Constitutional Law and Human Rights in Hong Kong―A Sourcebook

The context in which constitutional laws and human rights instruments are read is ever-changing, and this is particularly true for the Hong Kong Special Administrative Region. To understand the application of both national and local legislation and internationally recognized covenants, it is essential to be well acquainted with the documents themselves.
Constitutional Law and Human Rights in Hong Kong—A Sourcebook is a one-stop resource for teaching, learning, and researching constitutional law and human rights in Hong Kong. As a handbook of teaching materials suitable for undergraduate and postgraduate studies, it is an indispensable tool for courses such as Hong Kong Constitutional Law, Basic Law, Public Law of Hong Kong, The Law of Human Rights of Hong Kong, International Human Rights Law, International Criminal Law, International Labour Law, Law and Gender, International Environmental Law, Business and Human Rights, and Discrimination Law. Moreover, it is equally useful for teaching and research in the fields of political science, business, and other social sciences.

• Up-to-date legislation
• Condensed into a single volume
• An essential teaching and reference guide
• Applicable across multiple legal fields

Guobin Zhu is a Professor of Law at City University of Hong Kong as well as Director of the Public Law and Human Rights Forum of the School of Law and Co-Associate Director of the Centre for Public Affairs and Law, City University of Hong Kong. He is a Titular Member of the International Academy of Comparative Law, a Council Member of the Chinese Association of Constitutional Law, and a Council Member of the Chinese Society of Judicial Studies, as well as Arbitrator (Zhuhai, Qingdao, and Wuhan). His research interests cover Chinese and comparative constitutional law, the Basic Law of Hong Kong, law of human rights in Hong Kong and China, and public administration of China, and he has published widely on these topics. He received his education in China, France, and Hong Kong and has been a Visiting Scholar at Harvard Law School and Columbia Law School.

 

Mark Kielsgard is an Associate Professor of Law at City University of Hong Kong where he serves as the Programme Director for the JD programme, Associate Director and co-founder of the Public Law and Human Rights Forum of the School of Law, and is a Member of the Centre for Public Affairs and Law (CPAL). His research focuses on criminal law and human rights, and he has published widely on terrorism, genocide, and international and comparative criminal law. Prior to joining the staff at City University, Dr Kielsgard practised law in the United States for 15 years.

 

Surya Deva is an Associate Professor of Law at City University of Hong Kong and a member of the UN Working Group on Business and Human Rights. Professor Deva’s primary research interests lie in Business and Human Rights, India-China Constitutional Law, and Sustainable Development. He has published extensively in these areas and has advised various UN agencies, governments, multinational corporations, and civil society organizations. He is one of the founding Editors-in-Chief of the Business and Human Rights Journal.

The resumption of the exercise of sovereignty over Hong Kong by the People’s Republic of China (PRC) on 1 July 1997 and the establishment of the Hong Kong Special Administrative Region (HKSAR) marked the creation of a new constitutional order for Hong Kong. While “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” (Basic Law, Article 8), constitutional law built upon the Basic Law of the HKSAR has been implemented in the HKSAR ever since. Under the principle of “One Country, Two Systems”, the court system and “the legal system and principles previously in force in Hong Kong” have indeed been basically maintained (Basic Law, Article 19). Moreover, Article 39 of the Basic Law provides that the “provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region”.
With the enactment of the National Security Law in 2020, the current constitutional system in the HKSAR as well as the effect of the international framework of human rights applicable to Hong Kong is undergoing changes as we write this preface. Although it is not yet fully known how the National Security Law will impact the enjoyment of human rights and freedoms in Hong Kong in the long run, it is widely expected to have a significant impact on the contours of rights and freedoms.
We have been teaching several undergraduate and postgraduate courses in the School of Law at the City University of Hong Kong which are related to constitutional law and human rights in Hong Kong. As professors and legal scholars, we have felt the need for a convenient sourcebook containing the relevant primary materials most often referenced in the field. This book is an attempt to fill this gap. It includes materials in the form of selected core statutes and international instruments, and it will be an essential reference for courses such as Constitutional Law, Basic Law, Public Law of Hong Kong, The Law of Human Rights of Hong Kong, International Human Rights Law, International Criminal Law, International Labour Law, International Environmental Law, Law and Gender, Business and Human Rights, and Discrimination Law. As such, we hope that this sourcebook benefits both students and teachers by providing them key materials all in one place. The book will be equally of interest to researchers, lawyers, and judges engaging with issues concerning constitutional law and human rights in Hong Kong as well as for teach and research in the fields of political science, Asian studies, business, social sciences, and international studies. However, while it is not possible to include all the relevant primary resources that would be useful for such a wide range of courses and fields because of space constraints, we have done our best to pick those most relevant and exercised our discretion to create a bouquet of materials. It includes legal instruments updated as of April 2021, and it will undoubtedly need to be periodically revised to cater for changing teaching and learning needs. Lastly, the documents have been formatted to appear in a consistent style. This includes light editing of heading structure as well as changes in spelling (Oxford) and term capitalization for clarity. However, these changes do not in any way affect the content or meaning of the text. 
We would like thank HU Taige, TSE Long Hei Ronnie, NG Lok Yi Jasmine, and Eric Yang for providing us with excellent research assistance in completing this book project. We also wish to express our gratitude to the City University of Hong Kong Press for their professional assistance, and in particular, to Dr Abby Manthey, the English editor at the Press, for her efficient and meticulous editing, without which it would not have been possible to publish this work on time. 

Guobin Zhu
Mark Kielsgard
Surya Deva 
4 June 2021

PART I

CONSTITUTIONAL LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

INTRODUCTION

SECTION I THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’S REPUBLIC OF CHINA

SECTION II NATIONAL PEOPLE’S CONGRESS

AND STANDING COMMITTEE DECISIONS AND INTERPRETATIONS

SECTION III THE CONSTITUTION OF THE PEOPLE’S REPUBLIC OF CHINA

SECTION IV SELECTED NATIONAL LAWS AS APPLIED

IN HONG KONG

SECTION V SINO-BRITISH JOINT DECLARATION

 

PART II

INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

INTRODUCTION

SECTION I THE CORE INSTRUMENTS

SECTION II INTERNATIONAL CRIMINAL LAW INSTRUMENTS

SECTION III LABOUR RIGHTS

SECTION IV ENVIRONMENT AND CLIMATE

SECTION V BUSINESS AND HUMAN RIGHTS

 

PART III

SELECTED HONG KONG HUMAN RIGHTS ORDINANCES

INTRODUCTION

SECTION I HONG KONG BILL OF RIGHTS ORDINANCE

SECTION II ANTI-DISCRIMINATION ORDINANCES