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Therefore, although there were conflicts between Chinese leaders before1970''s, the leading idea of the time was to solve the questions by peace way.After the fulfillment of transformation of the capitalist industry and commerceinto socialist forms in Mainland China,Prime Minister made a speech about the relations between Mainland and Hong Kong. He promised that on the basis of diversity China would render the policies to Hong Kongdistinct to those in Mainland, and that it could not transfer the capitalistmodel of Hong Kong into the socialist one, for that didn''t profit both China and Hong Kong.In the light of economic development, Chinawould continue the cooperation with the capitalists and businessmen of Hong Kong no matter would it be in the future.
Hence, before the open-door policy was raised, among the Chineseleaders the peaceful choice was the first approach for the reunification. Butthere was a hindrance on the road: according to the traditional Leninistpolitics, either the socialism defeats the capitalist or vice versa. The dilemma was theninsolvable in the theory. To the first generation of leaders, it was a task farfrom their reach. They didn''t and might be incapable design a model for thecoming back of Hong Kong and Macaoto Mainland. What they have done was to set up the principle that the twoterritories must go back under the sovereignty of China by ways of negotiation. Inthis situation it was deemed that there was no best ways to overcome thedifficulties on the road of reintegration of the country except but waiting.
#a#3. The Raise of the "OneCountry, Two Systems" Principle#/a#The dawn came with the crackdown of Gang of Four and the beginning ofthe new enlightenment that was started by Mr. Deng after the Third Session ofthe Eleventh Party Congress held on December 1978. The Third Sessionascertained the principle of seeking the truth through practice regardless ofwhat theoretical dogmas says. This opened the vast space to let people considerthose theories, which had governed the brains of the people for many years,wrong or right, nihilist or practicable.
The principle of truth-in-practice is not only the new tool of thepeople to build up a good life, but also the key for the Chinese leaders tosolve and formulate again the inner and foreign policies. The first spark ofthe One Country, Two Systems Policy expressed in the National Day Address byMarshall Ye Jianying in 1981, in which hementioned the possibility of the reintegration by a peaceful way that Taiwan will be a special administrative regionof the state, enjoying the high degree of autonomy, allowed to keep its armies,and to remain its social structures and the model of life unchanged. Although there was noexplicit expression of one country, two systems in it, the Address contained inreality the content of the Policy. This was the foundation of the peacefulreunification of the nation.
On September1982, when Mr. Deng met Mrs. Margaret Thatcher, the British premier, he posed formally the One Country, Two Systems Principle out at the first time aiming for solving the problemof Hong Kong. He told Mrs. Thatcher thatthe question of sovereignty could not be negotiated and the regression of HongKong to Chinawas only the question of time. He denied further the proposal to let British continuallyadministrate Hong Kong under the Chinesesovereignty. But he agreed that Hong Kongwould keep its systems not to be changed and the interests of British would beensured.
On such a basis of political stand, the Chinese Constitutionpromulgated on December 1982 was added at its draft the Article 31, whichreads,
The state mayestablish special administrative regions when necessary. The systems to beinstituted in special administrative regions shall be prescribed by law enactedby the National People''s Congress (NPC) in the light of thespecific conditions.
This provision gave Hong Kong aconstitutional insurance not to become a mimic of the local governments in the Mainland.
On May 5, 1984, the State Council raised formally the "OneCountry, Two Systems" principle in its Government Annual Message deliveredto the National People''s Congress. The NPC passed the Message and this made thePrinciple a basic state policy to Hong Kongwith legal force. Furthermore, the One Country, Two Systems Principle hasbecome to a cornerstone of Chinese Government to deal with the whole problem ofreunification.
#a#II. HONG KONG BASIC LAW AND ITS POSITION WITHIN THE LEGAL SYSTEM OF #/a#CHINA#a#1. The Birth of the #/a#Hong Kong Basic LawIn the light of One Country, Two Systems Principle, it was achieved an agreementbetween China and Great Britain in solving the historical questionof Hong Kong. To handle with the problemsduring the interim both governments signed the Joint Declaration on theQuestion of Hong Kong on December 19 1984. According to this Joint Declaration,the Chinese Government will resume the sovereign rights over Hong Kong from July 1 1997. On April 10 1985, according to a specificresolution of the Congress, a committee to draft the basic law for Hong Kong was formed. On April 4 1990, the Hong KongBasic Law adopted by the Seventh National People''s Congress at its thirdsession.
