|Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China|
The cover of the Basic Law, published by the Constitutional and Mainland Affairs Bureau
|Subordinate to||Constitution of the People's Republic of China|
|Created||4 April 1990|
|Date effective||1 July 1997|
|Author(s)||Hong Kong Basic Law Drafting Committee|
|Signatories||Yang Shangkun, President of the People's Republic of China|
|Hong Kong Basic Law|
|Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China|
Politics and government|
of Hong Kong
|Related topics Hong Kong portal|
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China is a national law of China that serves as the de facto constitution of the Hong Kong Special Administrative Region. 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.
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 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 argue 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. Twelve of the 23 members from Hong Kong were connected to the city's business and industrial sectors.:11 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 amid the military crackdown of the Tiananmen Square protests of 1989. In September 1989, Lee announced that he would return to the BLDC as many in Hong Kong had urged him to do so. Nevertheless, Beijing expelled Lee and Szeto from the BLDC in October 1989 as "subversives". 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
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
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.:352-353Johannes 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)