On 22 February 2017, former Chief Executive (CE) Tung Chee-hwa was reported to have said that even if John Tsang wins the chief executive elections later this month, Beijing could refuse to appoint him. The current CE candidates are John Tsang, Carrie Lam and Woo Kwok-hing. It is highly speculated that Carrie Lam is Beijing’s preferred candidate, whilst John Tsang enjoys the most popular support.
Beijing’s power of appointment
Article 45 of the Basic Law, Hong Kong’s constitution, provides that the CE shall be selected by election or through consultations held locally and be appointed by the Central Government. Beijing has repeated one time after another that its power of appointment is absolute and not a rubber stamp. Thus, even if a candidate is “selected”, Beijing still has the power to not “appoint” him as CE.
Basic Law as a common law and civil law document
The Basic Law was drafted by the Basic Law Drafting Committee comprising of 59 lawyers or academics, 23 from Hong Kong and 36 from China. As the PRC is a civil law jurisdiction and Hong Kong of common law, the Basic Law was intended to be read as both a common law document (as Hong Kong’s constitution) and civil law document (as PRC’s domestic legislation). This is where the problem lies.
In the UK, the Queen’s power is ceremonial
In the UK, the power of appointing a Prime Minister rests on the Queen. After a general election, the Queen will appoint a Prime Minister who has most support in the House of Commons. This usually means that the leader of the most popularly elected party will be appointed as Prime Minister. The Queen’s power however is ceremonial and she is expected to appoint the most popular leader as Prime Minister.
NPCSC is more powerful than the Queen
After Hong Kong’s transfer of sovereignty from UK to PRC in 1997, the Central Government, through the Standing Committee of the National People’s Congress (NPCSC), became Hong Kong’s sovereign. Unlike the Queen, the NPCSC’s power is not merely ceremonial. The NPCSC Chairman, Zhang Dejiang, is a member of the Politburo Standing Committee, the top decision making body of the Communist Party.
NPCSC has “free-standing” power to interpret Basic Law
Whilst Hong Kong’s common law understanding may presume the power of appointment to be ceremonial, its PRC civil law counterparts would understand otherwise. To China, the power of the NPCSC is very real. In fact, even under the Basic Law, Article 158 empowers the NPCSC to interpret the Basic Law. The courts of Hong Kong have recognized the NPCSC’s power of interpretation to be “free-standing.”
The Basic Law is a mesh of two political systems
Comparing the power of the Queen and the NPCSC, we see that conflicting interpretations of the Basic Law demonstrates a clash of two political systems. Whilst Hong Kong adopts a Westminster-style system from the UK, the NPCSC interprets the Basic Law as a domestic legislation from a civil law perspective. Due to political reasons, China’s leadership interprets the Basic Law in the light of national interests.
Overseas examples of mixed legal systems
An example of a mixed legal system is Canada, where Quebec is governed by civil law whilst rest of Canada is common law. Under Canada’s Constitution, Quebec is allowed to maintain its French civil law system. The country’s highest court, the Canadian Supreme Court, is chaired by both civil and common law judges and is a bilingual court. All judgments are written in French and English.
Unlike Canada, there is no such organ within Hong Kong’s political structure chaired by both civil law and common law judges who are taught to be sensitive to each other’s legal systems. Hong Kong’s lawyers and judges are mostly untrained in PRC civil law. Thus, as we go back to the original question – it seems that even if a candidate wins a CE election, it is possible that he may not be appointed as the CE by the Central Government. But there’s only one way to find out.