Hong Kong Basic Law
Encyclopedia
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 constitution
al document of the Hong Kong
Special Administrative Region (HKSAR) of the People's Republic of China
(PRC). The leading document in 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 United Kingdom
was handed over to the PRC.
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
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 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 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.
. 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 the 4 June 1989 Tiananmen Square protests of 1989
, after voicing their views supporting the students.
(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.
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:
On one other occasion the NPCSC
interpreted the Basic Law on its own initiative:
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 initiated within Hong Kong, then the amendments 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).
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
al document of the Hong Kong
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
Special Administrative Region (HKSAR) of the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
(PRC). The leading document in the law of Hong Kong, it was adopted on 4 April 1990 by the Seventh National People's Congress
National People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
(NPC) of the People's Republic of China, and went into effect on 1 July 1997 (replacing the Letters Patent
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...
and the Royal Instructions
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
) when this former colony of United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
was handed over to the PRC.
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
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
in the Joint Declaration, in accordance with the "One Country, Two Systems
One country, two systems
"One country, two systems" is an idea originally proposed by Deng Xiaoping, then Paramount Leader of the People's Republic of China , for the reunification of China during the early 1980s...
" principle, socialism
Socialism
Socialism is an economic system characterized by social ownership of the means of production and cooperative management of the economy; or a political philosophy advocating such a system. "Social ownership" may refer to any one of, or a combination of, the following: cooperative enterprises,...
as practised in the PRC would not be extended to Hong Kong. Instead, Hong Kong would continue its previous capitalist
Capitalism
Capitalism is an economic system that became dominant in the Western world following the demise of feudalism. There is no consensus on the precise definition nor on how the term should be used as a historical category...
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
Constitution of the People's Republic of China
The Constitution of the People's Republic of China is the highest law within the People's Republic of China. The current version was adopted by the 5th National People's Congress on December 4, 1982 with further revisions in 1988, 1993, 1999, and 2004. Three previous state constitutions—those of...
, and with some legal scholars arguing that the Basic Law derives its authority directly from the Sino-British Joint Declaration
Sino-British Joint Declaration
The Sino-British Joint Declaration, formally known as the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, was signed by the Prime Ministers, Zhao Ziyang and Margaret...
. The argument is relevant in that it affects 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.
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 PengfeiJi Pengfei
Ji Pengfei was a politician in the People's Republic of China.-Biography:Ji Pengfei was born in Linyi, Yuncheng, Shanxi in 1910...
. 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
National People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
, 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
Martin Lee
Martin Lee , QC, SC, JP, was the founding chairman of the Democratic Party in Hong Kong. He was a directly-elected Member of the Legislative Council of Hong Kong for the Hong Kong Island geographical constituency...
and Szeto Wah
Szeto Wah
Szeto Wah was a politician of the pan-democracy camp of Hong Kong. He was formerly the chairman of The Hong Kong Alliance in Support of Patriotic Democratic Movements in China and a member of the Legislative Council from 1985 to 1997 and 1998 to 2004.Although the Hong Kong government prior to as...
, were ousted by Beijing following the 4 June 1989 Tiananmen Square protests of 1989
Tiananmen Square protests of 1989
The Tiananmen Square protests of 1989, also known as the June Fourth Incident in Chinese , were a series of demonstrations in and near Tiananmen Square in Beijing in the People's Republic of China beginning on 15 April 1989...
, after voicing their views supporting the students.
General principles
- The Hong Kong Special Administrative RegionHong KongHong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
is part of the People's Republic of ChinaPeople's Republic of ChinaChina , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
.
- The region has a high degree of autonomy and enjoys executive, legislative and independent judicial power, including that of final adjudication. An implication is that the former judicial recourse by appealing to the United Kingdom's Judicial Committee of the Privy CouncilJudicial Committee of the Privy CouncilThe Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
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 Hong Kong Special Administrative Region shall be composed of permanent residents of Hong Kong in accordance with the relevant provisions of the Basic Law.
