Since the Basic Law came into operation on July 1, 1997, Hong Kong has, for the first time, a detailed written constitution which is the most fundamental piece of law that the Hong Kong courts and judges have to apply, uphold and interpret. Litigants are able to base their arguments on provisions of the Basic Law, and challenge actions that they believe are inconsistent with them.

    Legal challenges based on the Basic Law were launched immediately after the SAR courts commenced operation following a two-day holiday celebrating Hong Kong's reunification with China. The Court of Appeal, in a landmark case in July 1997, unanimously held that the Provisional Legislative Council was lawfully established by the Preparatory Committee, and that the common law had survived the reunification. Subsequently, in mid-December 1999, the Court of Final Appeal held that the national and regional flag laws enacted by the Hong Kong legislature are consistent with the freedom of expression guaranteed under the Basic Law. Another group of constitutional issues focused on the right of abode in Hong Kong of various categories of persons such as Chinese citizens born in Hong Kong, Mainland-born children of Hong Kong permanent residents, children adopted in the Mainland by Hong Kong permanent residents, and foreign nationals. Other constitutional challenges included the conditions of employment of civil servants, election of village representatives in the New Territories, transfer of sentenced persons, registration of social workers, assessment of government rent, abolition of the Provisional Urban Council and the Provisional Regional Council, right to use the Chinese language in courts, and freedom to travel and enter the HKSAR.

    In particular, in January 1999, the Court of Final Appeal delivered its judgments in two sets of landmark cases involving the right of abode issues. The Court of Final Appeal upheld the validity of the Provisional Legislative Council. However, there was public concern that the parts of the judgments in relation to the entitlement to right of abode would result in large numbers of people coming to Hong Kong and exerting a great strain on its resources. After survey, the Government estimated that 1.6 million people in the Mainland would be able to claim right of abode in Hong Kong as a result of the judgments. The Chief Executive eventually decided, after careful analysis, to request the State Council to seek an interpretation of Articles 22(4) and 24(2)(3) of the Basic Law by the Standing Committee of the National People's Congress. Subsequently, the Standing Committee gave an interpretation on June 26, 1999.

    The interpretation by the Standing Committee has clarified the true legislative intent of the relevant provisions in the Basic Law, and was instrumental in resolving the potential population crisis. There was concern about possible adverse impact which the interpretation might have upon the rule of law. Nonetheless, the Standing Committee's power of interpretation, by virtue of Article 67(4) of the PRC Constitution and Article 158(1) of the Basic Law, is part of the new constitutional order of Hong Kong enshrined in the Basic Law, and is part and parcel of the rule of law in Hong Kong. The Court of Final Appeal has in another judgment in December 1999 confirmed that the interpretation by the NPCSC is valid and binding, and the courts of Hong Kong are under a duty to follow it.

    Legal challenges are a normal and expected phenomenon in the early years of the implementation of the Basic Law and demonstrate amply that the rule of law remains intact in Hong Kong. As more challenges based on the Basic Law are determined, uncertainties will be removed and principles of interpretation will emerge. This will bring added strength and vigour to the Basic Law, and reinforce its effectiveness in determining the rights, obligations, powers and privileges guaranteed to the people of Hong Kong.