Hong Kong Basic Law

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Hong Kong Basic Law
Blcover.jpg
The Cover of Index to the Basic Law
Chinese 香港基本法
Alternative Chinese name
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

The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region (HKSAR) of the People's Republic of China (PRC). The leading document in the law of Hong Kong, it was adopted on 4 April 1990 by the Seventh National People's Congress (NPC) of the People's Republic of China, and went into effect on 1 July 1997 (replacing the Letters Patent and the Royal Instructions) when this former colony of the British Empire was handed over to the PRC.[1]

The Basic Law was drafted in accordance with 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 the PRC towards the Hong Kong Special Administrative Region. As agreed between the PRC and the Kingdom of Great Britain in the Joint Declaration, in accordance with the "One Country, Two Systems" principle, socialism as 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,[citation needed] with most Chinese legal scholars[who?] 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.[citation needed] The argument is relevant in that it affects the amount of authority that the PRC has to change the Basic Law, and the ability of the Hong Kong courts to challenge PRC domestic legislation.

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 authorization of PRC's National People's Congress,[2] 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.

Drafting process of the Basic Law[edit]

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 the 4 June 1989 Tiananmen Square protests of 1989, after voicing their views supporting the students.

Text of the Basic Law[edit]

General principles[edit]

  • The region has a high degree of autonomy and enjoys executive, legislative and independent judicial power, including that of final adjudication.[3] An implication is 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.[3]
  • 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.[3]
  • 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.[3]
  • The Hong Kong Special Administrative Region shall protect the right of ownership of private property in accordance with law.[3]

Relationship with central government[edit]

  • 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.[4]

Fundamental rights and duties[edit]

  • 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.[5]
  • 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.[5]

Political structure[edit]

  • The selection of Chief Executive and members of legislature is to be ultimately by means of universal suffrage.[6]

External affairs[edit]

  • 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. (Articles 13-14, 150-157)[7]

Interpretation of the Basic Law[edit]

Under Article 158, the power of final interpretation of the Basic Law is vested in the Standing Committee of the National People's Congress (NPCSC) which is a power also derived from the Constitution of the People's Republic of China.

Article 158 also authorises the Hong Kong courts to interpret on their own, in adjudicating cases, the provisions of the Basic Law which are within the limits of the autonomy of the Region.

According to Article 158, the courts may also interpret other provisions of the Basic Law. However, if those provisions concern affairs which are (i) the responsibility of the Central People's Government or (ii) concern the relationship between the Central Authorities and Hong Kong, AND if such interpretation will affect the judgments on the cases, the courts shall, before making the final judgment which is not appealable, seek an interpretation of the relevant provisions from the NPCSC through the Court of Final Appeal. The courts will be bound by the interpretation of the NPCSC.

Interpretations are not retroactive and do not affect cases that have already been adjudicated.

The NPCSC shall consult its Committee for the Basic Law of the Hong Kong Special Administrative Region before giving an interpretation.

To this date, the Hong Kong SAR government has sought the NPCSC to interpret the Basic Law twice:

  1. 1999: The Right of Abode issue
  2. 2005: The term of the new Chief Executive after the original Chief Executive resigned.

On two other occasions the NPCSC interpreted the Basic Law on its own initiative:

  1. February 1997: The NPCSC ruled that 24 colonial-era ordinances contravened the Basic Law[8][9]
  2. 2004: Universal suffrage in 2007 and 2008

One other occasion the Court of Final Appeals requested an interpretation from the NPCSC

  1. 2011: FG Hemisphere Associates LLC v. the Democratic Republic of Congo concerning whether Hong Kong has a qualified state immunity rule or an absolute state immunity rule[10]

In addition to interpretations of the Basic Law, the NPCSC has interpreted the nationality law to define who is considered a Chinese national in Hong Kong.[11]

Amendment of the Basic Law[edit]

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[edit]

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 (July 1 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 Chi-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, based on some insignificant Chinese words 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 criminals 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.

See also[edit]

References[edit]

  1. ^ Walsh, Pattie. Hong Kong employment law: a practical guide. CCH Hong Kong Limited, 2008. ISBN 988-17-5453-4, ISBN 978-988-17-5453-0. p 3.
  2. ^ http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1226&context=bjil
  3. ^ a b c d e f "Chapter I : General Principles". Basic Law of Hong Kong Special Administrative Region: 11–14. July 2006. 
  4. ^ "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. 
  5. ^ 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. 
  6. ^ "Chapter IV : Political Structure". Basic Law of Hong Kong Special Administrative Region: 30–57. July 2006. 
  7. ^ "Chapter VII : External Affairs". Basic Law of Hong Kong Special Administrative Region: 77–81. July 2006. 
  8. ^ http://www.doj.gov.hk/eng/public/basiclaw/basic7-2.pdf
  9. ^ http://www.legco.gov.hk/yr98-99/english/bc/bc05/papers/558e02.pdf
  10. ^ http://www.legco.gov.hk/yr10-11/english/hc/papers/hc1007ls-101-e.pdf
  11. ^ http://www.gov.hk/en/residents/immigration/chinese/law.htm

External links[edit]