Lecture 7: One Country, Two Systems (I) PDF

Lecture 7 One Country, Two Systems (I) 1  All course materials, including anything accessible on Moodle, should not be circulated without the instructor’s permission.  All materials are solely for academic purposes.  Important Notice: The information...

Lecture 7 One Country, Two Systems (I) 1  All course materials, including anything accessible on Moodle, should not be circulated without the instructor’s permission.  All materials are solely for academic purposes.  Important Notice: The information contained in this teaching material has no legal status, and is made available for information only and should not be relied on as an official version of the Constitution of the People’s Republic of China, the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and related constitutional instruments herein. 2 1. Review of the Previous Lecture 2. The Chinese Constitution and the Basic Law 3. Important Principles of the Basic Law: Drafting, Concepts, Purposes, Features, National Interests and Security 3  The Sino-British negotiations: Started in 1979 when Murray MacLehose visited Beijing.  The business sector of Hong Kong in the 70s first raised the concern about the expiry of the Convention for the Extension of Hong Kong Territory (1898), in which the Qing government “leased” the New Territories to Britain for 99 years.  Sino-British Joint Declaration signed on 19 December 1984. 4  Hong Kong’s political system: An executive-led system (Cheung & Wong, 2004). The executive-led system means that most of the decision-making power is vested in the executive branch and the Chief Executive (CE) has a superior constitutional status.  Consultative Politics in Hong Kong: “the willingness to consult the population” for public decision-making (Lam, 2018, p.125).  “Administrative Absorption of Politics” (King, 1975) 5 What is a Constitution?  According to Andrew Heywood (2019, p. 293), constitution as a concept means: ▪ A constitution is, broadly, a set of rules … that seek to: 1. establish the duties, powers and functions of the various institutions of government; 2. regulate the relationships between them; and 3. define the relationship between the state and the individual. ▪ the aim of which is to codify major constitutional provisions; it constitutes the highest law in the land” (p. 293). 6  Constitution of the People’s Republic of China (hereafter it will be referred to as the Chinese Constitution)  The current Chinese Constitution was adopted in 1982. Promulgated by the Announcement of the National People’s Congress on December 4, 1982. (Before the 1982 Constitution, there were the 1954 Constitution, the 1975 Constitution and the 1978 Constitution).  As of today, the 1982 Constitution has been amended five times: 1988, 1993, 1999, 2004, and most recently 2018. 7 The Chinese Constitution  “This Constitution affirms, in legal form, the achievements of the struggles of the Chinese people of all ethnic groups and stipulates the fundamental system and task of the state.”  “It is the fundamental law of the state and has supreme legal force.”  “The people of all ethnic groups, all state organs and armed forces, all political parties and social organizations, and all enterprises and public institutions in the country must treat the Constitution as the fundamental standard of conduct; they have a duty to uphold the sanctity of the Constitution and ensure its compliance.” (The 13th Paragraph of the Preamble of the Chinese Constitution)  It has the most rigorous amendments procedure (Education Bureau of HKSARG, 2020, p. 22) 8 The Chinese Constitution (cont’d)  Article 5 (3rd to 5th paragraphs) – supreme legal force: ▪ “No law, administrative regulation or local regulation shall be in conflict with the Constitution.” ▪ “All state organs and armed forces, all political parties and social organizations, and all enterprises and public institutions must abide by the Constitution and the law. Accountability must be enforced for all acts that violate the Constitution or laws.” ▪ “No organization or individual shall have any privilege beyond the Constitution or the law.” 9 The Chinese Constitution (cont’d)  Article 62 (1st to 4th paragraphs) ▪ “The National People’s Congress (NPC) shall exercise the following functions and powers: ▪ (1) amending the Constitution; ▪ (2) overseeing the enforcement of the Constitution; ▪ (3) enacting and amending criminal, civil, state institutional and other basic laws;”  The Constitution has the most rigorous amendments procedure as compared to other laws – Article 64 “Amendments to the Constitution must be proposed by the National People’s Congress Standing Committee or by one- fifth or more of National People’s Congress deputies and be adopted by a vote of at least two-thirds of National People’s Congress deputies. Laws and other proposals shall be adopted by a majority vote of the National People’s Congress deputies.” 