The Basic Law of the Hong Kong Special Administrative Region was promulgated after China and Britain signed the Sino-British Joint Declaration on the Question of Hong Kong and has elaborated on the 12 basic principles and policies regarding Hong Kong that China listed in the Joint Declaration. That is why some people argue that the Basic Law is to some extent a derivative of the Joint Declaration and Britain, therefore, has the right to monitor the implementation of “one country, two systems” in Hong Kong in accordance with the Joint Declaration. But are they correct in saying so?
Let’s not forget the Joint Declaration contains separate statements by the Chinese government and by its United Kingdom counterpart as well as their joint statements. The Joint Declaration was written this way because the two governments agreed on certain points but not on others. Thus, it was necessary to include points they agreed on and those they didn’t agree on in the Joint Declaration. As it turned out, the Joint Declaration consists of three parts: namely, confirming that China would resume the exercise of sovereignty over Hong Kong; the arrangements for the transitional period before Hong Kong officially returned to the motherland; and the fundamental policies the Chinese central government would be implementing in the HKSAR afterward. The UK government had the right and responsibility to implement the first two parts but not the final part because it no longer exercises jurisdiction over Hong Kong, and China is solely responsible for the HKSAR according to the Basic Law, which became effective at the stroke of midnight on July 1, 1997. The Chinese side stressed more than once that what policies would be implemented in Hong Kong is China’s domestic affairs and need no permission or supervision from any other country. The Chinese government has also reiterated many times over the years that the UK does not have sovereign rule, governing power or supervisory power over Hong Kong affairs, which are China’s internal affairs.
The statutory basis of the Basic Law is not the Joint Declaration but the Constitution of the People’s Republic of China, of which Article 31 provides the constitutional ground for the establishment of special administrative regions as well as related legislation
The statutory basis of the Basic Law is not the Joint Declaration but the Constitution of the People’s Republic of China, of which Article 31 provides the constitutional ground for the establishment of special administrative regions as well as related legislation. The Constitution is the mother of all Chinese laws, including the Basic Law of the HKSAR. Without the Constitution, the Basic Law would not have been created. The 12 principles and policies the Chinese government put in the Joint Declaration were intended to expound the legislative ideas and rationale behind the Basic Law, rather than to authorize the legislation of the Basic Law, which was promulgated in accordance with the Constitution of the PRC, not the Joint Declaration.
The Basic Law is a constitutional document, but it is not Hong Kong’s constitution. China has only one constitution, which is why Hong Kong must follow not only the Basic Law but also the Constitution. It does not mean that all articles of the Constitution directly apply to Hong Kong, but rather that Hong Kong, as a special administrative region of China, must recognize and respect the country’s social system and governance system. Meanwhile, the articles of the Constitution that establish the sovereign powers of “one country” directly apply to the HKSAR. For instance, the Constitution stipulates that Taiwan is a part of China, and the reunification of the Chinese nation is a sacred duty of all Chinese people, including Hong Kong society, of course.
The Basic Law took effect on July 1, 1997, but was promulgated on April 4, 1990. It allowed Hong Kong compatriots to see how “one country, two systems” would benefit them seven years in advance and thus eased many people’s worries about the city’s future. Since taking effect nearly 23 years ago, the Basic Law has been serving the implementation of “one country, two systems” with legal assurance.
“One country, two systems” is unprecedented, which is why it went through an arduous process of reinvention from a concept into an actual law — the Basic Law. It began with a drafting committee composed of experts from both the mainland and Hong Kong, which, assisted by an advisory committee composed of Hong Kong dignitaries, spent four years and eight months to complete the draft Basic Law after two rounds of public consultation over every detail. Deng Xiaoping described it as “a law of historic and international significance”, as well as “a creative masterpiece”. The Basic Law protects “one country, two systems”; it should therefore be cherished by all Hong Kong residents wholeheartedly.
The author is a veteran current affairs commentator.
The views do not necessarily reflect those of China Daily.
