Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China is the supreme law in the Hong Kong Special Administrative Region and a national law of the People's Republic of China. Comprising nine chapters, 160 articles and three annexes, the Basic Law was adopted on 4 April 1990 by the Seventh National People's Congress and signed by President Yang Shangkun.
|Hong Kong Basic Law|
The cover of the Basic Law, published by the Constitutional and Mainland Affairs Bureau
|Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China|
The Basic Law came into effect on 1 July 1997 in Hong Kong when the sovereignty over Hong Kong was transferred from the United Kingdom to the People's Republic of China, replacing Hong Kong's colonial constitution of the Letters Patent and the Royal Instructions.
The Basic Law was drafted on the basis of the Sino-British Joint Declaration signed between the Chinese and British governments on 19 December 1984, represented by Premier Zhao Ziyang and Prime Minister Margaret Thatcher respectively. 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.
Shortly after the Sino-British Joint Declaration was signed in 1984, which set the basis of the transfer of Hong Kong's sovereignty from the United Kingdom to China, the National People's Congress set up the Drafting Committee for the Basic Law (BLDC) in 1985.:444 The committee was responsible for writing the draft Basic Law. In June 1985, the Standing Committee of the National People's Congress approved the BLDC membership list, which consisted of 36 members from China and 23 members from Hong Kong.:444 Twelve of the 23 members from Hong Kong were connected to the city's business and industrial sectors.:11:444 The committee was chaired by Chinese diplomat Ji Pengfei.
A Basic Law Consultative Committee consisting of Hong Kong community leaders was also established in 1985 to collect views on the draft in Hong Kong.
The first draft was published in April 1988, followed by a five-month public consultation. 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.
On 4 June 1989, pro-democracy camp BLDC members Martin Lee and Szeto Wah declared that they would suspend their work in the BLDC in light of the military crackdown of the Tiananmen Square protests of 1989.:23 In September 1989, Lee announced that he would return to the BLDC as many in Hong Kong had urged him to do so.:23 Nevertheless, Beijing expelled Lee and Szeto from the BLDC in October 1989 as "subversives".:15 Lee and Szeto had voiced support for student activists in Beijing and had led the Hong Kong Alliance in Support of Patriotic Democratic Movements in China, an organisation instrumental in assisting political dissidents leave China after the military crackdown on 4 June 1989.:131–132
Text of the Basic LawEdit
- 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 governmentEdit
- 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 dutiesEdit
- 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.
- Chief Executive and members of the legislature is to be ultimately selected by universal suffrage upon nomination by a nomination committee.
- 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)
The Basic Law can be interpreted by Hong Kong courts in the course of adjudication and by the Standing Committee of the National People's Congress (NPCSC), a political parliamentary institution. As of 7 November 2016, the NPCSC has interpreted the Basic Law on five occasions.
Of the five interpretations to date, only one interpretation was sought by the Court of Final Appeal (CFA). The 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 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 of the two occurred in 2004, and concerned the amendment of the Chief Executive and the Legislative Council election methods for 2007 and 2008 respectively. The second was issued in November 2016 on the substantive requirements of lawful oaths and affirmations as stipulated in Article 104 of the Basic Law.
As interpretations by the NPCSC are not retroactive, an interpretation on the Basic Law does not affect cases that have already been adjudicated.
The basic principles for interpreting the Basic Law are described in Article 158 and case law. According to Article 158(1), the NPCSC holds the power of final interpretation. This is consistent with the NPCSC's general power to interpret Chinese national laws as provided by Article 67(4) of the Constitution of the People's Republic of China.:222 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.
Hong Kong courts may also interpret the Basic Law during adjudication. The NPCSC allows Hong Kong courts to interpret provisions of the Basic Law when adjudicating cases on their own only when the provisions interpreted are within the limits of Hong Kong's autonomy. Hong Kong courts can also interpret provisions on matters for which the Central People's Government is responsible or those concerning the relationship between the Central government and Hong Kong, provided that the case is being heard by the CFA, that the interpretation will affect the judgments of the case and that the CFA has sought a binding NPCSC interpretation on the matter.
