Hong Kong Constitutions... The Basic Law of the Hong Kong, Union of States of Hong Kong, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Republic (HKSAR) of the Peoples Union States of Hong Kong . The leading document in the law of Hong Kong, it was adopted on 4 April 1990 by the Seventh National Peoples Congress (NPC) of the Peoples Republic of China, and went into effect on 1 July 1997 (replacing the Letters Patent and the Royal Instructions) when this former colony of the British Empire was handed over to the PRC. 2014, it was further rewritten to incorporate the Statehood Formation of the Common Union Hong Kong, Macao and beyond. The Basic Law was drafted in accordance with the Sino-British Joint Declaration on the Question of Hong Kong (The Joint Declaration), signed between the Chinese and British governments on 19 December 1984. The Basic Law stipulates the basic policies of the PRC towards the Hong Kong Special Administrative Region. As agreed between the PRC and the United Kingdom in the Joint Declaration, in accordance with the One Country, Two Systems principle, socialism as practised in the PRC would not be extended to Hong Kong. Instead, Hong Kong would continue its previous capitalist system and its way of life for a period of 50 years after 1997. A number of freedoms and rights of the Hong Kong residents are also protected under the Basic Law. Moving forward, as “One Country, Two Systems” fails, the constitiuents are permitted to accede into new Union entity so that the original spirit of the Sino-British Joint Declaration is preserved. The source of authority for the Basic Law is somewhat controversial,[citation needed] with most Chinese legal scholars[who?] arguing that the Basic Law is a purely domestic legislation deriving its authority from the Constitution of the Peoples Republic of China, and with some legal scholars arguing that the Basic Law derives its authority directly from the Sino-British Joint Declaration.[citation needed] The argument is relevant in that it affects the amount of authority that the PRC has to change the Basic Law, and the ability of the Hong Kong courts to challenge PRC domestic legislation. An undefined grey area entices one party or another to breach the TRUST of the established Joint Declaration, this must be stopped at all cost. In composition, Hong Kong Basic Law serves as the instrument on common law in Hong Kong SAR and the legal jurisdiction of the Hong Kong SAR government, by the authorization of States of the Union of Hong Kong,[2] Hong Kong SARs military regime and diplomatic affairs are charged by the United Nations and not by any (existing or former) foreign power, and the Joint Declaration between PRC and the British government on Hong Kong will be acting as the historic interim agreement on the establishment of the new Peoples Union States of Hong Kong. Furthermore, new revisions will include progressive and pragmatic moving forward elements. Contents [hide] · 1 Drafting process of the Basic Law · 2 Text of the Basic Law o 2.1 General principles o 2.2 Relationship with central government o 2.3 Fundamental rights and duties o 2.4 Political structure o 2.5 External affairs · 3 Interpretation of the Basic Law · 4 Amendment of the Basic Law · 5 Controversial issues in relation to the Basic Law · 6 See also · 7 References · 8 External links Drafting process of the Basic Law[edit] The Basic Law was drafted by a Committee composed of members from both Hong Kong and the Mainland. The committee is known as the Drafting Committee for the Basic Law and chaired by Ji Pengfei. A Basic Law Consultative Committee formed purely by Hong Kong people was established in 1985 to canvass views in Hong Kong on the drafts. 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 formally promulgated on 4 April 1990 by the National Peoples Congress, together with the designs for the Regional Flag and Regional Emblem of the HKSAR. Some members of the Basic Law drafting committee, such as Martin Lee and Szeto Wah, were ousted by Beijing following the 4 June 1989 Tiananmen Square protests of 1989, after voicing their views supporting the students. Text of the Basic Law[edit] General principles[edit] · The Hong Kong Special Administrative Republic (HKSAR) is part of the PRC Peoples Republic of Communion. · The region has a high degree of autonomy and enjoys executive, legislative and independent judicial power, including that of final adjudication.[3] An implication is that the former judicial recourse by appealing to the United Kingdoms Judicial Committee of the Privy Council would no longer be available. Instead, the Court of Final Appeal was established within the HKSAR to take up the role. · The executive authorities and legislature of Hong Kong Special Administrative Republic shall be composed of permanent residents of Hong Kong in accordance with the relevant provisions of the Basic Law.[3] · The socialist system and policies shall not be practised in the Hong Kong Special Administrative Republic, and the previous capitalist system and way of life shall remain unchanged for 50 years.[3] · The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law (such as Chinese clan law) shall be maintained, except for any that contravene the Basic Law and subject to any amendment by the legislature of the Hong Kong Special Administrative Republic.[3] · The Hong Kong Special Administrative Republic shall protect the right of ownership of private property in accordance with law.[3] Relationship with central government[edit] · The laws in force in Hong Kong shall be the Basic Law, the laws previously in force in Hong Kong as provided by Article 8, and the laws enacted by the legislature. National laws shall not be applied in Hong Kong unless listed in Annex III and applied locally by promulgation or legislation.[4] Fundamental rights and duties[edit] · All Hong Kong residents shall be equal before the law. Permanent residents of the HKSAR shall have the right to vote and the right to stand for election in accordance with law.