Constitutional Change in Hong Kong: The Legitimacy of the Provisional Legislative Council
At midnight on 30 June 1997, the sovereignty of Hong Kong was transferred from Great Britain to the People's Republic of China. Hong Kong entered upon a new incarnation, absorbed into the People's Republic as a Special Administrative Region, with its own constitution, the Basic Law, designed to ensure "one country, two systems'' in accordance with the agreement for the transfer reached by Britain and China. Under the Basic Law, Hong Kong retains as its legislature the body created by Britain known as the Legislative Council. On the transfer of sovereignty, however, the elected Legislative Council was replaced by an appointed Provisional Legislative Council. Within days the legitimacy of this body was challenged in the courts of Hong Kong. Three accused in a conspiracy case argued that the common law, under which they were charged, had, with the end of British rule, ceased to be a part of the law of Hong Kong. This argument led Hong Kong's Court ofAppeal, in HKSAR v Ma Wai-kwan, David1, to consider whether or not the Provisional Legislative Council was the properly constituted legislature of the Hong Kong Special Administrative Region. This article examines the decision and the circumstances which gave rise to so remarkable a matter ever coming before the courts.