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The constitutional clauses mirror the basic claims of the One Country,Two Systems Principle. As Mr. Peng Zhen, the later chairman of the Congresssaid in his Report on the Constitutional Draft that if the principles ofsovereignty, unification, and state integrity are to be maintained, Taiwancould remain unchanged in almost every areas of the social structure; and thatthat is "the principal ground for us to deal with matters ofsimilarity". "Matters of similarity" are, of course, indicatingthe instances of Hong Kong and Macao.
B. The Basic Law for Hong Kong is in the highest rank of Chinese legislationsunder the Constitution.
Under the Constitution, only the NPC and its Standing Committee shallexercise the legislative power of the state. What the NPC set down are called“the basic statutes”, which would concern concerning criminal offences, civilaffairs, the state organs and other matters, while what the laws issued by theCommittee are called “the statutes”, which are beyond the basic matters. Thismeans, in strict sense, that the basic statutes are higher in force than theCommittee statutes. Nevertheless, the Standing Committee shall have therevising power and supplements providing power, though the Congress itselfsurely owns these powers, to the basic statutes when the Congress is not insession. But the amendments or the partial supplements to the basic statutes bythe Committee should not contravene the basic principles of those Congressstatutes.
Deducing from its enacting process, the Basic Law for Hong Kong is commonly known as belonging to the category of basicstatutes.But this Law is a little bit higher in rank than other basic statutes passed bythe Congress itself. Such a position gains from the Basic Law. In Article159(1) of the Basic Law of Hong Kong provides:
The power ofamendment of this Law shall be vested in the National People’s Congress.
That means that the revision power of this basic statute is grasped inhands of the Congress itself. And the Congress made here in this Law incapacityof its Standing Committee to revise the Law. Such an arrangement gives theBasic Law a superb status over other basic statutes, which means its revisionshould be treated with much care than those latter. It is significant that therights of Hong Kong will get through thisarrangement more prudent warranty.
C. Sino-British JointDeclaration ensures the One Country, Two Systems Principle to be written downin the process of drawing up of the Basic Law.
Although the Constitution has confirmed the position of Hong Kong as a special administrative region and ensuredin principle the divergent social and political systems from Mainland, it isimpossible to numerate details of the institutions. Another legal document –the Joint Declaration signed by the Chinese and British Governments on December1984 – plays thus the role of concluding the details. The Joint Declarationcontains mainly such terms as: ⑴the Chinese Government will on July 1 1997 resume the exercise thesovereignty, while the British reign ends; ⑵the basic policies of theChinese Government are to found the special administrative region therein; ⑶the Center willgrant the Region a high degree of autonomy with legislative, executive andindependent judiciary powers; ⑷the Center ensures the governing by natives; ⑸the Region willcertify the human rights and customary rights thereof; ⑹the Center willleave the financial affairs independent; ⑺the Center lets thegovernment thereof guarantee the public security; ⑻the Regionprotects the benefits of the United Kingdom as well as other countries thereinnot to be touched, etc.
All contents of the Joint Declaration were written down into the BasicLaw composing as the framework of it. And these contents constitute theresponsibilities of the Chinese Government, for the Joint Declaration itself isa kind of treaty between Chinaand Great Britainwithin the meaning of international law. To render his responsibility forensuring the legal rights of Hong Kong, theBasic Law was framed.
D. Article 8 of Hong Kong Basic Law prescribes:
The lawspreviously in force in Hong Kong, that is, the common law, rules of equity,ordinances, subordinate legislation and customary law shall be maintained,except for any that contravene this Law, and subject to any amendment by thelegislature of the Hong Kong Special Administrative Region.
This presumes that, in the Basic Law itself, there are a lot ofprescriptions get their origins from the English law, and the traditionalChinese law and customs. These clauses focus onthe social, economical, and judicial systems. The judiciary system as a whole,judicial principles and procedures will be remained unchanged on their originalprinciples of common law traditions with tidy necessary adjustments. AllowingHong Kong under the rule of the common law traditions is important formaintaining the so-called "previous systems" unchanged, because Hong Kong has been long a society of law. However, thereare some laws previously in force in Hong Konghas naturally lost their legal basis after the regression, because of theircontravention to the Basic Law. For example, the Letters Patent as afundamental legal document for the British governing power of Hong Kong as wellas the Royal Instructions as an organic law during the colonist period wasexcluded from the list of the laws previously in force in Hong Kong.
