Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China is the constitutional document of the Hong Kong Special Administrative Region. A national law of the People's Republic of China, the Basic Law was adopted on 4 April 1990 by the Seventh National People's Congress and signed by President Yang Shangkun.
The Basic Law came into effect on 1 July 1997 when sovereignty over Hong Kong was transferred from the United Kingdom to the People's Republic of China, replacing the Hong Kong's colonial constitution comprising the Letters Patent and the Royal Instructions.
The Basic Law was drafted according to the Sino-British Joint Declaration, which was signed between the Chinese and British governments on 19 December 1984. The Basic Law stipulates the basic policies of China regarding the Hong Kong Special Administrative Region. As stipulated in the Joint Declaration and following the "one country, two systems" principle, socialism practised in mainland China would not be extended to Hong Kong. Instead, Hong Kong would continue its capitalist system and way of life for 50 years after 1997.
The Hong Kong Basic Law sets out the sources of law, the relationship between the Hong Kong SAR and the Central Government, the fundamental rights and freedoms of Hong Kong residents, and the structure and functions of the branches of local government, and it provides for the amendment and interpretation of the Basic Law. The courts of Hong Kong are given the power to review acts of the executive or legislature and declare them invalid if they are inconsistent with the Basic Law.
The source of authority for the Basic Law is disputed. Chinese legal scholar Rao Geping argues that the Basic Law is a purely domestic legislation deriving its authority from the Constitution of the People's Republic of China, while some legal scholars arguing that the Basic Law derives its authority directly from the Sino-British Joint Declaration. The argument is relevant in that it affects the level of authority that the PRC has in making any changes to the Basic Law. It is also essential in determining the Hong Kong courts' jurisdiction in issues related to the PRC domestic legislations.
Drafting process of the Basic Law
The Basic Law was drafted by a committee with members from both Hong Kong and the Mainland. The committee was known as the Drafting Committee for the Basic Law and chaired by Ji Pengfei. A Basic Law Consultative Committee formed of Hong Kong people was established in 1985 to canvass views in Hong Kong on the drafts.
The first draft was published in April 1988, followed by a five-month public consultation exercise. The second draft was published in February 1989, and the subsequent consultation period ended in October 1989. The Basic Law was formally promulgated on 4 April 1990 by the National People's Congress, together with the designs for the Regional Flag and Regional Emblem of the HKSAR.
Some members of the Basic Law Drafting Committee, such as pro-democracy camp members Martin Lee and Szeto Wah, were ousted by Beijing following 4 June 1989 Tiananmen Square protests of 1989, after voicing their views supporting the students.
Text of the Basic Law
- The Hong Kong Special Administrative Region is part of the People's Republic of China.
- The region has a high degree of autonomy and enjoys executive, legislative and independent judicial power, including that of final adjudication. This means that the former judicial recourse by appealing to the United Kingdom's Judicial Committee of the Privy Council would no longer be available. Instead, the Court of Final Appeal was established within the HKSAR to take up the role.
- The executive authorities and legislature of the Hong Kong Special Administrative Region shall be composed of permanent residents of Hong Kong in accordance with the relevant provisions of the Basic Law.
- The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years.
- The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law (such as Chinese clan law) shall be maintained, except for any that contravene the Basic Law and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.
- The Hong Kong Special Administrative Region shall protect the right of ownership of private property in accordance with law.
Relationship with central government
- The laws in force in Hong Kong shall be the Basic Law, the laws previously in force in Hong Kong as provided by Article 8, and the laws enacted by the legislature. National laws shall not be applied in Hong Kong unless listed in Annex III and applied locally by promulgation or legislation.
Fundamental rights and duties
- All Hong Kong residents shall be equal before the law. Permanent residents of the HKSAR shall have the right to vote and the right to stand for election in accordance with law.
- Hong Kong residents shall have, among other things, freedom of speech, freedom of the press and of publication; freedom of association, freedom of assembly, freedom of procession, of demonstration, of communication, of movement, of conscience, of religious belief, and of marriage; and the right and freedom to form and join trade unions, and to strike.
- The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.
- 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 HKSAR.
- The selection of Chief Executive and members of legislature is to be ultimately by means of universal suffrage.