To decide whether an NPCSC interpretation should be sought, the CFA applies a two-stage approach based on Article 158(3) formulated in Ng Ka Ling v Director of Immigration. The first stage concerns the "classification condition", which 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.:32–33 Provisions satisfying the classification condition are "excluded provisions", suggesting that they are excluded from the CFA's power of interpretation. When an excluded provision helps the court to construe a non-excluded provision, the CFA is not required to request an NPCSC interpretation on the former provision. Instead, the CFA applies the "predominant test", in which the court asks which provision is predominantly the one needed to be interpreted in the present adjudication.:33 The second test concerns whether the "necessity condition" is satisfied. The condition is satisfied when the court needs the excluded provision to be interpreted and that the interpretation will affect the judgment on the case.:30–31
Hong Kong courts use the purposive approach to interpret the Basic Law. Since Hong Kong is a separate legal system from that in mainland China, its courts are bound to adopt the common law approach during interpretation.:222 The courts construe the Basic Law's language to find its legislative intent;:223–224 the legislator's intent alone is not considered the legislative intent.:223 When construing provisions of the Basic Law, the courts are bound to consider their context and purpose, and ambiguities in the Basic Law are to be resolved with principles and purposes stated in the Chinese Constitution and other materials.:28 Yet, the courts treat the Basic Law as a "living instrument" that adapts to changing needs and circumstances.:28:125 While Hong Kong courts account for the historical context of the Basic Law, they also consider "new social, political and historical realities".:563
Disputes from interpretationEdit
Interpretation of the Basic Law by the Hong Kong courts and the NPCSC is a politically contentious issue. Albert Chen has described NPCSC interpretations to be the "major cause of constitutional controversies" since the handover.:632
The constitutional powers of the Hong Kong judiciary was first contested in HKSAR v Ma Wai Kwan, which was decided by the Court of Appeal 28 days after the handover. The applicants argued that the Provisional Legislative Council, which was established unilaterally before the handover, was unlawful, which would void any law it enacted. The court dismissed this argument. Among other reasons, the court held that as a local court it had no power to review an act of a sovereign authority.:633 The court reasoned that since Article 19 of the Basic Law did not expand its judicial powers and that it had no power to review the validity of a sovereign act under colonial rule, it did not hold such power after the handover.:633 While Justice Gerald Nazareth agreed with the majority decision, he questioned whether the constitutional structure of China and that of the United Kingdom were analogous. He also noted there was no "detailed review" of the Chinese constitution during the trial.:352–353 Johannes Chan commented that the lack of judicial review power to review acts of Parliament reflected parliamentary supremacy, a doctrine borne out of unwritten constitutional systems.:376 Since China has a written constitution and that the Basic Law describes the relationship between Hong Kong and the central government unlike the colonial Letters Patent and the Royal Instructions, Chan questioned whether parliamentary supremacy still fully applies in Hong Kong after 1997.:377
In the Ng Ka Ling case, in which the CFA tried to assert that it has powers to review acts of the National People's Congress (NPC) or the NPCSC to determine whether they are consistent with the Basic Law.:635
The Hong Kong government later 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.
Although the Basic Law has not been amended 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).
This article's Criticism or Controversy section may compromise the article's neutral point of view of the subject. (December 2018)
- 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.[not in citation given]
- 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.
- Cheng, Joseph Y. S. (1 July 1989). "The Democracy Movement in Hong Kong". International Affairs. 65 (3): 443–462. doi:10.2307/2621722. JSTOR 2621722.
- Lo, Shiu Hing (June 1992). "The Politics of Cooptation in Hong Kong: A Study of the Basic Law Drafting Process". Asian Journal of Public Administration. 14 (1): 3–24. doi:10.1080/02598272.1992.10800260.
- Chang, Parris H. (January 1992). "China's Relations with Hong Kong and Taiwan". The Annals of the American Academy of Political and Social Science. 519: 127–139. JSTOR 1046758.
- "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.
- "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.
- Chen, Albert H. Y. (2006). "Constitutional Adjudication in Post-1997 Hong Kong". Pacific Rim Law & Policy Journal. 15 (3): 627–682.
- Basic Law, Article 158(3).
- Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211.
- Basic Law, Article 158(4).
- Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4.
- W v Registrar of Marriages  3 HKLRD 90 (CFA).
- Leung Sze Ho Albert v Bar Council of Hong Kong Bar Association  5 HKLRD 542 (CA).
- HKSAR v Ma Wai Kwan, David & Others  HKLRD 761 (CA).
- Chan, Johannes (1997). "The Jurisdiction and Legality of the Provisional Legislative Council". Hong Kong Law Journal. 27 (3): 374–387.
- "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.
- "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.
- 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