Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China is a Chinese national law that describes the system of government of Hong Kong as a Special Administrative Region. With nine chapters, 160 articles, and three annexes, the law implements the basic policies declared by China in the 1984 Sino-British Joint Declaration that would apply to Hong Kong once British colonial rule ended in 1997.
Under the law's basic principle of "one country, two systems", the socialist system and policies of China are excluded from Hong Kong. Instead, Hong Kong will continue its capitalist system and way of life from before 1997 for at least 50 years in 2047. As an organic law, the Basic Law also describes sources of law, the branches of government, the relationship between Hong Kong and the Chinese Central Government, and the fundamental rights and duties of Hong Kong residents.
The drafting process began in 1985. The law was enacted by the National People's Congress on 4 April 1990 and took effect on 1 July 1997 after the handover of Hong Kong. It replaced the Letters Patent and the Royal Instructions as Hong Kong's main constitutional document. As such, the Basic Law has been referred to as Hong Kong's "mini constitution".
History
ceded Hong Kong Island and parts of the Kowloon Peninsula to the United Kingdom after it was defeated in the Opium Wars of the mid-19th century. The British government then obtained a 99-year lease of the New Territories in 1898, which expanded the colony of Hong Kong for the final time. Chinese governments following the Qing Empire's collapse in 1911 refer to these agreements as "unequal treaties" and were invalid.In 1982, Chinese and British officials separately began to meet Hong Kong business and political elites in Hong Kong. In September, Deng Xiaoping met Thatcher in Beijing and told her that China's sovereignty over Hong Kong was not negotiable, but both agreed to begin diplomatic discussions. The Chinese government then declared that it would "resume exercising sovereignty" in Hong Kong in 1997 peacefully while maintaining Hong Kong's stability and standing in the global economy. Diplomatic efforts resulted in the signing of the Sino-British Joint Declaration in 1984 to prepare for sovereignty over Hong Kong to be transferred from the United Kingdom to China in 1997.
Shortly after, the National People's Congress created the Basic Law Drafting Committee in 1985. In June, the Standing Committee of the National People's Congress approved the BLDC of 36 members from China and 23 members from Hong Kong, chaired by Chinese diplomat Ji Pengfei. Twelve of the 23 Hong Kong members were connected to the city's business and industrial sectors.
The Basic Law Consultative Committee composed of 180 Hong Kong community leaders was also established in the same year to collect views on the draft law in Hong Kong. Similar to the BLDC, the BLCC was also dominated by business and professional elites.
The first draft was published in April 1988 followed by a five-month public consultation exercise. 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 flag and emblem of the Hong Kong Special Administrative Region.
On 4 June 1989, the BLDC's only two members representing the nascent pro-democracy camp, Martin Lee and Szeto Wah, suspended their participation after the military crackdown of the Tiananmen Square protests of 1989. 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. In September, Lee returned to the BLDC after being urged to do so by many in Hong Kong. However, Beijing expelled Lee and Szeto from the BLDC in October and called them "subversives".
Basic principles
The basic principles of Hong Kong's governance under Chinese sovereignty mirror those in the Sino-British Joint Declaration, and most of them are described in the first chapter of the Basic Law. The NPCSC has identified Articles 1 and 12 as the fundamental provisions of the Basic Law.Article 1 states that Hong Kong as a part of the People's Republic of China but maintains legal and political systems separate from those in mainland China until 2047. Hong Kong has a high degree of autonomy and maintains its own executive, legislative and judicial branches. Judicial power includes 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. 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.
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.
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 should prevail over Hong Kong's constitutional autonomy. 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.
Autonomy under Chinese sovereignty
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.Central government agencies in Hong Kong
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".
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. 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".
Zhang Xiaoming has also said the Office of the National Security Commissioner is not subject to the restrictions in Article 22.
Effect of national laws
Except the Basic Law and the Constitution, 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. The NPCSC can 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.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.
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. The effectiveness of Chinese law inside Hong Kong territory was challenged in the same year in the Court of First Instance. 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.