- Although the PRC is responsible for Hong Kong's foreign affairs and defence, Hong Kong is permitted to participate in international organisations or conferences in certain fields limited to states and directly affecting the HKSAR. It may attend in such other capacity as may be permitted by the PRC government and the international organisation or conference concerned, and may express their views, using the name "Hong Kong, China". The HKSAR may also, using the name "Hong Kong, China", participate in international organisations and conferences not limited to states. The Hong Kong Special Administrative Region may on its own maintain and develop relations and conclude and implement agreements with foreign states and regions and relevant international organizations in the appropriate fields, including the economic, trade, financial and monetary, shipping, communications, tourism, cultural and sports fields.(Articles 13–14, 150–157)
Interpretation of the Basic Law
Article 158 describes the basic principles on interpreting the Basic Law. According to Article 158(1), the Standing Committee of the National People's Congress (NPCSC) holds the power of final interpretation. This is consistent with the NPCSC's general power to interpret national laws of China as provided by Article 67(4) of the Constitution of the People's Republic of China. Before interpreting the Basic Law, the NPCSC is required to consult the Committee for the Basic Law of the Hong Kong Special Administrative Region, a subcommittee under itself. The NPCSC also confers Hong Kong courts the power to interpret provisions of the Basic Law when adjudicating cases, provided that the provisions interpreted are within the limits of Hong Kong's autonomy.
During adjudication, Hong Kong courts can also interpret Basic Law provisions concerning matters outside Hong Kong's autonomy. However, if such interpretation occurs in a case being heard by the Court of Final Appeal (CFA) and that the interpretation will affect the judgments of the case, then the CFA must first seek an NPCSC interpretation on the matter.
To decide whether an NPCSC interpretation should be sought, the CFA has formulated a two-stage approach based on Article 158(3) in the case of Ng Ka Ling v Director of Immigration. The first stage concerns the satisfaction of the "classification condition". The condition is satisfied if the provision to be interpreted concerns either affairs within the responsibility of the Central People's Government or the relationship between the Central Authorities and Hong Kong. Provisions satisfying the classification condition are considered to be "excluded provisions", suggesting that they are excluded from the CFA's power of interpretation. The second test concerns whether the "necessity condition" is satisfied. The condition is satisfied when the court is required to interpret the excluded provision during adjudication, and that the interpretation will affect the judgment on the case.
As interpretations by the NPCSC do not have retroactive effect, an interpretation on the Basic Law does not affect cases that have already been adjudicated.
As of 7 November 2016, the NPCSC has interpreted the Basic Law on five occasions. Out of the five, only one interpretation was sought by the Court of Final Appeal. That interpretation was requested in the 2011 case of Democratic Republic of Congo v FG Hemisphere Associates LLC and it concerned the jurisdiction of Hong Kong courts over acts of state, among other matters. The Government of Hong Kong had sought two NPCSC interpretations on Basic Law provisions regarding the right of abode and the term of office of a new Chief Executive after his predecessor has resigned before the end of his term, in 1999 and 2005 respectively. The NPCSC had also interpreted the Basic Law twice on its own initiative, without being requested by any branch of government in Hong Kong. The first interpretation occurred in 2004 and concerned the amendment of the election method for the Chief Executive and the Legislative Council in 2007 and 2008. The second of such interpretation was issued in November 2016 on the substantive requirements of a lawful oath as stipulated in Article 104 of the Basic Law.
Amendment of the Basic Law
Although the Basic Law has not been amended so far since its promulgation, the procedures for amendments to the Basic Law are laid out in Article 159. No amendments can "contravene the established basic policies of the People's Republic of China regarding Hong Kong".
The power to propose amendments is granted to the Standing Committee of the National People's Congress, the State Council of the People's Republic of China and the Hong Kong Special Administrative Region. The proposed amendments require the approval of the Chief Executive of Hong Kong, two-thirds of the Legislative Council of Hong Kong members and two-thirds of the deputies representing Hong Kong in the National People's Congress, if they are proposed within Hong Kong, and can only be proposed by either the Legislative Council of Hong Kong or the Chief Executive of Hong Kong. In the former case, the amendment can be suggested by any member and debated and voted upon in accordance with the Standing Orders, after which it is voted upon by the Hong Kong deputies to the NPC, before reaching the Chief Executive for his/her approval. In the latter case, the Chief Executive suggests the amendment, which is then debated and voted upon by both the Legislative Council of Hong Kong and the Hong Kong deputies to the NPC. If initiated within the NPC, the suggested amendment must first be placed on the agenda by the Presidium before being debated and voted upon. Either way, the amendment must also be approved by the other side (e.g. by the NPC for those amendments initiated within the Hong Kong Special Administrative Region).
