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– 第八條：「香港原有法律，即普通法、衡平法、條例、附屬立法和習慣法，除同本法相抵觸或經香港特別行政區的立法機關作出修改者外，予以保留。 」
– 第九條：「香港特別行政區的行政機關、立法機關和司法機關，除使用中文外，還可使用英文，英文也是正式語文。 」
– 第一百條：「香港特別行政區成立前在香港政府各部門，包括警察部門任職的公務人員均可留用，其年資予以保留，薪金、津貼、福利待遇和服務條件不低於原來的標準。 」
– 第一百零六條：「香港特別行政區保持財政獨立。 」
– 第一百一十條：「香港特別行政區政府自行制定貨幣金融政策，保障金融企業和金融市場的經營自由，並依法進行管理和監督。 」
– 第一百三十六條：「香港特別行政區政府在原有教育制度的基礎上，自行制定有關教育的發展和改進的政策，包括教育體制和管理、教學語言、經費分配、考試制度、學位制度和承認學歷等政策。 」
– 第一百四十二條：「香港特別行政區政府在保留原有的專業制度的基礎上，自行制定有關評審各種專業的執業資格的辦法。 在香港特別行政區成立前已取得專業和執業資格者，可依據有關規定和專業守則保留原有的資格。 」
– 第一百四十四條：「香港特別行政區政府保持原在香港實行的對教育、醫療衛生、文化、藝術、康樂、體育、社會福利、社會工作等方面的民間團體機構的資助政策。原在香港各資助機構任職的人員均可根據原有制度繼續受聘。 」
– 第一百四十五條：「香港特別行政區政府在原有社會福利制度的基礎上，根據經濟條件和社會需要，自行制定其發展、改進的政策。 」
「為甚麼說五十年不變？這是有根據的，不只是為了安定香港的人心，而是考慮到香港的繁榮和穩定同中國的發展戰略有密切的關聯。中國的發展 戰略需要時間，除了這個世紀的十二年以外，下個世紀還要五十年，那末 五十年怎麼能變呢？現在有一個香港,我們在內地還要造幾個『香港』，就 是說，為了實現我們的發展戰略目標，要更加開放。」
Chen Zuoer, Chairman of the Chinese Association of Hong Kong and Macau Studies, remarked yesterday that Hong Kong had since the handover failed to implement de-colonisation “in accordance with the law” and also allowed de-sinicisation, which caused damage to the “One Country, Two Systems” status quo.
While we leave debates open on the political definition of “de-colonisation” as quoted by Mr Chen, whether “de-colonisation” actually took place in Hong Kong and whether it is a positive development, we note that the Basic Law has not sought to eliminate the pre-existing colonial system in Hong Kong prior to the handover. On the contrary, the whole “One Country, Two Systems” framework under the Basic Law was designed to preserve the system in place during colonial rule. The relevant provisions include:
– Article 8: “The laws previously 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 the legislature of the Hong Kong Special Administrative Region.”
– Article 9: “In addition to the Chinese language, English may also be used as an official language by the executive authorities, legislature and judiciary of the Hong Kong Special Administrative Region.”
– Article 100: “Public servants serving in all Hong Kong government departments, including the police department, before the establishment of the Hong Kong Special Administrative Region, may all remain in employment and retain their seniority with pay, allowances, benefits and conditions of service no less favourable than before.”
– Article 106: “The Hong Kong Special Administrative Region shall have independent finances.”
– Article 110: “The Government of the Hong Kong Special Administrative Region shall, on its own, formulate monetary and financial policies, safeguard the free operation of financial business and financial markets, and regulate and supervise them in accordance with law.”
– Article 136: “On the basis of the previous educational system, the Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on the development and improvement of education, including policies regarding the educational system and its administration, the language of instruction, the allocation of funds, the examination system, the system of academic awards and the recognition of educational qualifications.”
– Article 137: “Educational institutions of all kinds may retain their autonomy and enjoy academic freedom.”
– Article 142: “The Government of the Hong Kong Special Administrative Region shall, on the basis of maintaining the previous systems concerning the professions, formulate provisions on its own for assessing the qualifications for practice in the various professions. Persons with professional qualifications or qualifications for professional practice obtained prior to the establishment of the Hong Kong Special Administrative Region may retain their previous qualifications in accordance with the relevant regulations and codes of practice.”
– Article 144: “The Government of the Hong Kong Special Administrative Region shall maintain the policy previously practised in Hong Kong in respect of subventions for non-governmental organisations in fields such as education, medicine and health, culture, art, recreation, sports, social welfare and social work. Staff members previously serving in subvented organisations in Hong Kong may remain in their employment in accordance with the previous system.”
– Article 145: “On the basis of the previous social welfare system, the Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on the development and improvement of this system in the light of the economic conditions and social needs.”
In addition, the Basic Law does not stipulate the need to change the names of places currently named after figures from the colonial period.
In fact Basic Law does not actually mention “de-colonisation” at all.
As to whether there have been any so-called “de-sinicisation” in Hong Kong, we leave this political topics to others. However, we note that during his meeting with the participants at an international conference on “China and the World in the 90s” on 3 June 1988, Mr Deng Xiaoping expounded, in relation to the pledge that even after the reunification under the Basic Law, Hong Kong would remain unchanged for 50 years, that:
“Why is it said that Hong Kong is to remain unchanged for 50 years? This is a basis for this, not just to calm public sentiments in Hong Kong, but also to take into account the close connection between the prosperity and stability of Hong Kong and the development strategy of China. It takes time for China to develop according to its strategy. Apart from the 12 years in this century, it may also need 50 more years in the next century. How can any changes be allowed in the next 50 years? There is one Hong Kong at this moment and we still need to create a few more “Hong Kong” in the Mainland. In other words, to realise the strategic development goals, China has to become even more open.” (Our translation)
Mr Deng Xiaoping’s remarks are not inevitably relevant to interpreting the Basic Law. However, in past discussions over constitutional issues, those in power liked to quote Deng’s remarks to justify their positions. If we use this as a metric, we can see from the above remarks that in fact even Mr Deng hoped that Hong Kong, which was still a British colony at that time, could assist in pushing for the creation a few more “Hong Kong” in order to promote a more open China. In other words, from the Mr Deng’s point of view, the implementation of “One Country, Two Systems” in Hong Kong is for Hong Kong to play a strategic role, in, to a certain extent, promoting “de-sinicisation” in China.
Thus, instead of making irresponsible remarks in Hong Kong, Chen Zuoer should work hard to familiarise himself with the Basic Law or even with the thoughts of Mr Deng Xiaoping. If Mr Chen’s half-ignorance is widely accepted and implemented in Hong Kong, this city may well suffer like a car that has been wrecked in a crash, with fatal consequences.
Progressive Lawyers Group
21 September 2015
Originally published in Stand News on 21 September 2015