China’s power to interpret, change and supplement Hong Kong laws is supreme

Shiu Sin Por says not only is the constitutional framework for Hong Kong derived from both the Basic Law and the Chinese constitution, but the authority of the National People’s Congress must also be recognised and respected

PUBLISHED : Tuesday, 14 August, 2018, 2:00am
UPDATED : Tuesday, 14 August, 2018, 6:28am

The Sino-British Joint Declaration, on the negotiated settlement of the question of Hong Kong, was named a “declaration” and not an “agreement” for a reason. Yet the significance of this fact escaped many in those days. The same is true even today.

A week ago in this paper, Professor Johannes Chan and Wing Kay Po of the Hong Kong Bar Council asserted that “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”.

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It is more than that. When pressed on the issue last year, an official from the Ministry of Foreign Affairs labelled the Joint Declaration “a historical document” that no longer has “any realistic meaning” today. He also asserted that the document has no binding power over the Chinese government in its policy over Hong Kong.

Who is right and who is wrong?

The Joint Declaration, signed in 1984 to prepare for the 1997 handover of Hong Kong, is a relatively simple document. There are only four substantial clauses in it. The first three are, briefly: Britain will hand Hong Kong back to China; China will take it back; and China declares that it will treat Hong Kong in such and such a way after taking it back.

Up to there, the two sides merely stated their own positions without reference to the other. Only the fourth clause related to an effort that involved both parties – that is, the setting up of a Joint Liaison Group to handle the transfer process. That was why the document is called a “declaration”, not an “agreement”.

It is clear from the nature of this document that China’s policy over Hong Kong after 1997 is not a joint effort between China and Britain. It is wholly China’s own decision, and its implementation is China’s own business.

The negotiation process is only a channel where the British got to clarify and give input into what the Chinese would do in Hong Kong after they handed it back to China, if they decided to hand it back.

The Joint Declaration is wholly irrelevant now because its content has been implemented. The implementation of Chinese policy over Hong Kong is China’s internal affair.

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The Joint Declaration did not give Britain any role in China’s implementation of its policy over Hong Kong. Britain can raise an issue if it believes China has reneged on its 14-point policy declaration. But, so far, it has not done so because China has kept its promises.

By the way, the introduction of universal suffrage in Hong Kong elections is not part of the 14 points.

The origin and basis of Hong Kong’s special treatment under Chinese rule is not the Sino-British Joint Declaration but the Chinese constitution and the Basic Law. This was made clear for the first time by the State Council in its white paper on the practice of “one country, two systems” in Hong Kong, issued in 2014.

Watch: What is the Basic Law of Hong Kong?

Is it true that only Article 31 of the Chinese constitution is applicable to Hong Kong? Many people are confused. It is obvious that many articles in the constitution concerning the national system are applicable and relevant to Hong Kong.

In fact, the Basic Law has a clear clause related to this issue. Article 11 states that “in accordance with Article 31 of the Constitution of the People’s Republic of China, the systems and policies practised in the Hong Kong special administrative region, including the social and economic systems, the system for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and judicial systems, and the relevant policies, shall be based on the provisions of this law”.

The correct understanding, therefore, should be: other than what is specified in Article 11 of the Basic Law, the rest of the Chinese constitution is applicable and relevant to Hong Kong.

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There are three things the National People’s Congress can do to the Basic Law and Hong Kong. It can interpret it, that is, further explain an article in context; amend it; and supplement it with resolutions without changing the law.

The power to interpret the Basic Law and the procedure to make amendments are provided for in the Basic Law, while the power to make resolutions concerning Hong Kong is not. Does this make such actions of the NPC irrelevant and without legal effect in Hong Kong? Surely not.

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The NPC is similar in nature to the British Parliament. It is supreme. Its resolutions on Hong Kong have to be obeyed by all. In no way does Article 31 circumscribe the power of the NPC.

The NPC’s decision on the co-location arrangement for immigration procedures for the cross-border rail link affirmed that the agreement between Hong Kong and Guangdong is consistent with the “one country, two systems” policy and the Basic Law. This is a binding opinion on Hong Kong. It has the same binding effect as a resolution by Parliament in Britain.

There have been attempts to limit the power of the Chinese government in Hong Kong affairs. But such efforts are just based on wishful thinking. The persistent and wilful misinterpretation of “one country, two systems” and the city’s “high degree of autonomy” to mean that the central government’s authority in Hong Kong is limited only to defence and foreign affairs is an example.

This is certainly incorrect as Beijing, under the Basic Law, also has the power to appoint the chief executive and principal officials, issue directives to the Hong Kong government and vet laws passed by the legislature.

The Basic Law is not pre-eminent in Hong Kong. The NPC is. The Basic Law and the Chinese constitution together – not just the Basic Law alone – form the constitutional framework for the Hong Kong SAR. The Sino-British Joint Declaration has nothing to do with it.

Shiu Sin Por is executive director of the New Paradigm Foundation