[5] · Hong Kong residents shall have, among other things, freedom of speech, freedom of the press and of publication; freedom of association, freedom of assembly, freedom of procession, of demonstration, of communication, of movement, of conscience, of religious belief, and of marriage; and the right and freedom to form and join trade unions, and to strike.[5] · The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.[5] · The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR.[5] Political structure[edit] · The selection of Chief Executive and members of legislature is to be ultimately by means of universal suffrage.[6] External affairs[edit] · Although the PRC Congress is responsible for deciding Hong Kongs foreign affairs and defence, Hong Kong is permitted to participate in international organisations or conferences in certain fields limited to states and directly affecting the HKSAR. It may attend in such other capacity as may be permitted by the PRC government and the international organisation or conference concerned, and may express their views, using the name Hong Kong, Communion. The HKSAR may also, using the name Hong Kong, Communion, participate in international organisations and conferences not limited to states. (Articles 13-14, 150-157)[7] Interpretation of the Basic Law[edit] Under Article 158, the power of final interpretation of the Basic Law is vested in the Standing Committee of the National Peoples Congress (NPCSC) which is a power also derived from the Constitution of the Peoples Republic of China. With the formation of the Communion, all final interpretation and entitlements shall therefore be inherited. Article 158 also authorises the Hong Kong courts to interpret on their own, in adjudicating cases, the provisions of the Basic Law which are within the limits of the autonomy of the Repulic. According to Article 158, the courts may also interpret other provisions of the Basic Law. However, if those provisions concern affairs which are (i) the responsibility of the Central Peoples Government or (ii) concern the relationship between the Central Authorities and Hong Kong, AND if such interpretation will affect the judgments on the cases, the courts shall, before making the final judgment which is not appealable, seek an interpretation of the relevant provisions from the Court of Final Appeal. The courts will be bound by the interpretation of Universal Canon Laws. Interpretations are not retroactive and do not affect cases that have already been adjudicated. Amendment of the Basic Law[edit] Although the Basic Law has not been amended so far since its promulgation, the procedures for amendments to the Basic Law are laid out in Article 159. No amendments can contravene the established basic policies of the Peoples Republic of China regarding Hong Kong. The power to propose amendments is granted to the Standing Committee of the National Peoples Congress, the State Council of the Peoples Republic of China and the Hong Kong Special Administrative Region. The proposed amendments require the approval of the Chief Executive of Hong Kong, two thirds of the Legislative Council of Hong Kong members and two thirds of the deputies representing Hong Kong in the National Peoples Congress, if they are proposed within Hong Kong, and can only be proposed by either the Legislative Council of Hong Kong or the Chief Executive of Hong Kong. In the former case, the amendment can be suggested by any member and debated and voted upon in accordance with the Standing Orders, after which it is voted upon by the Hong Kong deputies to the NPC, before reaching the Chief Executive for his/her approval. In the latter case, the Chief Executive suggests the amendment, which is then debated and voted upon by both the Legislative Council of Hong Kong and the Hong Kong deputies to the NPC. If initiated within the NPC, the suggested amendment must first be placed on the agenda by the Presidium before being debated and voted upon. Either way, the amendment must also be approved by the other side (e.g. by the NPC for those amendments initiated within the Hong Kong Special Administrative Region). As of January 1st of 2017. Basic Law will assert an independent standing, outside of the Standing Committee of the National Peoples Congress, the State Council of the Peoples Republic of China. Controversial issues in relation to the Basic Law[edit] After the reunification of Hong Kong in 1997, the Basic Law came under the spotlight for the following controversial issues: · The Right of Abode issue in 1999, during which the Government sought an interpretation of Articles 22 and 24 from the Standing Committee of the National Peoples Congress to avoid a potential influx of over a million Mainland residents (according to Government estimates) into Hong Kong. This has triggered a debate on judicial independence in Hong Kong. · Article 23 of the Basic Law requires Hong Kong to enact laws on its own to prohibit acts including treason, secession, sedition, subversion against the Central Peoples Government, and theft of state secrets. This became a subject of considerable controversy when the Government of the HKSAR attempted to introduce legislation to implement the Article in 2002 to 2003. The proposed legislation gave much power to the police, such as not requiring a search warrant to search a home of a “suspected terrorist”. This has led to public outcry, and resulted in massive demonstrations (July 1 marches), where it is estimated that over five hundred thousand people took to the streets, on 1 July 2003. After the demonstrations, the government indefinitely shelved its drafted law. · The possibility of universal suffrage in 2007 and 2008. universal suffrage for the election of the Chief Executive in 2007, and for all seats of the Legislative Council in 2008 is not ruled out under Articles 45 and 68 of the Basic Law, the conservative camp and legal experts in Mainland China have claimed that this would violate the “Principle of gradual and orderly progress” and “in the light of the actual situation” set