10 The Chinese Constitution (cont’d)  Article 1 of the Chinese Constitution “The People’s Republic of China is a socialist state governed by a people’s democratic dictatorship that is led by the working class and based on an alliance of workers and peasants. The socialist system is the fundamental system of the People’s Republic of China. Leadership by the Communist Party of China is the defining feature of socialism with Chinese characteristics. It is prohibited for any organization or individual to damage the socialist system.” 11 One Country, Two Systems In September 1982, British Prime Minister Margaret Thatcher made a state visit to China. During their meeting, Deng stated clearly that: “To maintain Hong Kong’s prosperity basically depends upon our proposals that China will adopt the policies that are fit for Hong Kong after she resumes the exercise of sovereignty over Hong Kong. Hong Kong’s current political and economic systems and even most of its laws can remain unchanged. Certainly, some should be revised and reformed. Hong Kong will still maintain its capitalist system. Many present systems that are suitable should remain unchanged.” (Tam, 2012, p. 10) 12 One Country, Two Systems (cont’d)  Article 31 of the Chinese Constitution: “The state may establish special administrative regions when necessary. The systems instituted in special administrative regions shall, in light of specific circumstances, be prescribed by laws enacted by the National People’s Congress.”  Article 31, according to Tam (2012), “establishes the constitutional basis for the enactment of the Basic Law” (p. 18). (Education Bureau of HKSARG, 2020, p. 25) 13  “China has a unitary system in which sovereignty is exercised by the Central Authorities. The Constitution prescribes that the NPC is the supreme institution of authority, vested with national legislative power. Also, according to the Constitution, the NPC is vested with the power to establish special administrative regions and to prescribe the systems for such regions.  Therefore, both the establishment of the Hong Kong Special Administrative Regions (HKSAR) and the high degree of autonomy enjoyed by the HKSAR stem from the exercise of sovereignty by the Central Authorities derived from the powers of the Constitution. In other words, powers not delegated to the HKSAR are held by the Central Authorities” (Tam, 2012, p. 18; see also Chen, 2021). 14 Unitary states and federal states in political science (Heywood, 2019)  All modern states are divided on a territorial basis between central (national) and peripheral (regional, provincial or local) institutions.  The balance between centralization and decentralization is shaped by a wide range of historical, cultural, geographical, economic and political factors.  The most prominent of these is the constitutional structure of the state, particularly the location of sovereignty in the political system.  Although modified by other factors, the constitutional structure provides, as a minimum, the framework within which centre– periphery relationships are conducted (p. 393) (Heywood, 2019, p. 394)  Two most common forms of territorial organization found in the modern world: federal and unitary systems. 15  Unitary System Federal System Central Central (Federal Govt) Local Local Local Local Local Local 16 Unitary states and federal states in political science (cont’d)  Examples of federal states include: USA, Brazil, Australia, Canada, Switzerland, etc.  A central feature of the federal A figure which demonstrates the concept system is “a sharing of sovereignty of unitary state from an academic perspective (Heywood, 2019, p. 395) between central and peripheral institutions” (Heywood, 2019, p. 395). (Heywood, 2019, p. 396) 17 Unitary states and federal states in political science (cont’d)  Other features of the federal system (Heywood, 2019, pp. 397-398): ▪ Two relatively autonomous levels of government: Both central government (the federal level) and regional government (the state level) possess a range of powers on which the other cannot encroach. ▪ Written constitution: The responsibilities and powers of each level of government are defined in a codified or ‘written’ constitution. The