Zhang Dejiang, Chairman of the National People’s Congress and Rao Geping, Chinese representative member of the Basic Law Committee have recently and respectively made important speeches in relation to the 20th anniversary of the implementation of the Basic Law. The Progressive Lawyers Group (“PLG”) is deeply disturbed by some of the contents of these speeches, believing that they are in contradiction to the “One Country, Two Systems” framework stipulated by the Basic Law. The following is an outline of the major relevant points:
I. The Basic Law stipulates “Hong Kong people administering Hong Kong
- As described in the preamble of the Basic Law, the PRC Government and the British Government signed the Joint Declaration affirming that upon resumption of the exercise of sovereignty over Hong Kong, the PRC Government would establish a Hong Kong Special Administrative Region (“HKSAR”) under the PRC’s fundamental policy of “One Country, Two Systems”. Annex 1 to the Sino-British Joint Declaration sets out specifically the fundamental policies of the PRC Government in respect of Hong Kong, which include, Hong Kong enjoys “a high degree of autonomy, except for foreign and defence affairs which are the responsibilities of the Central People’s Government”, Hong Kong being vested “with executive, legislative and independent judicial power, including that of final adjudication”, and that the Government and legislature of Hong Kong “shall be composed of local inhabitants”.
- The National People’s Congress therefore regulates the system to be implemented in Hong Kong through the Basic Law, which expounds the above fundamental policy of “Hong Kong people administering Hong Kong”. The individual provisions of the Basic Law set out in more detail how such fundamental policy shall be applied. This includes the establishment of Hong Kong’s executive, legislative and judicial power, that the executive and legislative authorities shall be composed of the people of Hong Kong, and that the Chief Executive of Hong Kong shall be a Hong Kong person and elected by Hong Kong people, only upon which shall be appointed by the Central Government, etc.
- Zhang also confirmed in his speech that the PRC’s fundamental policies of “Hong Kong people administering Hong Kong” and “high degree of autonomy” remain unchanged.
- The most important provision establishing “Hong Kong people administering Hong Kong” in the Basic Law is Article 22, i.e. “No department of the Central People’s Government and no province, autonomous region, or municipality directly under the Central Government may interfere in the affairs which the HKSAR administers on its own in accordance with this Law.” The Chinese Constitution stipulates that the National People’s Congress is vested with all powers of the State. Even the executive authorities are established by, responsible to and subject to the supervision of the National People’s Congress. Given that the Basic law passed by the National People’s Congress is not only the mini constitution of Hong Kong, but also national law, even the executive authorities of the Central Government must comply with the Basic Law and “shall not interfere in the affairs which the HKSAR administers on its own in accordance with this Law”.
- In Zhang and Rao’s speeches, they say regulations have to be stipulated and particularised, in order to implement the principle where “the Central Government orders and directs the Chief Executive”. Unfortunately, both of them did not state the ambit of the relevant “orders” or “directions”.
- If the relevant “orders” or “directions” concern “foreign and defence affairs”, then they fall within the responsibility of the Central Government. Articles 13 and 14 of the Basic Law state that they are to be handled by the Ministry of Foreign Affairs’ office in Hong Kong and military forces stationed by the Central Government in Hong Kong.
- In contrast, if such orders and directions do not fall within the ambit of “foreign and defence affairs”, then they are local affairs. According to Article 16 of the Basic Law, the HKSAR shall “on its own” conduct the administrative affairs of the region. Therefore, PLG cannot see any basis how any department of the Central Government could set regulations on making orders or directions to the Chief Executive without violating Article 22 of the Basic Law.
II. The Basic Law grants the HKSAR with legislative power
- Besides, Zhang also mentioned that particularised regulations should be stipulated in order to implement “the power to review the reported laws of the HKSAR”.
- Article 17 of the Basic Law states that the HKSAR shall be vested with legislative power. Laws enacted by the legislature of Hong Kong must be reported to the Standing Committee of the National People’s Congress (“NPCSC”) for the record. The reporting for record shall not affect the entry into force of such laws. If the NPCSC, after consulting the Committee for the Basic Law, considers that any law enacted by the legislature of Hong Kong is not in conformity with the provisions of the Basic Law regarding affairs within the responsibility of the Central Government or regarding the relationship between the Central Government and the HKSAR, the NPCSC may return the law in question but shall not amend it. Any law returned by the NPCSC shall immediately be invalidated. This invalidation shall not have retroactive effect, unless otherwise provided for in the laws of the HKSAR.
- It can be seen that the NPCSC only has the power to return the laws of Hong Kong when the same violates the relevant provisions of the Basic Law on the affairs governed by the Central Government or provisions on the relationship between the Central Government and the HKSAR. If the relevant laws do not touch upon the affairs governed by the Central Government, or the relationship between the Central Government and the HKSAR, then the NPCSC does not have the authority or power to return the relevant laws.
- Again unfortunately, Zhang did not mention the ambit of “the power to review the reported laws of the HKSAR”. If “the power to review the reported laws of the HKSAR” covers matters other than the affairs governed by the Central Government or the relationship between the Central Government and the HKSAR, there will be a clear breach of Article 17 of the Basic Law.
III. Laws are not political tools
- In a society which celebrates the “rule of law”, the law does not only regulate the social system, but also restricts the powers of the government and protects the rights of its people.
- As explicitly stated in the preamble of the Basic Law, the Basic Law shall be “prescribing the systems to be practised in the Hong Kong Special Administrative Region”. Chapter IV has also detailed and regulated the checks and balance of the powers among the executive, legislature and judiciary of the HKSAR. Article 4 and Chapter III of the Basic Law list out all the rights enjoyed by Hong Kong people.
- The “rule of law” does not equal to “rule by law”. On the contrary, one of the important indications of “rule of law” is whether the government is also bound by the law. Article 35 of the Basic Law safeguards Hong Kong peoples’ rights to commence legal proceedings in the courts against the power of the executive authorities, which means the people may initiate judicial review against the decisions or policies of the executive authorities. This is a significant part in the chain of manifesting the “rule of law”.
- In their speeches, Zhang and Rao suggested using “strong legal arms” to resolve all sorts of issues, and “institutionalising and normalising” the interpretation of the Basic Law to become a “sharp legal weapon”. Such thought is essentially an example of “rule by law”, turning the law into a tool of settling political needs. This is not the spirit of the “rule of law” by which Hong Kong has long been dependent on to achieve success.
- The spirit of the “rule of law” is one of the most important cornerstones for Hong Kong’s success all this time. Should the “rule of law” be affected by politics, the prosperity of Hong Kong would definitely be swayed.
- PLG believes that the speeches of Zhang and Rao cast doubts on whether the fundamental policies of the PRC, namely “One Country, Two Systems”, “Hong Kong people administering Hong Kong”, and “high degree of autonomy”, as stipulated by the Sino-British Joint Declaration and the Basic Law, still remain unchanged.
- PLG hopes that apart from Hong Kong people, all departments of the Central Government must also learn the Basic Law as said by Zhang, and not to distort or even violate the Basic Law.
Progressive Lawyers Group
30 June 2017