Hong Kong Basic Law

Hong Kong Basic Law

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
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, 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 is 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 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,[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. 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

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 Appeal 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

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. 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. 1 2 3 4 5 6 "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. 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.
  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
  12. "Full Text: The Practice of the "One Country, Two Systems" Policy in the Hong Kong Special Administrative Region". Xinhua News Agency.
  13. "Beijing's 'White Paper' Sets Off a Firestorm in Hong Kong". The New York Times. 11 June 2014. Retrieved 23 June 2014.
  14. 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
  15. "Hong Kong unsettled by case of 5 missing booksellers". The Big Story. Associated Press. 3 January 2016.
  16. "Disappearance of 5 Tied to Publisher Prompts Broader Worries in Hong Kong". The New York Times. 5 January 2016.
  17. 1 2 Ilaria Maria Sala (7 January 2016). "Hong Kong bookshops pull politically sensitive titles after publishers vanish". The Guardian.
  18. "Unanswered questions about the missing booksellers". EJ Insight. 5 January 2016.

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