relationship between the centre and the periphery is therefore conducted within a formal legal framework. The autonomy of each level is usually guaranteed by the fact that neither is able to amend the constitution unilaterally; for example, in Australia and Switzerland amendments to the constitution must also be ratified by an affirmative referendum 18 Unitary states and federal states in political science (cont’d)  Other features of the federal system (Heywood, 2019, pp. 397-398): ▪ Constitutional arbiter: The formal provisions of the constitution are interpreted by a supreme court, which thereby arbitrates in the case of disputes between federal and state levels of government. ▪ Linking institutions: In order to foster cooperation and understanding between federal and state levels of government, the regions and provinces must be given a voice in the processes of central policy-making. This is usually achieved through a bicameral legislature, in which the second chamber or upper house represents the interests of the states. The 105 seats in the Canadian Senate, for example, are assigned on a regional basis, with each of the four major regions receiving 24 seats, the remainder being assigned to smaller regions. 19 Unitary states and federal states in political science (cont’d)  The unitary system is “a system of government in which sovereignty is located in a single national institution, allowing the centre to control the periphery” (Heywood, 2019, p. 394).  “The vast majority of contemporary states have unitary systems of government. These vest sovereign power in a single, national institution” (Heywood, 2019, p. 399).  “Since constitutional supremacy is vested with the A figure which demonstrates the concept of unitary state from an academic perspective centre in a unitary system, any system of (Heywood, 2019, p. 401) peripheral or local government exists at the pleasure of the centre” (Heywood, 2019, p. 400). 20  According to Professor Albert Hung-yee Chen (2021, pp. 62- 63):  “in a unitary state, it is possible to have within it or more autonomous areas or regions each practicing territorial autonomy (i.e., autonomy within the territory of the region).”  “It is also possible for such an autonomous region to exercise a degree of autonomy higher than that of a member state of a federation” 21  From a constitutional theoretical perspective, there are a number of features of such autonomous areas / regions that are different from member states in a federal system (Chen, 2021, pp. 63-64): ▪ “Arrangements of territorial autonomy within a unitary state are usually asymmetrical arrangements under which one or some – but not all – regions of the state are granted high degrees of autonomy”. ▪ “the power of a local government in an autonomous region forming part of a unitary state is often, though not invariably, derived not from the constitution of the unitary state but from a law enacted by the legislature of the state.” ▪ “While a constitution is both supreme over and binding on the national legislature, a law enacted by it is not. … the territorial autonomy of an autonomous region within a unitary state is not necessarily directly protected by the constitution. Where territorial autonomy is derived from ordinary national legislation, it may, at least in constitutional theory, be withdrawn by legislative amendment without the need for constitutional amendment”. 22  (Chen, 2021, pp. 63-64) (cont’d): ▪ “in a unitary state the relationship between the national government and the regional government to which autonomous powers have been devolved may be described as that between a ‘superior’ and an ‘inferior’ or ‘subordinate’ organ of government”. ▪ “the autonomy enjoyed by the people of an autonomous region of a unitary state does not logically exist prior to, but is usually the direct result of, a voluntary delegation or devolution of power by the national authority”. 23 Background of the Basic Law  “In June 1984, in separate meetings with visiting members of a Hong Kong industrial and commercial delegation comprising prominent Hong Kong figures, Deng Xiaoping said: ‘The CPG is firm in its position, principles, and policies on Hong Kong. We have stated on many occasions that after the CPG resumes the exercise of sovereignty over Hong Kong in 1997, Hong Kong’s current social and economic systems will remain unchanged; its legal system will basically remain unchanged; its way of life and its status as a free port and as an international trade and financial centre will remain unchanged; and it can continue to maintain or establish economic relations with other countries and regions. … Our policies with regard to Hong Kong will remain unchanged for 50 years, and we will keep our word.’ On 3 October, during meeting with Hong Kong and Macao compatriots attending the National Day Ceremony, Deng Xiaoping again addressed the question of maintaining Hong Kong’s stability and prosperity” (Tam, 2012, p. 19). 24 The Drafting of the Basic Law (cont’d):  Composition of the Committee: The Drafting Committee consisted of 59 members, 36 from the Mainland and 23 from Hong Kong (Tam, 2012, p. 20).  During the first plenary meeting in Beijing from 1-5 July, 1985, the Drafting Committee “decided to authorise the Hong Kong members to jointly initiate and form a non- governmental and broadly representative Consultative Committee for the Basic Law” (Tam, 2012, p. 20). 25 The Drafting of the Basic Law (cont’d):  Members of the BLCC came from all sectors of society, such as “industry and commerce, finance, real estate, judiciary, legal services, professional services, education, the media, labour, civil service, political groups, students, social services, neighborhood and community groups, religious organisations and a few foreign nationals” (Tam, 2012, pp. 20)  The BLCC was described as “the largest and most representative advisory organisation in the history of Hong Kong” (Tam, 2012, pp. 20-21).  The BLCC held two rounds of consultation. First round from May to September 1986 and second round from February to October 1989.  First draft was published in April 1988. The second draft was published in February 1989, and the subsequent consultation period ended in October 1989. 26 The Drafting of the Basic Law (cont’d):  The Drafting Committee spent five years on drafting the Basic Law. The Basic Law was formally promulgated on 4 April 1990 by the National People’s Congress.  “According to the basic principles stipulated in the Sino-British Joint Declaration and in light of the actual situation in Hong Kong, the Basic Law was enacted in accordance with Article 31 of the Constitution, prescribing the establishment of the HKSAR directly under the CPG and the basic contents of the “One Country, Two Systems” principle to be practised in the HKSAR. Thus, the basic principles and policies regarding Hong Kong were translated into a national law with general binding effect, forming the basis for the operation of the HKSAR and for compliance by people all over the country” (Tam, 2012, pp. 23-24).  “The enactment of the HKSAR Basic Law marked the completion of the transformation of ‘One Country, Two Systems’ from a concept into a basic policy, and finally a national law” (Tam, 2012, p. 24). 27 According to Professor Albert Chen, because China is a unitary system and not a federal system:  “there is nothing in the national constitution which provides for a formal division of power between the national government and the provincial, municipal, and SAR governments.  “There is no constitutional (as distinguished from legal) limitation on the capacity of the national government to exercise power with regard to any matter within any province, city, or SAR of the PRC” (2021, p. 66). 28  He further argues that from “a legal perspective, the basis of the HKSAR’s autonomy under OCTS [One Country, Two Systems] is the Basic Law of the HKSAR, which is a law enacted in 1990 by the national legislature, the National People’s Congress (NPC), in pursuance of article 31 of the PRC Constitution and the Sino-British Joint Declaration” (Chen, 2021, p. 67).  The Basic Law is the constitutional document for the HKSAR. It enshrines within a legal document the important concepts of “One Country, Two Systems”, “a high degree of autonomy” and “Hong Kong People administering Hong Kong” (Some Facts about the Basic Law, HKSARG, 2021). 29  In general, the Basic Law performs five functions (Chen, 2021, p. 67): 1. “provides for the modes of formation and operation of the government of the SAR,” 2. “identifies the sources of law in the SAR,” 3. “guarantees the human rights of its residents,” 4. “stipulates the social and economic systems and policies to be practiced in the SAR,” 5. “defines its relationship with the Central Government and the scope of its autonomous powers”. 30 31 One Country (Some important Articles in the BL: The list below is not exhaustive. Please refer to the Basic Law for more details):  Article 1: The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China.  Article 2: The National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law.  