Hong Kong Basic Law

Shortly after the Sino–British Joint Declaration was signed, the National People's Congress set up the Basic Law Drafting Committee (BLDC) in 1985, setting the basis of the transfer of sovereignty in Hong Kong from the United Kingdom to China.^[6]: 444 The committee was responsible for writing the draft Basic Law. In June 1985, the Standing Committee of the National People's Congress (NPCSC) approved the membership of the BLDC, which consisted of 36 members from China and 23 members from Hong Kong,^[6]: 444 chaired by Chinese diplomat Ji Pengfei. Twelve of the 23 members from Hong Kong were connected to the city's business and industrial sectors.^{[7]: 11 [6]: 444}

A Basic Law Consultative Committee (BLCC) consisting of Hong Kong community leaders was also established in 1985 to collect views in Hong Kong on the draft law. Similar to the BLDC, the BLCC was also dominated by business and professional elites.^[8]: 174

The first draft was published in April 1988 followed by a five-month public consultation. The second draft was published in February 1989, and the subsequent consultation period ended in October 1989. The Basic Law was 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.

On 4 June 1989, the BLDC's only two members representing the nascent pro-democracy camp, Martin Lee and Szeto Wah, declared that they would suspend their participation after the military crackdown of the Tiananmen Square protests of 1989.^[7]: 23 In September 1989, Lee announced that he would return to the BLDC after being urged to do so by many in Hong Kong.^[7]: 23 However, in October, Beijing expelled Lee and Szeto from the BLDC as "subversives".^[7]: 15 Lee and Szeto had voiced support for student activists in Beijing and had led the Hong Kong Alliance in Support of Patriotic Democratic Movements in China, an organisation instrumental in assisting political dissidents leave China after the military crackdown on 4 June.^{[9]: 131–132}

The basic principles of Hong Kong's governance under Chinese sovereignty mirror those in the Sino-British Joint Declaration, and most of them are set out in the first chapter of the Basic Law. The NPCSC has identified Articles 1 and 12 as the fundamental provisions of the Basic Law.^[10]

Article 1 declares Hong Kong as a part of the People's Republic of China, but it maintains legal and political systems distinct from those in mainland China until 2047.^[11] Hong Kong has a high degree of autonomy and maintains its own executive, legislative and judicial branches.^[12] Judicial power includes the power of final adjudication, which replaces the colonial judicial recourse of appealing to the Judicial Committee of the Privy Council in the United Kingdom with appeals to the Court of Final Appeal. The Hong Kong national security law incorporated into Annex III of the Basic Law overrides incompatible local ordinances and allows mainland Chinese courts to preside over cases that involve certain national security crimes.

Article 5 requires that the socialist system and policies to not be practised in Hong Kong and the capitalist system and way of life before the handover remain for 50 years after the handover, or 2047.^[12] The common law, rules of equity, ordinances, subsidiary legislation and customary law that govern certain land rights in the New Territories that were in force before the handover are maintained, except for any that contravene the Basic Law and subject to any amendment by the legislature.^[12]

Article 12 declares that Hong Kong enjoys a high degree of autonomy and comes directly under the Central People's Government.

Private ownership of property is also a right protected in Hong Kong.^[12]

Although the Basic Law was drafted to give effect to "One Country, Two Systems", on 10 June 2014, Beijing released a policy report asserting its authority over Hong Kong that started a conflict between "one country" and "two systems" by stating that the interests of China ("one country") should prevail over Hong Kong's constitutional autonomy ("two systems").^[13] This ignited criticism from many people in Hong Kong, who said that the Communist leadership was undermining the Basic Law Article 8, in that it was reneging on its pledges to abide by the policy that allows for a democratic, autonomous Hong Kong under Beijing's rule.^[14]

The Basic Law guarantees Hong Kong a high degree of autonomy under Chinese rule, with the exception of foreign affairs and defence which remains the purview of the Central People's Government.^[15]

Four agencies of the central government operate in Hong Kong. The Office of the Commissioner of the Ministry of Foreign Affairs was established under Article 13 of the Basic Law and began operating after the handover. The Liaison Office of the Central People's Government replaced in 2000 the Hong Kong branch of Xinhua News Agency, which served as the de facto diplomatic mission of China to Hong Kong since 1947. The Hong Kong Garrison of the People's Liberation Army began operating after the handover. The Office for Safeguarding National Security was established in June 2020 under the Hong Kong National Security Law.

