Hong Kong Basic Law Guide, Meaning , Facts, Information and Description
The
Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Basic Law) serves as the
constitutional document of Hong Kong. It was adopted on
April 4,
1990 by the Seventh
National People's Congress (NPC) of the People's Republic of China (PRC), and went into effect on
July 1,
1997 when this former colony of
United Kingdom reunified with
Mainland China.
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 December 19, 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 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 impacts 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.
General principles enshrined under the Basic Law
- The HKSAR has a high degree of autonomy and enjoys executive, legislative and independent judicial power, including that of final adjudication (Article 2). An implication is that the former judicial recourse by appealing to the English Privy Council 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 HKSAR shall be composed of permanent residents of Hong Kong in accordance with the relevant provisions of the Basic Law. (Article 3)
- The socialist system and policies shall not be practised in the HKSAR, and the previous capitalist system and way of life shall remain unchanged for 50 years. (Article 5)
- The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation 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 HKSAR. (Article 8)
- The HKSAR shall protect the right of ownership of private property in accordance with law. (Article 6)
- 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 election in accordance with law. (Articles 25-26)
- The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention 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. (Article 28)
- Hong Kong residents shall have, among other things, freedom of speech, freedom of the press and of publication; freedom of association, freedom of assembly, 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 unions, and to strike. (Articles 27-38).
- The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR. (Article 39)
- Although the PRC has responsibility for Hong Kong's foreign relations and defence, Hong Kong is permitted to participate in international organizations or conferences in appropriate fields limited to states and affecting the HKSAR, or may attend in such other capacity as may be permitted by the PRC government and the international organization or conference concerned, and may express their views, using the name "Hong Kong, China". The HKSAR may also, also using the name "Hong Kong, China", participate in international organizations and conferences not limited to states.
Controversial issues in relation to the Basic Law
After the reunification of Hong Kong in 1997, the Basic Law came under spotlight in the following controversial incidents in the Region:
- The right of abode issue in 1999, during which the Government sought an interpretation of Articles 22 and 24 from the Standing Committee of the National People's Congress 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 independence in Hong Kong.
- Article 23 of the Basic Law 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 has become a subject of considerable controversy when the Government of the HKSAR attempted to introduce legislation to implement the Article in 2002 to 2003. After massive demonstrations in July 1, 2003, the government indefinitely withdrew its draft of the new laws.
- Since the Article 23 controversy, a sector of the population, led by the democratic camp, has began to call for universal suffrage for the election of the Chief Executive in 2007, and all seats of the Legislative Council in 2008, in order to better preserve their way of life. While this is not ruled out under Articles 45 and 67 of the Basic Law, the conservative camp and legal experts in Mainland China believe that this would violate the "principle of gradual and orderly progress" and the "in the light of the actual situation" set forth in Article 45 and 67. The controversy was finally settled legally by the Standing Committee of the National People's Congress, which ruled out the possibility of universal suffrage in 2007 and 2008 on April 26, 2004. Nevertheless, the democratic camp continued their call for universal suffrage.
See also: Basic Law
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