Article 12: The Hong Kong Special Administrative Region shall be a local administrative region of the People’s Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People’s Government.  Article 158 (1st paragraph): The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress.  Article 159 (1st paragraph): The power of amendment of this Law shall be vested in the National People’s Congress. 32 One Country (Some important Articles in the BL: The list below is not exhaustive. Please refer to the Basic Law for more details) (cont’d): 33 Elements of the Basic Law which demonstrate Two Systems and a high degree of autonomy (according to Professor Albert Chen, 2021, pp. 67- 68)  “More than 95 percent of the laws enacted by the national legislature (the NPC and NPCSC) are not applicable to the HKSAR, in which the pre-existing common law system is preserved.”  The only national laws that apply to Hong Kong are listed in Annex III to the Basic Law. There are 14 such laws at the moment, including the Nationality Law, National Flag Law, National Anthem Law, Law on the Territorial Sea, Law on the Garrisoning of the HKSAR, Law on Safeguarding National Security in the HKSAR, etc.” 34 Elements of the Basic Law which demonstrate Two Systems and a high degree of autonomy (according to Professor Albert Chen, 2021, pp. 67-68)  “Cases litigated before the Hong Kong courts are dealt with entirely within the Hong Kong court system, with Hong Kong Court of Final Appeal (CFA) being the highest appellate court. No appeal lies from a Hong Kong court to any court or institution in mainland China.”  “The Basic Law requires the CFA to refer relevant provisions of the Basic Law to the NPCSC for interpretation in certain circumstances. However, interpretations made by the NPCSC cannot have the effect of overturning a court judgment previously rendered, in the sense that litigants in the case that the court has already decided would not be affected by a subsequent NPCSC interpretation.” 35 Two Systems and a high degree of autonomy (Chen, 2021, pp. 67-68) (cont’d)  “Hong Kong residents do not have to pay any tax to the Central Government, and the tax which they pay to the HKSAR Government will be used for the HKSAR exclusively – no part of it has to be handed over to the Central Government.”  “The HKSAR can continue to have and issue its own currency, the Hong Kong dollar.”  “The HKSAR can control and regulate entry and exit of persons into and out of the HKSAR.”  “The HKSAR is a customs territory (關稅區) separate from other parts of China.”  “The HKSAR, using the name ‘Hong Kong, China’, can enter into economic and cultural relations with other countries and participate in some international organisations (such as the World Trade Organization or WTO) whose membership is not restricted to sovereign states. The Basic Law authorises the HKSAR Government to handle certain ‘external affairs’ even though, generally speaking, ‘foreign affairs’ are within the power of the Central Government.” 36  Accordingly, Professor Chen (2021) concludes that the “degree of autonomy which the HKSAR has enjoyed since 1997 is certainly not less than what it had under British colonial rule. Indeed, whereas Hong Kong’s autonomy in the colonial era was largely a product of unwritten practices and constitutional conventions, the HKSAR’s autonomy in many domains is now expressly guaranteed by the Basic Law. This, then, is the strength of the OCTS model of autonomy” (p. 69). 37 Hong Kong people administering Hong Kong (Some important Articles in the BL: The list below is not exhaustive. Please refer to the Basic Law for more details):  Article 22 (1st to 3rd paragraphs): 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. If there is a need for departments of the Central Government, or for provinces, autonomous regions, or municipalities directly under the Central Government to set up offices in the Hong Kong Special Administrative Region, they must obtain the consent of the government of the Region and the approval of the Central People’s Government. All offices set up in the Hong Kong Special Administrative Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region. 38 Hong Kong people administering Hong Kong (cont’d)  Article 44: The Chief Executive of the Hong Kong Special Administrative Region shall be: ▪ a Chinese citizen of not less than 40 years of age ▪ who is a permanent resident of the Region ▪ with no right of abode in any foreign country and ▪ has ordinarily resided in Hong Kong for a continuous period of not less than 20 years.  