Hong Kong Basic Law

Hong Kong Basic Law

The Cover of the Basic Law, published by the Constitutional and Mainland Affairs Bureau
Chinese 香港基本法
Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China
Traditional Chinese 中華人民共和國香港特別行政區基本法
Simplified Chinese 中华人民共和国香港特别行政区基本法
Politics and government
of Hong Kong
Foreign relations

Related topics

Hong Kong portal

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. Being a national law of the People's Republic of China,[1][2] 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 went into effect on 1 July 1997 when the 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.[3]

The Basic Law was drafted according to the Sino-British Joint Declaration on the Question of Hong Kong (The Joint Declaration), signed between the Chinese and British governments on 19 December 1984. The Basic Law stipulates the basic policies of China towards the Hong Kong Special Administrative Region. As agreed between the PRC and the United Kingdom in the Joint Declaration, in accordance with the "one country, two systems" principle, socialism practised in the PRC would not be extended to Hong Kong. Instead, Hong Kong would continue its previous capitalist system and its way of life for a period of 50 years after 1997. A number of freedoms and rights of the Hong Kong residents are also protected under the Basic Law.

The source of authority for the Basic Law is somewhat controversial, with most Chinese legal scholars arguing that the Basic Law is a purely domestic legislation deriving its authority from the Constitution of the People's Republic of China, and with 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.

In composition, Hong Kong Basic Law serves as the instrument on domestic common law in Hong Kong SAR and the legal jurisdiction of the Hong Kong SAR government, by the authorisation of PRC's National People's Congress,[4] since Hong Kong SAR's military regime and diplomatic affairs are charged by the PRC government and not by any (existing or former) foreign power, and the Joint Declaration between PRC and the British government on Hong Kong will be acting as the historic interim agreement on the handover of Hong Kong to People's Republic of China. Moreover, Hong Kong has its own constitutional representative in the National People's Congress in People's Republic of China.

Drafting process of the Basic Law

The Basic Law was drafted by a Committee composed of members from both Hong Kong and the Mainland. The committee is known as the Drafting Committee for the Basic Law and chaired by Ji Pengfei. A Basic Law Consultative Committee formed purely by 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 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

General principles

Relationship with central government

Fundamental rights and duties

Political structure

External affairs

Interpretation of the Basic Law

The basic principles on interpreting the Basic Law is set out in Article 158. According to Article 158(1), the power of final interpretation of the Basic Law is vested in the Standing Committee of the National People's Congress (NPCSC). This is consistent with the NPCSC's general power to interpret national laws of the PRC, as provided by Article 67(4) of the Constitution of the People's Republic of China. Before giving an interpretation on 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.[10] 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.

Hong Kong courts may also interpret provisions of the Basic Law that do not concern matters within Hong Kong's autonomy during adjudication. However, the power to interpret these provisions is fettered by Article 158(3) of the Basic Law. The limitation only applies when the case being adjudicated cannot be further appealed.[11] In other words, the case being adjudicated must be one that is being heard by the Hong Kong Court of Final Appeal. Article 158(3) provides that the court must seek a binding interpretation from the NPCSC when the Basic Law provision to be interpreted satisfies certain conditions.

The Court of Final Appeal formulated the conditions into 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.[12] Provisions satisfying the classification condition are considered to be "excluded provisions", suggesting that they are excluded from the Court of Final Appeal'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.[12]

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, among other things, the jurisdiction of Hong Kong courts over acts of state. 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 the new Chief Executive after the original Chief Executive 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 Hong Kong public institution. 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 substantial requirements of a lawful oath contained 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:

See also

References

  1. 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.
  2. Ng Ka Ling v Director of Immigration, FACV 14/1998 (29 January 1999), at para. 63; judgment text also available from HKLII
  3. 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.
  4. http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1226&context=bjil
  5. 1 2 3 4 5 6 "Chapter I : General Principles". Basic Law of Hong Kong Special Administrative Region: 11–14. July 2006.
  6. "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.
  7. 1 2 3 4 "Chapter III : Fundamental Rights and Duties of the Residents". Basic Law of Hong Kong Special Administrative Region: 23–29. July 2006.
  8. "Chapter IV : Political Structure". Basic Law of Hong Kong Special Administrative Region: 30–57. July 2006.
  9. "Chapter VII : External Affairs". Basic Law of Hong Kong Special Administrative Region: 77–81. July 2006.
  10. Basic law, Art 158(4)
  11. Basic Law, Art 158(3).
  12. 1 2 Ng Ka Ling v Director of Immigration, FACV 14/1998 (29 January 1999), at para. 89
  13. "Full Text: The Practice of the "One Country, Two Systems" Policy in the Hong Kong Special Administrative Region". Xinhua News Agency.
  14. "Beijing's 'White Paper' Sets Off a Firestorm in Hong Kong". The New York Times. 11 June 2014. Retrieved 23 June 2014.
  15. 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
  16. "Hong Kong unsettled by case of 5 missing booksellers". The Big Story. Associated Press. 3 January 2016.
  17. "Disappearance of 5 Tied to Publisher Prompts Broader Worries in Hong Kong". The New York Times. 5 January 2016.
  18. 1 2 Ilaria Maria Sala (7 January 2016). "Hong Kong bookshops pull politically sensitive titles after publishers vanish". The Guardian.
  19. "Unanswered questions about the missing booksellers". EJ Insight. 5 January 2016.
  20. All in it together: The bookseller’s ordeal in China could happen to any of us, HKFP, 20 June 2016
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