Controversial issues in relation to the Basic Law
After the reunification of Hong Kong in 1997, the Basic Law came under the spotlight for the following controversial issues:
- The Right of Abode issue in 1999, during which the Government sought an interpretation of Articles 22 and 24 from the Standing Committee of the National People's Congress to avoid a potential influx of over a million Mainland residents (according to Government estimates) into Hong Kong. This has triggered a debate on judicial independence in Hong Kong.
- Article 23 of the Basic Law requires Hong Kong to enact laws on its own to prohibit acts including treason, secession, sedition, subversion against the Central People's Government, and theft of state secrets. This became a subject of considerable controversy when the Government of the HKSAR attempted to introduce legislation to implement the Article in 2002 to 2003. The proposed legislation gave much power to the police, such as not requiring a search warrant to search a home of a "suspected terrorist". This has led to public outcry, and resulted in massive demonstrations (1 July marches), where it is estimated that over five hundred thousand people took to the streets, on 1 July 2003. After the demonstrations, the government indefinitely shelved its drafted law.
- The possibility of universal suffrage in 2007 and 2008. universal suffrage for the election of the Chief Executive in 2007, and for all seats of the Legislative Council in 2008 is not ruled out under Articles 45 and 68 of the Basic Law, the conservative camp and legal experts in Mainland China have claimed that this would violate the "Principle of gradual and orderly progress" and "in the light of the actual situation" set forth in Articles 45 and 68. The controversy was finally settled through interpretation of Basic Law by the Standing Committee of the National People's Congress, which ruled out the possibility of universal suffrage in 2007 and 2008 on 26 April 2004.
- The question of whether pay-cuts for civil servants and having a deficit budget are allowed under the Basic Law. According to the Article 100 of the Basic Law, the civil servants may remain in employment with pay, allowances, benefits and conditions of service no less favourable than before the handover. Article 107 stated the SAR Government should follow the principle of keeping the expenditure within the limits of revenues in drawing up its budget. During the economic downturn after 1997, there was a growing fiscal deficit (and, in 2007/08 a record surplus). The government imposed a pay-cut on the Civil Service during the economic downturn, and then sharply increased salaries during the recovery.
- The term of the new Chief Executive after the original Chief Executive resigned. This question arose after the original Chief Executive Tung Chee-hwa resigned on 10 March 2005. The legal community and the pro-democracy camp claim that the term of the new Chief Executive should follow Article 46, that is, a 5-year term. However, the Hong Kong government, some Beijing figures and the pro-Beijing camp claim that it should be the remaining term of the original Chief Executive, by a technicality in the Chinese version of the Basic Law, introducing the remaining term concept. The HKSAR government has sought interpretation from the Standing Committee of the National People's Congress on 6 April 2005, and the standing committee ruled on 27 April 2005, that the Annex I of the Basic Law requires that if any Chief Executive should resign on or before 2007, the new Chief Executive should serve out the remainder of his predecessor's term. Hong Kong residents who favour autonomy view the "interpretation" from the Standing Committee as an intrusion into the Hong Kong legal system by the central government in violation of the spirit of the One Country, Two Systems policy, compromising the rule of law.
- No formal terms for extradition of suspects exist. Article 95 provides for mutual judicial assistance between Hong Kong and the PRC; however, serious stumbling blocks, such as capital punishment stand in the way of a formal understanding of extradition. Additionally, HKSAR authorities have ruled that Articles 6 and 7 of the PRC Criminal Code does not give Hong Kong sole jurisdiction in criminal matters, particularly when a crime is committed across provincial or SAR borders. The current status quo is that Hong Kong will ask for the return of Hong Kong residents who have committed crimes in Hong Kong and are arrested in the mainland. A mainlander who commits a crime in Hong Kong and flees back to the mainland, however, will be tried in the mainland. In cases of concurrent jurisdiction, the Central Government has demanded that the trial be held in the mainland. Prominent authorities, such as Albert Chen, a professor, and Gladys Li, chairman of justice of the Hong Kong section of the International Commission of Jurists, feel that this situation has serious ramifications for judicial independence in Hong Kong.
- "One Country" vs "Two Systems" – On 10 June 2014, Beijing released a new policy report asserting its authority over the territory that basically stated that pitched a conflict between "one country" and "two systems" by stating that the interests of China ("one country") should prevail over Hong Kong's constitutional autonomy ("two systems"). This ignited criticism from many people in Hong Kong, who said that the Communist leadership was undermining the Basic Law Article 8, in that it was reneging on its pledges to abide by the policy that allows for a democratic, autonomous Hong Kong under Beijing's rule.