Article 22 states that "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 Hong Kong Special Administrative Region administers on its own in accordance with this Law".^[16]

In April 2020, the provision sparked a debate after the Liaison Office and the Hong Kong and Macao Affairs Office criticised pro-democratic legislators for delaying the election of the chairperson of the Legislative Council House Committee.^[17] Pro-democratic legislators said the offices violated Article 22 by commenting on the election of a chairperson in the local legislature. In response, the Liaison Office said both itself and the Hong Kong and Macao Affairs Office are not subject to Article 22 because they were authorised by central authorities to specialize in handling Hong Kong affairs and not what are commonly meant by "departments under the Central People’s Government".^[18][19] On the website of the State Council of China, a.k.a. the Central People's Government, the Hong Kong and Macao Affairs Office (国务院港澳事务办公室) and Xinhua News Agency (新华通讯社), whose Hong Kong branch was predecessor to the Liaison Office, are listed among institutions separate from the constituent departments of the State Council (国务院组成部门).^[20]

Zhang Xiaoming has also said the Office of the National Security Commissioner is not subject to the restrictions in Article 22.^[21]

Except the Basic Law and the Constitution,^[22]: 124 national laws are not enforced in Hong Kong unless they are listed in Annex III and applied by local promulgation or legislation. When national laws are enacted locally by the Legislative Council, the local version adapts to the context of Hong Kong for the national law to have full effect.^{[23]: para. 18.2} The NPCSC has the power to amend legislation included in Annex III after consulting its Basic Law committee and the Hong Kong government. Laws in Annex III must be those related to foreign affairs, national defence or matters not within Hong Kong's autonomy.^[24]

As of June 2020, Annex III includes laws on the designation of capital, national flag and anthem, territorial claims, nationality, diplomatic privileges and immunity, garrisoning of the People's Liberation Army and crimes involving national security. In May 2020, the National People's Congress announced that the NPCSC would enact a national security law tailored for Hong Kong in response to the 2019–20 Hong Kong protests. The law was added to Annex III and promulgated without being passed in the Legislative Council.^[25]

National laws can be applied if they only affect an area in Hong Kong. In 2018, the Hong Kong West Kowloon station of the Guangzhou–Shenzhen–Hong Kong Express Rail Link was completed to include a section where mainland Chinese officials are allowed to exercise Chinese laws, an arrangement that intended to reduce the time needed for immigration.^[26] The effectiveness of Chinese law inside Hong Kong territory was challenged in the same year in the Court of First Instance.^[27] The court ruled that the Basic Law is a flexible constitution and as such can be interpreted for the needs of economic integration; the arrangement of having mainland Chinese laws in Hong Kong for the purposes of customs, immigration and quarantine does not contravene the "one country, two systems" principle.^{[23]: para. 18.3}

Article 23 requires Hong Kong to enact local national security laws that prohibit treason, secession, sedition, subversion against the central government, theft of state secrets and foreign organisations from conducting political activities in Hong Kong. In 2003, the Hong Kong government tabled the National Security (Legislative Provisions) Bill 2003, which triggered widespread protest. The proposed legislation gave more power to the police, such as not requiring a search warrant to search the home of a suspected terrorist. After the demonstrations and the withdrawal by the Liberal Party of their support for the bill, the government shelved the bill indefinitely.

The rights of Hong Kong residents are guaranteed by chapter 3 of the Basic Law. Article 39 also applies provisions of the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and international labour conventions that was in force in Hong Kong before the handover.^[28] While the most parts of the ICCPR is ratified as the Hong Kong Bill of Rights Ordinance in largely identical language,^[29]: 527 no equivalent legislation was made to implement the ICESCR.

Hong Kong residents are equal before the law. Hong Kong residents 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.^[28] The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident can be arbitrarily or unlawfully arrested, detained or imprisoned. Arbitrary or unlawful search of the body of any resident, deprivation or restriction of the freedom of the person are also prohibited. Torture of any resident and arbitrary or unlawful deprivation of the life of any resident shall be prohibited.^[28]