The Basic Law has a preamble, nine chapters, one hundred and sixtyarticles, plus three attached annexes with legal force. Either from itsstructure or its content, the Basic Law is essentially the fundamental legaldocument for Hong Kong. Therefore, it is calledto be the "little constitution" or the "constitution for Hong Kong".
It is not, nevertheless, the true constitution for Hong Kong, onaccount of its drafting and issuing authorities, not as a result of sovereignconduct by the residents. It is not of the prerequisite in formal meaning of aconstitution. It was given to Hong Kong by theCentral Government of China. The Basic Law has with the Constitution arelationship of offspring and ancestor. It cannot at thebeginning of its birth conflict with the Constitution and must follow theguidance of the Constitution. In fact, the source of the force of the Basic Lawcame from the authority of the Center by powers granting. This relationship isdifferent from what the relations of constitutions within a federal countryhave, within which the state constitutions are not descended from the federalconstitution though they cannot either conflict with the federal constitution.Furthermore, even it is wrong to think that the Basic Law is the highest legaldocument in Hong Kong. The Constitution of theland possesses that place instead, either in name or in legal structure. If notso, the sovereignty of Chinaover the Region would be in doubt. In another words, the specialty of theRegion is in areas of concrete design of the systems, not in the question ofone country. There is no beneath the central government such a local governmentwhere the constitution of the land could not cover for.
On the basis of the Basic Law, there was a new relationship born – notthe relationship under the Constitution of the state by the people as a whole,but under a statute by the Center. And this statute renders duties not only to Hong Kong, but also to the Central Government. This kindof result comes from the reality that the Basic Law is a mutual compromisebetween two sides of Chinaand Britain who representedthe interests of Hong Kong at the negotiations. And the Chinese sideconsidered thoroughly the benefits of the Chinese living in Hong Kong. This compromise doesn''t mean the equal position of a localauthority and the central authority, but the mutual interests, which guided thepeaceful reunification. The relationship of Hong Kongand the Center was formed under the international interference and exposed toeyes of the countries in the world. By the way, because Hong Kong is aninternational city and is still one of the main open mouth of China to theworld, its rights ought to be respected for the purpose of keeping its prosperity.
#a#2. The Legislative Resources ofthe Basic Law#/a#A. The Basic Law was madeunder the sovereignty of China.This means that the Basic Law must get its legality from the Constitution ofthe land.
As mentioned above, Article 31 of the Constitution provides that thestate shall establish the special administrative regions when necessary. Thisimplies four things at least in the case of Hong Kong: one is that the specialadministrative region could be erected, which shall be special depending onthose necessary demands, and which are different to the existent nationalautonomous as well as special economic areas. The special demands for a specialstatute are those different or even contrary ones for and to the other parts ofMainland China.Thus, the second thing is that the special social and political systems couldbe allowed in Hong Kong, which are permittedcontrary to the systems in the Mainland. Although the differences look like agreat chasm in essentials, the Hong Kong partis after all in size pretty small compared with the Mainland. The third is thatthe special systems must be fixed by national law, that is, in the scope oftoleration of the Central Government. What the law says is what the rights tobe. Fourthly, the right to make such a law shall be endowed to the NationalPeople''s Congress. This is the final requirement for the legitimacy of theBasic Law for Hong Kong.
Apart from Article 31, Article 62 enumerates the powers of theCongress, granting the legislature the power to "decide on theestablishment of special administrative regions and the systems to be institutedthere". This establishment power is in nature a supreme legislative power,which is named in Chinese Constitution as “the highest state power” (Article57). Under the Constitution, the Congress is the highest organ of state powerthat is included the power of legislation, establishment, nomination, decision,etc. The significance of separating the establishment power from thelegislative power would be in order to emphasize the importance and specialtyof the problems of reunification. The intent of the constitutional framerindicated that the systems in Hong Kong and Macao were surely different from those inthe Mainland, which shall be guaranteed by the divide of legislative power intocatalogues.
In fact, there are two establishment power items of the Congress grantedby the Constitution. While Item 12 of Article 62 grants the Congress the powerto approve the establishment of provinces, autonomous regions, andmunicipalities directly under the Central Government, Item 13 grants it anotherpower to decide on the establishment of special administrative regions asmentioned above. Therefore, the establishment of special administrative regionsshould be deemed as different from the establishment of inner local governmentsin Mainland. It implies that the different political systems in those areasoutside Mainland will be allowed by the Constitution.
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