- The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years.
- The laws previously in force in Hong Kong, that is, the common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, rules of equity, ordinances, subordinate legislationLegislationLegislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
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 Hong Kong Special Administrative Region.
- The Hong Kong Special Administrative Region shall protect the right of ownership of private propertyPrivate propertyPrivate property is the right of persons and firms to obtain, own, control, employ, dispose of, and bequeath land, capital, and other forms of property. Private property is distinguishable from public property, which refers to assets owned by a state, community or government rather than by...
in accordance with law.
Relationship with central government
- The laws in force in Hong Kong shall be the Basic Law, the laws previously in force in Hong Kong as provided by Article 8, and the laws enacted by the legislature. National laws shall not be applied in Hong Kong unless listed in Annex III and applied locally by promulgation or legislation.
Fundamental rights and duties
- 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 electionElectionAn election is a formal decision-making process by which a population chooses an individual to hold public office. Elections have been the usual mechanism by which modern representative democracy operates since the 17th century. Elections may fill offices in the legislature, sometimes in the...
in accordance with law.
- Hong Kong residents shall have, among other things, freedom of speechFreedom of speechFreedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
, freedom of the pressFreedom of the pressFreedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...
and of publication; freedom of associationFreedom of associationFreedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
, freedom of assemblyFreedom of assemblyFreedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, 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 unionTrade unionA trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
s, and to strikeStrike actionStrike action, also called labour strike, on strike, greve , or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became...
.
- The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrestArrestAn arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
, detentionDetention (imprisonment)Detention is the process when a state, government or citizen lawfully holds a person by removing their freedom of liberty at that time. This can be due to criminal charges being raised against the individual as part of a prosecution or to protect a person or property...
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.
- The provisions of the International Covenant on Civil and Political RightsInternational Covenant on Civil and Political RightsThe International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
, the International Covenant on Economic, Social and Cultural RightsInternational Covenant on Economic, Social and Cultural RightsThe International Covenant on Economic, Social and Cultural Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976...
, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR.
Political structure
- The selection of Chief Executive is to be ultimately by means of universal suffrageUniversal suffrageUniversal suffrage consists of the extension of the right to vote to adult citizens as a whole, though it may also mean extending said right to minors and non-citizens...
.
External affairs
- Although the PRC is responsible for Hong Kong's foreign affairs and defence, Hong Kong is permitted to participate in international organisations or conferences in certain fields limited to states and directly affecting the HKSAR. It may attend in such other capacity as may be permitted by the PRC government and the international organisation or conference concerned, and may express their views, using the name "Hong Kong, China". The HKSAR may also, using the name "Hong Kong, China", participate in international organisations and conferences not limited to states. (Articles 13-14, 150-157)
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 CongressStanding Committee of the National People's Congress
The Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
(NPCSC) which is a power also derived from the Constitution of the People's Republic of China
Constitution of the People's Republic of China
The Constitution of the People's Republic of China is the highest law within the People's Republic of China. The current version was adopted by the 5th National People's Congress on December 4, 1982 with further revisions in 1988, 1993, 1999, and 2004. Three previous state constitutions—those of...
.
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
Central People's Government
The Central People's Government is the central government of the People's Republic of China in Beijing. According to the 1982 Constitution, "Central People's Government" is synonymous with the State Council.-History:...
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.
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
Standing Committee of the National People's Congress
The Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
to interpret the Basic Law twice:
- 1999: The Right of Abode issue
- 2005: The term of the new Chief Executive after the original Chief Executive resigned.