Article 55 (2nd paragraph): Members of the Executive Council of the Hong Kong Special Administrative Region shall be: ▪ Chinese citizens who are permanent residents of the Region with no right of abode in any foreign country. 39 Hong Kong people administering Hong Kong (cont’d)  Article 67: The Legislative Council of the Hong Kong Special Administrative Region ▪ shall be composed of Chinese citizens who are permanent residents of the Region with no right of abode in any foreign country. ▪ However, permanent residents of the Region who are not of Chinese nationality or who have the right of abode in foreign countries may also be elected members of the Legislative Council of the Region, provided that the proportion of such members does not exceed 20 percent of the total membership of the Council.  Article 71 (2nd paragraph): The President of the Legislative Council of the Hong Kong Special Administrative Region shall be: ▪ a Chinese citizen of not less than 40 years of age, ▪ who is a permanent resident of the Region ▪ with no right of abode in any foreign country and ▪ has ordinarily resided in Hong Kong for a continuous period of not less than 20 years. 40 National Security and the Basic Law (Some important Articles in the BL: The list below is not exhaustive. Please refer to the Basic Law for more details):  Preamble (in 2nd paragraph): Upholding national unity and territorial integrity, maintaining the prosperity and stability of Hong Kong, and taking account of its history and realities, the People’s Republic of China has decided that upon China’s resumption of the exercise of sovereignty over Hong Kong, a Hong Kong Special Administrative Region will be established in accordance with the provisions of Article 31 of the Constitution of the People’s Republic of China, and that under the principle of “one country, two systems”, the socialist system and policies will not be practised in Hong Kong.  Article 13: The Central People’s Government shall be responsible for the foreign affairs relating to the Hong Kong Special Administrative Region. The Ministry of Foreign Affairs of the People’s Republic of China shall establish an office in Hong Kong to deal with foreign affairs. The Central People’s Government authorizes the Hong Kong Special Administrative Region to conduct relevant external affairs on its own in accordance with this Law.  Article 14 (1st paragraph): The Central People’s Government shall be responsible for the defence of the Hong Kong Special Administrative Region. 41 National Security and the Basic Law (cont’d)  Article 18 (4th paragraph): In the event that the Standing Committee of the National People’s Congress decides to declare a state of war or, by reason of turmoil within the Hong Kong Special Administrative Region which endangers national unity or security and is beyond the control of the government of the Region, decides that the Region is in a state of emergency, the Central People’s Government may issue an order applying the relevant national laws in the Region.  Article 23: The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.  Annex III: Law on Safeguarding National Security in the HKSAR 42  Modern states can be broadly classified into unitary states and federal states.  China is a unitary state. Article 31 of the Chinese Constitution provides the constitutional basis for the enactment of the Basic Law.  The three important concepts of the Basic Law are “One Country, Two Systems”, “a high degree of autonomy” and “Hong Kong People administering Hong Kong”. 43  Chen, A. H. Y. (2021). The changing legal orders in Hong Kong and Mainland China: Essays on “One Country, Two Systems”. City University of Hong Kong  Cheung, A. B. L., & Wong, P. C. W. (2004). Who advised the Hong Kong government? The politics of absorption before and after 1997. Asian Survey, 44(6), 874-894.  Education Bureau, HKSARG (2020). 《中華人民共和國憲法》教學資源. https://www.edb.gov.hk/attachment/tc/curriculum-development/kla/pshe/basic- law-education/constitution_chi/Constitution_Chi.pdf  Heywood, A. (2019). Politics. 5th Edition. Red Globe Press.  HKSARG (2021). Some Facts about the Basic Law. https://www.basiclaw.gov.hk/en/basiclaw/facts.html  Lam, K. C. Y. (2018). Consultative politics refined: The precarious development of civic engagement in post-colonial Hong Kong. In T. L. Lui, S. Chiu, & R. Yep (Eds.). Routledge handbook of contemporary Hong Kong (pp. 123-138). Routledge.  Tam, M. W. C. (2012). The Basic Law and Hong Kong: The 15th Anniversary of Reunification with the Motherland. The Working Group on Overseas Community of the Basic Law Promotion Steering Committee. 44