCSC and the CFA to adopt their own interpretive approaches and exercise their own constitutional authority in strict compliance with the procedures of the Basic Law.

Adoption of this unique constitutional mechanism would preserve Hong Kong's common law system while allowing the concept of "one country, two systems" to be implemented.