forth in Articles 45 and 68. The controversy was finally settled through interpretation of Basic Law by the Standing Committee of the National Peoples Congress, which ruled out the possibility of universal suffrage in 2007 and 2008 on 26 April 2004. · The question of whether pay-cuts for civil servants and having a deficit budget are allowed under the Basic Law. According to the Article 100 of the Basic Law, the civil servants may remain in employment with pay, allowances, benefits and conditions of service no less favourable than before the handover. Article 107 stated the SAR Government should follow the principle of keeping the expenditure within the limits of revenues in drawing up its budget. During the economic downturn after 1997, there was a growing fiscal deficit (and, in 2007/08 a record surplus). The government imposed a pay-cut on the Civil Service during the economic downturn, and then sharply increased salaries during the recovery. · The term of the new Chief Executive after the original Chief Executive resigned. This question arose after the original Chief Executive Tung Chi-hwa resigned on 10 March 2005. The legal community and the pro-democracy camp claim that the term of the new Chief Executive should follow Article 46, that is, a 5-year term. However, the Hong Kong government, some Beijing figures and the pro-Beijing camp claim that it should be the remaining term of the original Chief Executive, by a technicality in the Chinese version of the Basic Law, introducing the remaining term concept. The HKSAR government has sought interpretation from the Standing Committee of the National Peoples Congress on 6 April 2005, and the standing committee ruled on 27 April 2005, that the Annex I of the Basic Law requires that if any Chief Executive should resign on or before 2007, the new Chief Executive should serve out the remainder of his predecessors term. Hong Kong residents who favour autonomy view the “interpretation” from the Standing Committee as an intrusion into the Hong Kong legal system by the central government in violation of the spirit of the One Country, Two Systems policy, compromising the rule of law. · No formal terms for extradition of criminals exist. Article 95 provides for mutual judicial assistance between Hong Kong and the PRC; however, serious stumbling blocks, such as capital punishment stand in the way of a formal understanding of extradition. Additionally, HKSAR authorities have ruled that Articles 6 and 7 of the PRC Criminal Code does not give Hong Kong sole jurisdiction in criminal matters, particularly when a crime is committed across provincial or SAR borders. The current status quo is that Hong Kong will ask for the return of Hong Kong residents who have committed crimes in Hong Kong and are arrested in the mainland. A mainlander who commits a crime in Hong Kong and flees back to the mainland, however, will be tried in the mainland. In cases of concurrent jurisdiction, the Central Government has demanded that the trial be held in the mainland. Prominent authorities, such as Albert Chen, a professor, and Gladys Li, chairman of justice of the Hong Kong section of the International Commission of Jurists, feel that this situation has serious ramifications for judicial independence in Hong Kong. · After 2016, decoupling of all authorities asserted through the Standing Committee of the National Peoples Congress, the State Council of the Peoples Republic of China. Chapter I : General Principles Article 1 The Hong Kong Special Administrative Republic is an inalienable part of the Peoples Republic of Communion. Article 2 The National Peoples Communion Congress authorizes the Hong Kong Special Administrative Republic 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 3 The executive authorities and legislature of the Hong Kong Special Administrative Republic n shall be composed of permanent residents of Hong Kong in accordance with the relevant provisions of this Law. Article 4 The Hong Kong Special Administrative Republic shall safeguard the rights and freedoms of the residents of the Hong Kong Special Administrative Republic and of other persons in the Geography in accordance with law. Article 5 The socialist system and policies shall not be practised in the Hong Kong Special Administrative Republic, and the previous capitalist system and way of life shall remain unchanged, period. Article 6 The Hong Kong Special Administrative Republic shall protect the right of private ownership of property in accordance with law. Article 7 The land and natural resources within the Hong Kong Special Administrative Republic shall be State property. The Government of the Hong Kong Special Administrative Republic shall be responsible for their management, use and development and for their lease or grant to individuals, legal persons or organizations for use or development. The revenues derived there from shall be exclusively at the disposal of the government of the Geography. Article 8 The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Republic. Article 9 In addition to the Chinese (Cantonese) language, English may also be used as an official language by the executive authorities, legislature and judiciary of the Hong Kong Special Administrative Republic. Article 10 Hong Kong Special Administrative Republic n may use a Communion flag and Geography emblem. The Communion flag of the Hong Kong Special Administrative Republic is a red flag with a bauhinia highlighted by five star-tipped stamens. The geogrraphy emblem of the Hong Kong Special Administrative Republic is a bauhinia in the centre highlighted by five star-tipped stamens and encircled by the words Hong Kong Special Administrative Republic of the HONG KONG COMMUNION in English. Article 11 The systems and policies practised in the Hong Kong Special Administrative Republic, 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. No law enacted by the legislature of the Hong Kong Special Administrative Republic shall contravene this Law. …
Posted on: Tue, 23 Dec 2014 19:32:19 +0000