The Basic Law: Hong Kong's Unique Constitutional Blueprint
The Basic Law: Hong Kong's
Unique Constitutional Blueprint
Hong Kong's legal and political identity is defined by a singular and
historic document: the Basic Law of the Hong Kong Special Administrative
Region (HKSAR). Enacted by the National People's Congress (NPC) of the
People's Republic of China (PRC) in 1990 and taking effect on July 1, 1997, it
serves as the "mini-constitution" that governs the HKSAR following
its handover from the United Kingdom.
The Cornerstones of
"One Country, Two Systems"
The Sino-British Joint Declaration (1984) laid the groundwork for the
Basic Law, enshrining the core policies of the PRC regarding Hong Kong. The
principle of "One Country, Two Systems" is the most prominent
feature, designed to ensure Hong Kong's prosperity and stability.
- Continuation of
Systems: Article 5 of the Basic Law explicitly states that the socialist
system and policies practiced in Mainland China shall not be
practiced in the HKSAR. Hong Kong's previous capitalist system and way
of life are to remain unchanged for 50 years from 1997.
- High Degree of
Autonomy: The Basic Law grants Hong Kong a high degree of autonomy,
allowing it to enjoy executive, legislative, and independent judicial
power, including that of final adjudication. The Central People's
Government is responsible only for defence and foreign affairs
relating to the HKSAR.
- The Common Law
Heritage: A fundamental aspect of this autonomy is the continuation of Hong
Kong's common law legal system. This includes the maintenance of previous
laws, the use of precedents from other common law jurisdictions, and the
use of both Chinese and English as official languages in the courts.
Key Features of the HKSAR's
Political Structure
The Basic Law defines a distinct political structure for the HKSAR,
largely modelled on the prior colonial system, but with mechanisms designed to
reflect the new constitutional reality.
Executive-Led Government
The political structure is characteristically executive-led.
- Chief
Executive: The Chief Executive is the head of the HKSAR and the head of the
HKSAR Government. The office holder is accountable to both the Central
People's Government and the HKSAR.
- Executive
Council: This body assists the Chief Executive in policy-making.
The Legislature and Judiciary
The Basic Law establishes a Legislative Council (LegCo) and
ensures a strong, independent judiciary.
- Legislative
Council (LegCo): LegCo is the legislature of the HKSAR, responsible for enacting
laws, approving budgets, and monitoring the work of the government. The
method for its formation is prescribed in Annex II of the Basic Law.
- Independent
Judiciary: The courts exercise independent judicial power, free from
any interference. The power of final adjudication rests with the
Court of Final Appeal (CFA) in Hong Kong, a critical safeguard for the
common law system. Judges are required to take an oath to handle and
determine cases strictly in accordance with the law.
Fundamental Rights and
Interpretation Challenges
Chapter III of the Basic Law outlines the Fundamental Rights and
Duties of Residents, providing robust protections that align with
international human rights covenants. These rights include equality before the
law, freedom of speech, freedom of the press, freedom of assembly, and freedom
of conscience and religious belief.
However, the Basic Law is not just a domestic constitutional document; it
is also a Chinese national law. This dual nature creates unique and complex
challenges, especially concerning its interpretation.
- Power of
Interpretation: While Hong Kong courts exercise the power of judicial review to
interpret provisions relating to the HKSAR's autonomy, the ultimate power
of interpreting the Basic Law is vested in the Standing Committee of the
National People's Congress (NPCSC) in Beijing, as stipulated in
Article 158. This division of power represents the ultimate expression of
the 'One Country, Two Systems' framework and is often the focus of
constitutional debate and tension.
- National Laws: The vast majority of PRC
national laws do not apply in the HKSAR. Only a few, related to defence,
foreign affairs, or other matters outside the HKSAR's autonomy, are listed
in Annex III and applied locally by promulgation or local legislation.
The Basic Law of the HKSAR is a living document that attempts to bridge
two vastly different legal and political traditions. Its implementation is a
continuous process of negotiation and constitutional dialogue, constantly
balancing the imperatives of "One Country" with the preservation of
"Two Systems" to ensure the city’s continued unique status and
vitality.
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