In late 2015, five staff members of a bookshop selling books and magazines banned in mainland China disappeared (see Causeway Bay Books disappearances). At least two of them disappeared while in mainland China, one while in Thailand. One member was last seen in Hong Kong, eventually reappearing in Shenzhen, across the Chinese border, without the necessary travel documents. While reaction to the October disappearances was muted, as unexplained disappearances and lengthy extrajudicial detentions are known to occur in mainland China,^[30] the unprecedented disappearance of a person from Hong Kong, and the bizarre events surrounding it, shocked the city and crystallised international concern over the possible abduction of Hong Kong citizens by Chinese public security bureau officials and their likely rendition, in violation of several articles of the Basic Law and the one country, two systems principle.^[31][32][33] The widespread suspicion that they were under detention in mainland China was later confirmed with apparently scripted video "confessions" and assurances by the men that they were remaining in China of their own accord.^[32] In June 2016, one of the five, Lam Wing-kee, revealed in a dramatic press conference that he and the others had been held without due process and that Lee Po had indeed been illegally abducted from Hong Kong, all by a shadowy 'Central Investigation Team' ("中央專案組" or "中央調查組").^[34]

Article 95 provides for mutual judicial assistance between Hong Kong and the PRC; however, serious stumbling blocks, such as capital punishment stand in the way of a formal understanding of extradition. 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 Chen, a professor, and Gladys Li, chairman of justice of the Hong Kong section of the International Commission of Jurists, feel that this situation has serious ramifications for judicial independence in Hong Kong.

Permanent residents of the Hong Kong Special Administrative Region have the right to vote and stand for election in accordance with the Basic Law.^[35] Provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong when the Basic Law came into effect were allowed to remain in force.^[36]

Article 45 stipulates that the Chief Executive shall be selected by election or through local consultations and be appointed by the Central People's Government, with the ultimate aim of selection by universal suffrage upon nomination by a representative committee under democratic procedures."^{[37][38]: 190} However, Hong Kong has yet to implement universal suffrage for the elections, because the Basic Law states that the electoral method are subject to the "actual situation" of Hong Kong and "the principle of gradual and orderly progress".^[39]

Whether the 2007 chief executive election and the 2008 Legislative Council elections could be performed by universal suffrage was determined on 26 April 2004, when the NPCSC ruled out the possibility as it deemed Hong Kong not mature enough for such elections.^[40]

In 2014, the 31 August Decision by the NPCSC stated that starting from 2017, the selection of the Chief Executive may be implemented by universal suffrage upon nomination of candidates by a broadly representative committee and subject to appointment by the Central People's Government.^[41] It went on to state that such a person must love the country and love Hong Kong and that safeguards for this purpose should be provided for by the specific method of universal suffrage, without specifying what the safeguards were to be.^[41] The reform proposal encompassing this and other changes was rejected by the Legislative Council on June 18, 2015, after an ill-timed walk-out by many pro-establishment legislators.^[42]

The courts of Hong Kong are given the power to review acts of the executive or legislature and declare them invalid if they are inconsistent with the Basic Law.

The Chief Executive of Hong Kong can be selected by election or through consultations held locally and be appointed by the Central People's Government.

The term of the chief executive after their predecessor resigns was a question that emerged after Tung Chee-hwa resigned on 10 March 2005. The legal community and the pro-democracy camp said the term of the new chief executive should be five years, according to Article 46. However, the Hong Kong government, some Beijing figures^[who?] and the pro-Beijing camp said that it should be the remaining term of the original Chief Executive, by a technicality in the Chinese version of the Basic Law, introducing the remaining term concept. The Hong Kong government sought an interpretation from the NPCSC on 6 April 2005. The NPCSC 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?] 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.^{[citation needed]}

The Basic Law also guarantees the welfare and benefits of civil servants. 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. Whether pay-cuts for civil servants and having a deficit budget are allowed under the Basic Law had been raised. 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 Basic Law provides the Hong Kong government limited power to engage in international affairs. Under the name "Hong Kong, China", the Hong Kong government can enter into bilateral agreements with non-Chinese regions and international organisations related to certain fields, including commerce, trade, communications, culture, tourism and sports.^[43] As members of a Chinese delegation, government representatives can also engage in diplomatic negotiations and participate in international organisations and conferences that directly affect Hong Kong.^[44]

The Basic Law can be interpreted by Hong Kong courts in the course of adjudication and by the Standing Committee of the National People's Congress (NPCSC).^[45] As of 7 November 2016, the NPCSC has interpreted the Basic Law on five occasions:

