How China’s constitution ensured that the Basic Law remains pre-eminent in Hong Kong

Johannes Chan and Wing Kay Po say the setting up of Hong Kong as a special administrative region under Article 31 of China’s constitution and the statements of officials at the time make it clear that in the territory, the Basic Law holds sway

Hong Kong Basic Law

Johannes ChanandWing Kay Po

Published: 6:00am, 6 Aug 2018

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In recent years, there seems to be a tendency for mainland Chinese officials to omit or avoid references to the Sino-British Joint Declaration in any discussion about “one country, two systems”, as if the Joint Declaration were non-existent or wholly irrelevant. It is an undeniable historical fact that for about 150 years between 1842 and 1997, Hong Kong was under British jurisdiction. The British government introduced to Hong Kong, among other things, the common law system and a free capitalist economy. By the end of the last century, Hong Kong enjoyed a legal, social, political and economic system and lifestyle that were quite different from that on the mainland.

It was precisely because of this historical fact that the British and the Chinese governments entered into what turned out to be two years of negotiation on the future of Hong Kong in 1982, resulting in the signing of the Joint Declaration in 1984. Under the Joint Declaration, the British government relinquished any sovereignty claim over Hong Kong in 1997, in return for a promise from the Chinese government to preserve the previous systems and lifestyle in Hong Kong and not to apply the socialist system and policies of the mainland to Hong Kong after its resumption of sovereignty over Hong Kong.

The basic policies governing Hong Kong after 1997 were set out in detail in clause 3 of the Joint Declaration; these were further elaborated in 14 articles in Annex 1 of the Joint Declaration, which also provided that these basic policies will remain unchanged for 50 years. The Basic Law was then enacted to implement the Joint Declaration, and the basic policies stipulated in the Joint Declaration were enacted into the provisions of the Basic Law.

Lately, there have been suggestions that China’s constitution applies to Hong Kong, notwithstanding or because of the Basic Law. It is important to take into consideration the historical background of Hong Kong referred to above in any discussion about the relationship between China’s constitution and the Basic Law.

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It is true that the Basic Law was enacted pursuant to Article 31 of China’s constitution. Yet, it is equally true that in enacting the Basic Law, the Chinese government did not have an entirely free hand. The content of the Basic Law was largely dictated by the Joint Declaration; indeed, some provisions in the Basic Law reproduced almost verbatim the equivalent provisions in the Joint Declaration.

The most crucial promise in the Joint Declaration is that the socialist system and socialist policies practised on the mainland shall not apply to Hong Kong

The most crucial promise in the Joint Declaration is that the socialist system and socialist policies practised on the mainland shall not apply to Hong Kong. This promise is, in fact, inconsistent with China’s constitution, which stipulates the practice of socialism.

The way to get round this problem was to invoke Article 31 of China’s constitution, which authorises the state to establish special administrative regions where the system to be instituted in these regions shall be prescribed by law enacted by the National People’s Congress.

Accordingly, the preamble and the general principles set out in Chapter 1 of China’s constitution, most of which related to the socialist system and policies, are excluded from applying to Hong Kong, and this was achieved not by the Basic Law, but by Article 31 of China’s constitution. This was the reason the NPC has to adopt a specific and separate decision to state that the establishment of the Hong Kong special administrative region was pursuant to Article 31 of China’s constitution when it enacted the Basic Law.

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This view was also echoed by leading mainland scholars and senior mainland officials at that time, including Peng Zhen, the then chairman of the NPC standing committee. In a document which has recently been declassified by the UK Public Records Office, Peng Zhen stated categorically that: “Is the Basic Law in contradiction with the constitution? Which article of the constitution of the People’s Republic of China would be applicable? Article 31 provides that the National People’s Congress is empowered to establish special administrative regions. Apart from this, all the articles of the constitution are implemented in China, but for you [Hong Kong], only Article 31 is applicable. We pursue socialism in our country, but the Hong Kong SAR pursues capitalism and will maintain its capitalist system.”

British prime minister Margaret Thatcher and Chinese premier Zhao Ziyang sign the Sino-British Joint Declaration in December 1984. Photo: Sunny Lee

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China’s constitution comprises a preamble and four chapters. It is clear that the provisions in the preamble and Chapter 1 that refer to the insistence of a socialist system and “people’s democratic dictatorship” are not applicable to Hong Kong.

To the extent that a subject matter is governed by the Basic Law, China’s constitution does not apply to Hong Kong

Chapter 2 includes provisions on fundamental rights and obligations of China’s citizens. These provisions would not be applicable in Hong Kong as fundamental rights are protected by the Basic Law. Indeed, they would give rise to complications if they were to apply to Hong Kong, such as whether the Hong Kong courts have power to adjudicate upon these provisions. This does not seem to be the intention of the Basic Law.

The rest of China’s constitution prescribes the structure of the state organs such as the NPC, the president, the State Council, the military commission (Chapter 3), and national flag, national emblem, national anthem and capital (Chapter 4). Insofar as these provisions are about state organs and symbols, they are applicable to Hong Kong in the sense that these are the apparatus that governs the concept of “one country”, but only in that sense.

The powers of these state organs vis-à-vis Hong Kong are circumscribed by the Basic Law, by virtue of Article 31 of the constitution: the clear intention of this provision is to establish special administrative regions which will be governed by (and only by) laws enacted by the NPC to the exclusion of any contrary provisions in the constitution. Therefore, and to the extent that a subject matter is governed by the Basic Law, China’s constitution does not apply to Hong Kong. Again, the reason for its exclusion is not by virtue of the Basic Law, but by Article 31 of China’s constitution itself.

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Having said that, it is important to emphasise that the Basic Law is itself a piece of national law that binds equally the state organs, and no state organ can exercise its power contrary to the Basic Law. China does not assert that it has a power to act contrary to its own law.

The power of standing committee to interpret the Basic Law … is expressly provided for in the Basic Law and has to be accepted as constitutional

Finally, a word about the power of the NPC standing committee to interpret the Basic Law and decisions made by the body relating to Hong Kong. The power of standing committee to interpret the Basic Law is foreign to the common law system, but this power is expressly provided for in the Basic Law and has to be accepted as constitutional.

It is not as clear, though arguable, that decisions of the standing committee that were made pursuant to its interpretation of provisions of the Basic Law, such as those relating to the introduction of universal suffrage in Hong Kong, were authorised by the Basic Law and hence constitutional.

Other decisions of the standing committee, such as the recent decision on co-location, that have no bearing on any interpretation of the Basic Law are of no relevance to, and indeed have no legal effect in, Hong Kong, as they are excluded from applying to Hong Kong by virtue of Article 31 of China’s constitution (unless they are related to foreign affairs and defence), let alone when such decisions are contrary to the express provisions of the Basic Law.

Professor Johannes Chan SC (Hon) and Wing Kay Po are members of the Bar Council and respectively the vice-chairman and chairman of the Bar’s Special Committee on Constitutional Affairs and Human Rights

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