Hong Kong Basic Law
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Executive branch: Chief Executive Legislative branch: Legislative Council Judicial branch: |
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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 December 19, 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 United Kingdom 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, with most Chinese legal scholars arguing that the Basic Law is 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 impacts 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.
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Drafting process of the Basic Law
- The Basic Law was drafted by a Committee composed of members from both Hong Kong and the Mainland. 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 NPC, together with the designs for the flag and emblem of the HKSAR.
- Some members of the Basic Law drafting committee were ousted by Beijing following the 4 June 1989 Tiananmen Square incident, after voicing their views supporting the students.
General principles enshrined under the Basic Law
- The HKSAR has a high degree of autonomy and enjoys executive, legislative and independent judicial power, including that of final adjudication (Article 2). An implication is that the former judicial recourse by appealing to the English 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 HKSAR shall be composed of permanent residents of Hong Kong in accordance with the relevant provisions of the Basic Law. (Article 3)
- The socialist system and policies shall not be practised in the HKSAR, and the previous capitalist system and way of life shall remain unchanged for 50 years. (Article 5)
- 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 HKSAR. (Article 8)
- The HKSAR shall protect the right of ownership of private property in accordance with law. (Article 6)
- 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. (Articles 25-26)
- 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. (Article 28)
- 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. (Articles 27-38).
- 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. (Article 39)
- The selection of Chief Executive is to be ultimately by means of Universal Suffrage. (Article 45)
- Although the PRC has responsibility for Hong Kong's foreign relations and defence, Hong Kong is permitted to participate in international organizations or conferences in appropriate fields limited to states and affecting the HKSAR, or may attend in such other capacity as may be permitted by the PRC government and the international organization or conference concerned, and may express their views, using the name "Hong Kong, China". The HKSAR may also, also using the name "Hong Kong, China", participate in international organizations and conferences not limited to states.
Interpretation of the Basic Law
- Under Article 158, the power of final interpretation of the Basic Law lies on Standing Committee of the National People's Congress(NPCSC). Based on Article 158, it is through the court that such request of interpretation is made. However, starting from the Right of Abode issue in 1999, no such request of interpretation is made through the court. The government bypassed the legal system by submitting a "Report" to the State Council, proposing the State Council to make a request to NPCSC to interpret the Basic Law.
- The NPCSC have also the power to interpret the Basic Law on its own without the need of a request.
- Up this date, the government has sought the NPCSC to interpret the Basic Law twice, and on another occasion the NPCSC interpreted the basic law on its own.
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, where it is esimated that over five hundred thousands people took to the streets, in July 1, 2003. After the demonstrations, the government indefinitely shelved its drafted law.
- The possibility of universal suffrage in 2007 and 2008. Following the Article 23 controversy, a sector of the population, led by the democratic camp, has begun to call for universal suffrage for the election of the Chief Executive in 2007, and for all seats of the Legislative Council in 2008. While this is not ruled out under Articles 45 and 67 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 67. 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 April 26, 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 the government imposed a pay-cut to the Civil Servants, causing the above two questions to arise.
- 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 in March 10, 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 April 6, 2005, and the standing committee ruled on April 27, 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 the previous's remaining term. Hong Kong residents that favor autonomy view the "interpretation" from the Standing Committee as an intrusion into Hong Kong legal system by the central government in violation of the spirit of the One Country, Two Systems policy, and breaking the rule of law.
- No formal terms for extradition of criminals exists. 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, particular 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 abducted 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.