• Interpretation regarding Articles 22(4) and 24(2)(3) of the Basic Law, adopted on 26 June 1999 with relations to the right of abode;
• Interpretation regarding Annex I(7) and Annex II(III) to the Basic Law, adopted on April 6, 2004, over the procedure of amending the electoral methods of the Chief Executive and Legislative Council;
• Interpretation regarding the Second Paragraph in Article 53, adopted on April 27, 2005, regarding the term of office of a new Chief Executive succeeding a resigned predecessor;
• Interpretation regarding the First Paragraph of Article 13 and Article 19 of the Basic Law, adopted on August 26, 2011, before the Hong Kong Court of Final Appeal hands down its judgment on Democratic Republic of Congo v FG Hemisphere Associates LLC ; and
• Interpretation of Article 104 of the Basic Law, adopted on 7 November 2016), regarding the requirements of lawful oaths and affirmations surrounding the oath-taking controversy over newly elected LegCo members.^[46]

Of the five interpretations to date, only one interpretation was sought by the Hong Kong Court of Final Appeal (CFA). The interpretation was requested in the 2011 case of Democratic Republic of Congo v FG Hemisphere Associates LLC and it concerned the jurisdiction of Hong Kong courts over acts of state, among other matters. The Government of Hong Kong sought two NPCSC interpretations on Basic Law provisions regarding the right of abode and the term of office of a new Chief Executive after his predecessor has resigned before the end of his term, in 1999 and 2005 respectively. The NPCSC had also interpreted the Basic Law twice on its own initiative, without being requested by any branch of government in Hong Kong. The first of the two occurred in 2004, and concerned the amendment of the chief executive and the Legislative Council election methods for 2007 and 2008 respectively. The second was issued in November 2016 on the substantive requirements of lawful oaths and affirmations as stipulated in Article 104 of the Basic Law. As interpretations by the NPCSC are not retroactive,^[47] an interpretation on the Basic Law does not affect cases that have already been adjudicated.

The basic principles for interpreting the Basic Law are described in Article 158 and case law. According to Article 158(1), the NPCSC has the power of final interpretation. This is consistent with the NPCSC's general power to interpret Chinese national laws as provided by Article 67(4) of the Constitution of the People's Republic of China.^[48]: 222 As a national law, the Basic Law was drafted in Chinese, and its Chinese version takes precedence over the official English version when discrepancies arise.^[49]: 408 Before interpreting the Basic Law, the NPCSC must consult its subcommittee, the Committee for the Basic Law of the Hong Kong Special Administrative Region.^[50]

Hong Kong courts may also interpret the Basic Law when adjudicating cases, when the provisions addressed are within Hong Kong's autonomy.^[47] Hong Kong courts can also interpret provisions on matters the Central People's Government is responsible for or those related to the relationship between the Central government and Hong Kong, provided that the case is being heard by the CFA, that the interpretation will affect the judgments of the case, and that the CFA has sought a binding NPCSC interpretation on the matter.^[47]

To decide whether an NPCSC interpretation should be sought, the CFA applies a two-stage approach based on Article 158(3) formulated in Ng Ka Ling v Director of Immigration. The first stage concerns the "classification condition", which is satisfied if the provision to be interpreted concerns either affairs within the responsibility of the Central People's Government or the relationship between the Central Authorities and Hong Kong.^{[51]: 32–33} Provisions satisfying the classification condition are "excluded provisions", suggesting that they cannot be interpreted by the CFA. When the court needs to refer to an excluded provision to construe a non-excluded provision, the CFA is not required to request an NPCSC interpretation on the excluded provision. Instead, the CFA applies the "predominant test", in which the court asks which provision is predominantly the one needed to be interpreted in the present adjudication.^[51]: 33 The second test concerns whether the "necessity condition" is satisfied. The condition is satisfied when the court needs the excluded provision to be interpreted and that the interpretation will affect the judgment on the case.^{[51]: 30–31}

Hong Kong courts use the purposive approach to interpret the Basic Law. Since Hong Kong's legal system is separate from that of mainland China, its courts are bound to adopt the common law approach to interpretation.^[48]: 222 The courts construe the Basic Law's language to consider the provisions' context and purpose by finding its legislative intent;^{[48]: 223–224} the legislator's intent alone is not considered the legislative intent.^[48]: 223 Ambiguities are resolved by accounting for the principles and purposes stated in the Chinese Constitution and other materials.^[51]: 28 Yet, the courts treat the Basic Law as a "living instrument" that adapts to changing needs and circumstances.^{[51]: 28 [52]: 125} While Hong Kong courts account for the historical context of the Basic Law, they also consider "new social, political and historical realities".^[53]: 563