On one other occasion the NPCSC
Standing Committee of the National People's Congress
The Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
interpreted the Basic Law on its own initiative:
- 2004: Universal suffrageUniversal suffrageUniversal suffrage consists of the extension of the right to vote to adult citizens as a whole, though it may also mean extending said right to minors and non-citizens...
in 2007 and 2008
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
Standing Committee of the National People's Congress
The Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
, the State Council of the People's Republic of China
State Council of the People's Republic of China
The State Council of the People's Republic of China , which is largely synonymous with the Central People's Government after 1954, is the chief administrative authority of the People's Republic of China. It is chaired by the Premier and includes the heads of each governmental department and agency...
and the Hong Kong Special Administrative Region. The proposed amendments require the approval of the Chief Executive of Hong Kong
Chief Executive of Hong Kong
The Chief Executive of Hong Kong is the President of the Executive Council of Hong Kong and head of the Government of the Hong Kong Special Administrative Region. The position was created to replace the Governor of Hong Kong, who was the head of the Hong Kong government during British rule...
, two thirds of the Legislative Council of Hong Kong
Legislative Council of Hong Kong
The Legislative Council is the unicameral legislature of Hong Kong.-History:The Legislative Council of Hong Kong was set up in 1843 as a colonial legislature under British rule...
members and two thirds of the deputies representing Hong Kong in the National People's Congress
National People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
. If initiated within Hong Kong, then the amendments can only be proposed by either the Legislative Council of Hong Kong
Legislative Council of Hong Kong
The Legislative Council is the unicameral legislature of Hong Kong.-History:The Legislative Council of Hong Kong was set up in 1843 as a colonial legislature under British rule...
or the Chief Executive of Hong Kong
Chief Executive of Hong Kong
The Chief Executive of Hong Kong is the President of the Executive Council of Hong Kong and head of the Government of the Hong Kong Special Administrative Region. The position was created to replace the Governor of Hong Kong, who was the head of the Hong Kong government during British rule...
. 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
Legislative Council of Hong Kong
The Legislative Council is the unicameral legislature of Hong Kong.-History:The Legislative Council of Hong Kong was set up in 1843 as a colonial legislature under British rule...
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:- The Right of Abode issueRight of abode issue, Hong KongThe right of abode in Hong Kong is the right to legally reside in Hong Kong and was governed by rules both under British and Chinese administration. As the People's Republic of China stood to resume sovereignty over Hong Kong in 1997, the nationality of Hong Kongers as well as their right of abode...
in 1999, during which the Government sought an interpretation of Articles 22 and 24 from the Standing Committee of the National People's CongressStanding Committee of the National People's CongressThe Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
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 independenceJudicial independenceJudicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
in Hong Kong.
- Article 23 of the Basic LawHong Kong Basic Law Article 23Hong Kong Basic Law Article 23 is the basis of a security law proposed by the Government of Hong Kong. It states:On 24 September 2002 the government released its proposals for the anti-subversion law. It is the cause of considerable controversy and division in Hong Kong, which operates as a...
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 (July 1 marchesHong Kong July 1 marchesThe Hong Kong 1 July march is an annual protest rally originally led by the Civil Human Rights Front since the 1997 handover on the HKSAR establishment day. However, it was not until 2003 that the march drew large public attention by opposing the legislation of Basic Law Article 23...
), where it is estimated that over five hundred thousand people took to the streets, on 1 July 2003. After the demonstrations, the government indefinitely shelved its drafted law.
- The possibility of universal suffrage in 2007 and 2008. universal suffrageUniversal suffrageUniversal suffrage consists of the extension of the right to vote to adult citizens as a whole, though it may also mean extending said right to minors and non-citizens...
for the election of the Chief Executive in 2007, and for all seats of the Legislative Council in 2008 is not ruled out under Articles 45Hong Kong Basic Law Article 45Hong Kong Basic Law Article 45 is a controversial article in the Basic Law of Hong Kong. It states that the Chief executive should be chosen by universal suffrage as an eventual goal. Its speedy implementation is advocated by the Basic Law Article 45 Concern Group.-Contents of Article 45:Article...