There is a problem needs to be clarified more. The question is: Shouldthe Chinese Constitution be carried out in Hong Kong,as mentioned above, when it has its own "little constitution"? Or isthe Chinese Constitution the highest law in Hong Kong?The answer is positive yeah. First, the Hong Kong Special Administrative Regionfounded through the Basic Law is the result of the Principle of One Country,Two Systems. One Country is the aboveground precondition for the existence ofthe Region. If the One Country norm were denied, there would have been no the Regionat all. And if the One Country proposition be recognized, the Constitution ofthe land must be obeyed by any of its parts. Secondly, the Basic Law wasformulated in accordance with the Constitution of China. This means that theBasic Law will lose its ground of existence, if the highest norm becomes nullfor Hong Kong. As a common dogma says that anysubordinate norm cannot get its legal effectiveness just by its ownself-prescription. Thirdly, there is an undivided relevance between theConstitution and the Basic Law. If the relative clauses of the latter should becorrectly understood, it must find out the core meanings in the former. For example,what is meant the "Central People''s Government" in many articles ofthe Basic Law or the" socialist system and policies" in Article 5 thereof?The original meanings of them ought to be explained according to theConstitution.
Nevertheless, the Constitution of China cannot be absolutely and fullyimplemented in Hong Kong. The key line ofimplementation of the Constitution to Hong Kongis if a given matter relates to the question of sovereignty or not. The question of theimplementation force of the Constitution might be nicely answered by looking atthe attitude of the courts of Hong Kong to theConstitution. We will find out that the Constitution may not be used as a rulerto justify the behaviors of the residents and the government organs in Hong Kong. Thus it is a very interesting phenomenon ofthe rule of law: the Constitution is the highest law also in Hong Kong, but has no legal effect in courts.
#a#3. Rights of #/a#Hong KongIn the relationship between Hong Kong and the Center, Hong Kong is naturally subject to the Center. But beneath the Centralpowers, Hong Kong has its own rights providedby the Basic Law.
Before we consider the rights of Hong Kong,we should know what the Central Government has, that is, what it could wield tothe Region. They might be expressed in five respects: ⑴the basicinstitutions should be decided by the Center through the Basic Law, even if thestructure and the principles of the institutions remain unchanged; ⑵Hong Kong cannotbe endowed the full powers as a sovereign state; and in the scopes of power ofHong Kong some parts of them, which are of the nature of sovereignty, should beperformed by the Center, such as the powers of foreign and defensive affairs; ⑶the finalinterpretation power of the Basic Law belongs to the Standing Committee of theNPC and the amendment power of the Law leaves to the NPC itself; ⑷the Center hasright to postulate that Hong Kong will not be a basis for the force of practicableanti-communism; ⑸the Center can keep the supervision power in hand. By the way, theCenter is responsible for the defense of the Region and can station themilitary forces into Hong Kong. The existenceof the garrison is a symbol of national sovereignty.
According to the Joint Declaration and the Detailed Explanation to itby the Chinese Government, Hong Kong will haverights as below:
⑴the socialist system and policies will not be practiced in Hong Kong, whichmeans that the legislature will be legitimated by a universal election, theexecutive takes responsibility to the legislature, the governmental departmentsand the courts could use, apart from Chinese, English, and the flag and emblemof the Region could be hung next to those of the Land; ⑵the legislaturecould in accordance with the legal processes enact laws for Hong Kong andreport them to the Standing Committee of the NPC for the record; ⑶except the finaladjudication, the judicial system and principles, such as independence ofjustice, will be maintained with the power of appointment and removal ofjudges; ⑷the system and the regulations of the civil services will keep theoriginal appearance, except for the positions of highest rank; ⑸the financialincomes needn''t to turn over to the Center, though the budgets and finalaccounts should report to the Center for the record; ⑹the free tradepolicy will be continued; ⑺the currency and banking system should be preserved, that is, the HongKong dollar will be continued to keep its independence; ⑻the shippingmanagement system remains its origins, only do the foreign warships should beinto harbors of Hong Kong under the approvals of the Center by way ofexception; ⑼Hong Kong will be furthermore as an aviation center; ⑽the educationalsystem will be maintained; ⑾the name of "Hong Kong, China" should be used when Hong Kongdevelops various relations with the other parts of the world, while Hong Konghas a semi-independent position on matters of foreign affairs relating to it; ⑿the stationedarmy, who was dispatched by the Central Government, will not interfere in thelocal affairs, and the expenditure for the garrison will be borne by theCentral Government at the same time; ⒀the applicable parts of twointernational pacts – the International Covenant on Civil and Political Rights,the International Covenant on Economic, Social and Cultural Rights – shallremain in force and will be implemented through the laws of the Region; ⒁Hong KongGovernment has the authority to decide the problems as passports and visas.
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