Hong Kong’s Basic Law may be a child of China’s constitution, but it has come of age

Cliff Buddle says the precise relationship between China’s constitution and Hong Kong’s de facto constitution can be debated in academic circles, but let’s not forget that the Basic Law exists to protect the Hong Kong system

Cliff Buddle

Published: 7:00am, 10 Dec 2018

Why you can trust SCMP

Three hundred Hong Kong schoolchildren gathered last week for a law lecture with a difference. The city’s leader also attended the class, along with ministers. The teacher was Shen Chunyao, a senior official from the Chinese government and his topic was the importance of China’s constitution.

The forum was organised to mark National Constitution Day. It was intended to further understanding of the constitution and its relationship with Hong Kong’s own de facto constitution, the Basic Law. Delivering a lecture on the law might not be the best way to win the hearts and minds of young people. But any attempt to educate, inform and to openly discuss important legal issues is welcome.

The forum, however, comes at a time when a long-standing debate about the application of China’s constitution to Hong Kong has been reignited.

Shen, chairman of the Basic Law Committee and the Legislative Affairs Commission of China’s top legislative body, the National People’s Congress Standing Committee, said the authority of China’s constitution extended to Hong Kong, and all Chinese people, including Hongkongers, should ensure its implementation.

Basic Law Committee chairman Shen Chunyao and vice-chairwoman Elsie Leung Oi-sie attend a seminar on the national constitution at the Hong Kong Convention and Exhibition Centre in Wan Chai, on December 4. Photo: Robert Ng

Why is Beijing undermining confidence in Hong Kong?

Last month, prominent Tsinghua University professor Wang Zhenmin argued in an academic article that the constitution should apply in Hong Kong and that the Basic Law supplemented and adapted it.

Shen described the constitution as having a mother-son or higher-lower relationship with the Basic Law.

In a sense, it might be said that the constitution gave birth to the Basic Law. Article 31 of the constitution provides for the state to establish special administrate regions. Crucially, those regions are to have systems established in a law to be passed by the National People’s Congress.

The Basic Law provides that Hong Kong is an inalienable part of China. But it also protects free speech and the right to stand in elections

This is the constitutional underpinning for Hong Kong’s Basic Law. The implication is that the systems which operate in special administrative regions will be different to those applying elsewhere in China. The systems to apply in Hong Kong, the first SAR, were set out in the Sino-British Joint Declaration in 1984, which provided for the city to return to China but for its way of life to remain unchanged for 50 years.

The Joint Declaration made it clear that the system which would operate in Hong Kong after the handover in 1997 would be very different to the one in mainland China. The city would maintain its capitalist system, rather than the socialist system provided for in the constitution. It would have a high degree of autonomy, an elected legislature, a common law legal system, and human rights would be protected. Hong Kong would control its own finances, have its own freely convertible currency, remain a free port and a separate customs territory. This is the essence of Hong Kong’s separate system.

The provisions were then included in the Basic Law, which was passed by the National People’s Congress in 1990. The Basic Law states that, in accordance with Article 31 of the constitution, “the socialist system and policies will not be practised in Hong Kong”. The systems and policies applied in Hong Kong are to be based on the provisions of the Basic Law, rather than those of the constitution.

Why China’s constitution does not apply to Hong Kong

It was evident when the Basic Law was drafted in the 1980s that it would necessarily conflict with key parts of the Chinese constitution, which provides for a socialist system in mainland China. Indeed, the whole point of the Basic Law is to ensure that the systems and policies applying in Hong Kong are different to those provided for in the constitution.

The question of how to reconcile the two documents was the subject of much debate at the time. It has been suggested that the Basic Law is effectively an amendment to the constitution. It was suggested that a committee be formed to resolve conflicts between the two laws. The debate seemed to have been brought to an end by a decision of the National People’s Congress, adopted on the same day the Basic Law was promulgated, which stated that the new law was “constitutional as it is enacted in accordance with the constitution of the People’s Republic of China”.

That decision did not resolve the conflicts. But it laid to rest any suggestion that those differences somehow made the Basic Law unconstitutional.

The debate has, however, been reignited following significant amendments to the constitution in March, expressly providing for the leadership role of the Communist Party, and a crackdown on Hong Kong’s independence movement.

China’s new constitution befits a nation on the rise

Shen said: “All Chinese people, including Hongkongers, and all state institutions have to safeguard the dignity of the constitution and ensure its implementation.” He added: “Any acts that jeopardise national sovereignty and security, and challenge the authority of the central government and the Basic Law, will be deemed to have touched the bottom line, and will absolutely not be tolerated.”

If the precise relationship between the constitution and the Basic Law remains a matter merely of academic debate, there is no reason why it should have an impact on the delicate relationship between Hong Kong and the central government. Reference to the importance of the constitution should not be used as a justification for eroding Hong Kong’s separate system under the Basic Law.

There is no reason why the Basic Law and the constitution, while conflicting, cannot coexist

Earlier this year, a Hong Kong NPC deputy expressed the view that politicians who call for an end to “one-party dictatorship” risked being banned from standing for election, because this is against the constitution. Meanwhile, lawmaker Eddie Chu Hoi-dick has been prevented from standing in rural polls on the extraordinarily weak grounds that he had implied he might possibly support self-determination for the city.

The Basic Law provides that Hong Kong is an inalienable part of China. But it also protects free speech and the right to stand in elections.

There is no reason why the Basic Law and the constitution, while conflicting, cannot coexist. The Basic Law might be the child of China’s constitution but it has now come of age. Twenty-one years have passed since it came into force.

There were certainly some teething problems in the early years and it might be said to have had a rebellious streak in its teens, with the Occupy protests and controversy over electoral reform. But on the whole, the Basic Law has stood the test of time. The survival of the “one country, two systems” concept depends on the Basic Law being allowed to do its job. It is Hong Kong’s “mini-constitution”, providing for the city to have a very different system to mainland China. The debate on its relationship with China’s constitution should not allow it to be undermined.

Cliff Buddle is the Post’s editor of special projects

Post