- The disappearances of five staff at Causeway Bay Books – an independent publisher and bookstore – between October and December 2015 precipitated an international outcry. At least two of them disappeared while in mainland China, one in Thailand. One member was last seen in Hong Kong, eventually reappearing in Shenzhen, across the Chinese border, without the necessary travel documents. While reaction to the October disappearances was muted, as unexplained disappearances and lengthy extrajudicial detentions are known to occur in mainland China, the unprecedented disappearance of a person from Hong Kong, and the bizarre events surrounding it, shocked the city and crystallised international concern over the possible abduction of Hong Kong citizens by Chinese public security bureau officials and their likely rendition, in violation of several articles of the Basic Law and the one country, two systems principle. The widespread suspicion that they were under detention in mainland China was later confirmed with apparently scripted video "confessions" and assurances by the men that they were remaining in China of their own accord. In June 2016, one of the five, Lam Wing-kee, revealed in a dramatic press conference that he and the others had been held without due process and that Lee Po had indeed been illegally abducted from Hong Kong, all by a shadowy 'Central Investigation Team' ("中央專案組" or "中央調查組").
- ^ Lim, C.L.; Chan, Johannes (2015). "Chapter 2: Autonomy and Central-Local Relations". In Chan, Johannes; Lim, C.L. Law of the Hong Kong Constitution (2nd ed.). Sweet & Maxwell. p. 55. ISBN 978-9-626-61673-4.
- ^ Ng Ka Ling v Director of Immigration, FACV 14/1998 (29 January 1999), at para. 63; judgment text also available from HKLII
- ^ Chan, Johannes (2015). "Chapter 1: From Colony to Special Administrative Region". In Chan, Johannes; Lim, C.L. Law of the Hong Kong Constitution (2nd ed.). Sweet & Maxwell. p. 9. ISBN 978-9-626-61673-4.
- ^ Basic Law, Art 5
- ^ Rao, Geping (2017-07-24). "饶戈平：宪法和基本法共同构成香港的宪制基础" [Rao Geping: Hong Kong's Constitutional Foundation is Constructed in Conjunction by the Constitution and the Basic Law]. Bauhinia (in Chinese). Retrieved 2018-01-13.
- ^ a b c d e f "Chapter I : General Principles". Basic Law of Hong Kong Special Administrative Region: 11–14. July 2006.
- ^ "Chapter II : Relationship between the Central Authorities and the Hong Kong Special Administrative Region". Basic Law of Hong Kong Special Administrative Region: 15–22. July 2006.
- ^ a b c d "Chapter III : Fundamental Rights and Duties of the Residents". Basic Law of Hong Kong Special Administrative Region: 23–29. July 2006.
- ^ "Chapter IV : Political Structure". Basic Law of Hong Kong Special Administrative Region: 30–57. July 2006.
- ^ "Chapter VII : External Affairs". Basic Law of Hong Kong Special Administrative Region: 77–81. July 2006.
- ^ Basic Law, Art 158(4)
- ^ a b Basic Law, Art 158(3)
- ^ a b Ng Ka Ling v Director of Immigration, FACV 14/1998 (29 January 1999), at para. 89
- ^ "Full Text: The Practice of the "One Country, Two Systems" Policy in the Hong Kong Special Administrative Region". Xinhua News Agency.
- ^ "Beijing's 'White Paper' Sets Off a Firestorm in Hong Kong". The New York Times. 11 June 2014. Retrieved 23 June 2014.
- ^ http://news.mingpao.com/pns/%E7%A8%8B%E7%BF%94%EF%B9%95%E4%BB%80%E9%BA%BC%E6%98%AF%E3%80%8A%E5%9F%BA%E6%9C%AC%E6%B3%95%E3%80%8B%E7%9A%84%E5%88%9D%E8%A1%B7%EF%BC%9F/web_tc/article/20150415/s00012/1429035223290?fb_action_ids=10153351923183319&fb_action_types=og.shares
- ^ "Hong Kong unsettled by case of 5 missing booksellers". The Big Story. Associated Press. 3 January 2016.
- ^ "Disappearance of 5 Tied to Publisher Prompts Broader Worries in Hong Kong". The New York Times. 5 January 2016.
- ^ a b Ilaria Maria Sala (7 January 2016). "Hong Kong bookshops pull politically sensitive titles after publishers vanish". The Guardian.
- ^ "Unanswered questions about the missing booksellers". EJ Insight. 5 January 2016.
- ^ All in it together: The bookseller’s ordeal in China could happen to any of us, HKFP, 20 June 2016
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