The interpretation of the Basic Law by the Hong Kong courts and the NPCSC is politically contentious. Albert Chen has described NPCSC interpretations as the "major cause of constitutional controversies" since the handover.^[45]: 632

The constitutional powers of the Hong Kong judiciary was first contested in HKSAR v Ma Wai Kwan,^[54] which was decided by the Court of Appeal 28 days after the handover. The applicants argued the Provisional Legislative Council established unilaterally before the handover was unlawful, and the laws it enacted were void. The court dismissed this argument. Among other reasons, the court held that as a local court it had no power to review an act of a sovereign authority.^[45]: 633 The court reasoned that since Article 19 of the Basic Law did not expand its judicial powers and it had no power to review the validity of a sovereign act under colonial rule, it did not hold such power after the handover.^[45]: 633 While Justice Gerald Nazareth agreed with the majority decision, he questioned whether the constitutional order of China and that of the United Kingdom were analogous. He also noted the Chinese constitution was not reviewed in detail during the trial.^{[54]: 352–353} Johannes Chan commented that the lack of judicial review power to review acts of Parliament reflected parliamentary supremacy, a doctrine borne out of unwritten constitutional systems.^[55]: 376 Since China has a written constitution and the Basic Law describes the relationship between Hong Kong and the central government unlike the colonial Letters Patent and the Royal Instructions, Chan questioned whether parliamentary supremacy fully applies in Hong Kong after 1997.^[55]: 377

In the Ng Ka Ling case, the CFA tried to assert it has powers to review acts of the National People's Congress (NPC) or the NPCSC to determine whether they are consistent with the Basic Law.^[45]: 635

The Hong Kong government later sought an interpretation of Articles 22 and 24 from the NPCSC to avoid a potential influx of over a million mainland Chinese migrants (according to government estimates) into Hong Kong. This has triggered a debate on judicial independence in Hong Kong.

Article 159 sets out the amendment process, and gives the National People's Congress the sole power to amend it. Amendments can be proposed by either the NPCSC, the State Council, or Hong Kong. For Hong Kong to propose amendments, the amendments first need the support of two-thirds of the Hong Kong Legislative Council, two-thirds of the deputies representing Hong Kong in the National People's Congress, and the approval of Hong Kong's Chief Executive. All proposals needs to be reviewed by the Committee for the Basic Law of the Hong Kong Special Administrative Region, and no amendments can "contravene the established basic policies of the People's Republic of China regarding Hong Kong".^[56]

It might be argued that interpretations of the Basic Law by the Standing Committee of the National People's Congress are effectively “amendments” to the Basic Law. The Hong Kong Court has nonetheless found NPCSC interpretations to have "supplementary” legislative effects in a manner consistent with Chinese jurisprudence. Similarly, the NPCSC's interpretive power could be used to modify a nearly unrestricted range of local laws without recourse by either the HKSAR courts or Government.^[57]

According to Annexes I and II of the Basic Law adopted in April 1990, amendments could be made to the methods for selecting the chief executive and forming the Legislative Council for the terms subsequent to the year 2007 with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive. Amendments should then be reported to the NPCSC for approval or for the record.

In the NPCSC interpretation to the Basic Law adopted on April 6, 2004, the NPCSC stipulated the “five steps” of initiating political reform under Annexes I and II of the Basic Law:^[58]

• the Chief Executive submit a report on whether there is a need to amend the methods for selecting the CE for forming LegCo the Chairman of NPCSC;
• the NPCSC make a decision approving or vetoing amendments to electoral methods of the CE or LegCo;
• the HKSAR Government submit a motion concerning amendments of Annexes I and II to LegCo;
• LegCo approve of the motion concerning amendments with a two-thirds majority of all the members, and the CE give formal assent; and
• the NPCSC approve and file for record amendments to Annexes I and II.

Under the NPCSC's 2021 amendment of Annexes I and II, the NPCSC now exercises the power to amend Annexes I and II of the Basic Law. The “five steps” of initiating political reform by the HKSAR were no longer in force.

• Macau Basic Law
• Judicial review
• Hong Kong Royal Instructions and Hong Kong Letters Patent
• Hong Kong Basic Law Article 69

 

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Hong Kong Basic Law

• 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