and 68 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 45Hong Kong Basic Law Article 45Hong Kong Basic Law Article 45 is a controversial article in the Basic Law of Hong Kong. It states that the Chief executive should be chosen by universal suffrage as an eventual goal. Its speedy implementation is advocated by the Basic Law Article 45 Concern Group.-Contents of Article 45:Article...
and 68. The controversy was finally settled through interpretation of Basic Law by the Standing Committee of the National People's CongressStanding Committee of the National People's CongressThe Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
, which ruled out the possibility of universal suffrage in 2007 and 2008 on 26 April 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, in 2007/08 a record surplus). The government imposed a pay-cut on the Civil Service during the economic downturn, and then sharply increased salaries during the recovery.
- 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 on 10 March 2005. The legal community and the pro-democracy camp claim that the term of the new Chief Executive should follow Article 46Hong Kong Basic Law Article 46Article 46 of the Hong Kong Basic Law states:This became a part of a legal dispute in 2005 after the resignation of Hong Kong Chief Executive Tung Chee-Hwa. The question arose as to whether his successor would serve a full five-year term or would only serve the remainder of Tung's term...
, 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 CongressStanding Committee of the National People's CongressThe Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
on 6 April 2005, and the standing committee ruled on 27 April 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 out the remainder of his predecessor's term. Hong Kong residents who favour autonomy view the "interpretation" from the Standing Committee as an intrusion into the Hong Kong legal system by the central government in violation of the spirit of the One Country, Two Systems policy, compromising the rule of law.
- No formal terms for extraditionExtraditionExtradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
of criminals exist. Article 95 provides for mutual judicial assistance between Hong Kong and the PRC; however, serious stumbling blocks, such as capital punishmentCapital punishmentCapital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
stand in the way of a formal understanding of extraditionExtraditionExtradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
. 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, particularly 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 arrested 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 ChenAlbert ChenAlbert Hung Yee Chen is a legal scholar in Hong Kong. He was the immediate past Dean of the Faculty of Law of the University of Hong Kong, where he currently serves as the Chan Professor in Constitutional Law.-History:...
, a professor, and Gladys LiGladys LiGladys Veronica Li, Senior Counsel at the Hong Kong Bar with a busy constitutional law and human rights practice, is a founding member of the Hong Kong Civic Party. She began to take an interest in public affairs on her return to Hong Kong in 1982, after 10 years' practice as a barrister in England...
, chairman of justice of the Hong Kong section of the International Commission of JuristsInternational Commission of JuristsThe International Commission of Jurists is an international human rights non-governmental organization. The Commission itself is a standing group of 60 eminent jurists , including members of the senior judiciary in Australia, Canada, and South Africa and the former UN High Commissioner for Human...
, feel that this situation has serious ramifications for judicial independenceJudicial independenceJudicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
in Hong Kong.
See also
- Macau Basic LawMacau Basic LawThe Basic Law of the Macau Special Administrative Region of the People's Republic of China is the constitution of Macau, replacing the Estatuto Orgânico de Macau, which was effective since 1976, on 20 December 1999....
- Judicial reviewJudicial reviewJudicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
- Hong Kong Royal InstructionsHong Kong Royal InstructionsThe Hong Kong Royal Instructions was one of the two principal constitutional instruments of Hong Kong during the period of its administration as a colony under British administration. ....
and Hong Kong Letters PatentHong Kong Letters PatentThe Hong Kong Letters Patent was one of the two principal constitutional instruments of Hong Kong during the period of its administration as a colony under British administration... - Hong Kong Basic Law Article 69Hong Kong Basic Law Article 69Article 69 of Hong Kong Basic Law sets the term of the Legislative Council of Hong Kong .The article states the term of office of the Legislative Council of the Hong Kong Special Administrative Region shall be four years, except the first term which shall be two years.This defines the reason for...
External links
- Hong Kong Government website on the Basic Law
- Full text of the Basic Law
- Basic Law Drafting History Online -University of Hong Kong Libraries, Digital Initiatives