Hong Kong Basic Law

Hong Kong people must understand the limits of their autonomy as a Chinese special administrative region

Alan Hoo says persistent opposition to NPC interpretations of the Basic Law – a national law – stems from mistaken ideas about the parameters of Hong Kong’s autonomy

PUBLISHED : Monday, 23 January, 2017, 5:35pm
UPDATED : Monday, 23 January, 2017, 8:49pm

On November 7, the Standing Committee of the National People’s Congress issued an interpretation of Article 104 of the Basic Law. This article deals with the legal requirements for the oath of allegiance, which in any country is a matter of sovereign authority and responsibility. However, the interpretation was condemned by some sectors of the community as undermining the rule of law in Hong Kong.

It should be noted that the interpretation was triggered by the decision of the Legislative Council president in respect of invalidated oaths, and would have been made even without court proceedings. In refusing the two disqualified legislators’ leave to appeal, the Court of Appeal, in its judgment, pronounced that the authority of the NPC Standing Committee to interpret the Basic Law is “fully acknowledged and respected”, and that such an interpretation is binding on the courts. “This is the effect of the Basic Law implementing the ‘one country, two systems’ principle ... Both systems being within one country, the Standing Committee’s interpretation made in conformity with Article 158 under a different system is binding in and part of the system” in Hong Kong.

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NPC interpretations have persistently been characterised by pan-democrats as the mythical floods and monsters, attacking the fabric of Hong Kong’s autonomy. In this regard, there has been a complete misunderstanding of the limits of our autonomy and Beijing’s role in safeguarding its promise of “one country, two systems” contained in the Joint Declaration and promulgated under the Basic Law. The basis of the Joint Declaration is to guarantee that “the socialist system and policies shall not be practised in the Hong Kong special administrative region, and the previous capitalist system and way of life shall remain unchanged for 50 years”. This serves to guarantee Hong Kong’s “prosperity and stability”.

The strife with Beijing only serves to alienate Hong Kong from its own country

To avoid conflict and argument over whether the “previous capitalist system” was being maintained or eroded, “basic policies” were spelt out in the Joint Declaration to define the separate system in Hong Kong. These are the constituent building blocks of the “previous capitalist system” (the judicial system, economic and financial system, social and taxation system, transport system, for example), and were colloquially known as “a 1984 snapshot of Hong Kong”.

The Joint Declaration pledged that all these policies would be “stipulated in a Basic Law” to be passed by the NPC. Therefore, all the provisions of the Joint Declaration are justiciable under this mini constitution. In 1989, the final draft of the Basic Law was tabled and unanimously endorsed by the UK Parliament to be a true and accurate embodiment of all the basic policies in the Joint Declaration. Consequently, the NPC promulgated the final draft into the Basic Law on April 4, 1990.

A large number of important issues could not be considered and agreed in 1984 when the Joint Declaration was signed, or in 1990 when the Basic Law was promulgated. The work of the Joint Liaison Group continued right up to 2000 to supplement the basic policies. For example, the important issues of who has right of abode in Hong Kong was only agreed by the group in 1996 and implemented through local Hong Kong legislation in 1997. This was very important as it does not allow masses of mainland Chinese citizens to have a right of abode in Hong Kong post handover, unlike UK citizens during the colonial era.

Why Beijing saw fit to interpret Hong Kong’s Basic Law

Obviously, the provisions in the Basic Law(Articles 22 and 24) concerning right of abode that was promulgated in 1990 did not contain the 1996 agreement reached by the Joint Liaison Group. However, in the well-known case of Ng Ka-ling, the Court of Final Appeal refused to accept and follow the 1996 agreement that had laid down the proper scope of the right of abode principle and the legislative intent behind it. This led to a large number of mainlanders gaining right of abode in Hong Kong, which is wholly contrary to the Joint Liaison Group agreement and the true legislative intent behind the relevant articles of the Basic Law.

The Basic Law is a national law and has force over the whole country. It is not a local law passed by the Hong Kong legislature, to be interpreted by the Hong Kong courts

On May 18, 1999, the chief executive requested an interpretation of the relevant Basic Law articles to establish the true legislative intent. The NPC Standing Committee issued an interpretation in accordance with the 1996 agreement and this serves as a cogent example of how the interpretation safeguarded the proper implementation of the Basic Law.

Yet, opposition groups in Hong Kong and certain members of the community deliberately distort and maliciously condemn the interpretation as an attack on the rule of law and judicial independence. This is a calculated challenge to the NPC’s authority, a deliberate lie to the people, and itself the worst undermining of the rule of law.

Article 158 states clearly: “The power of interpretation of this law shall be vested in the Standing Committee of the National People’s Congress.” This is because the Basic Law is a national law and has force over the whole country. It is not a local law passed by the Hong Kong legislature, to be interpreted by the Hong Kong courts. Under Article 158, the NPC authorises the Hong Kong courts to interpret “provisions of this law which are within the limits of the autonomy of the region”. There was no delegation to Hong Kong courts to interpret provisions beyond Hong Kong’s autonomy.

Hong Kong courts have no jurisdiction “concerning affairs which are the responsibility of the central people’s government, or concerning the relationship between the central authorities and the region”, according to Article 158. All the basic polices set out in the Joint Declaration and enacted in the Basic Law are matters that define the original capitalist system and therefore prescribesthe relationship between the central authorities and the region. The basic policies underpin the promise by the central government to preserve Hong Kong’s original system and cannot be changed.

With its latest intervention in Hong Kong, Beijing wins the battle but is losing the war

“One country, two systems” has been internationally recognised as having been successfully implemented in Hong Kong. The way of life of Hong Kong people in terms of the freedoms enjoyed and the openness of our society have not only been maintained but further developed after the handover. However, some groups are waging a never-ending “crusade” against Beijing, claiming the people are oppressed. For opposition politicians, this war with, and relentless demonisation of, the central government has only served to justify their existence.

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By maintaining this course, not only will Hong Kong not be able to fully realise all the economic benefits by being part of the country, we also incur the indignation and wrath of the rest of the country. Furthermore, there is a danger that some in Hong Kong are being manipulated by foreign elements to destabilise China through Hong Kong. The strife with Beijing only serves to alienate Hong Kong from its own country.

The deliberate distortion of the true parameters of our autonomy and the malicious undermining of the bona fides of the central government in upholding “one country, two systems” are efforts to destroy the trust and national connection with our country. I do not believe this is what the people of Hong Kong want, nor is it what they deserve.

Alan Hoo is chairman of the Basic Law Institute