ABC OF THE BASIC LAW — 4
THE LEGAL ISSUES AT STAKE
by Jill Barrett
Direct elections to the Legislative Council and the development of representative government have assumed central importance in the debates on Hong Kong's future as a Special Administrative Region (SAR) under Chinese rule. However, the Basic Law Drafting Committee (BLDC) has also been grappling with the legal issues involved in drawing up Hong Kong's mini-constitution. Far from being technical concerns, of interest only to lawyers, many of these issues have as much political importance for the autonomy and stability of Hong Kong as the vexed issue of elections.
In earlier issues of of Hong Kong Link, we discussed some of the legal questions raised by the Basic Law as well as the implications of international covenants (See Hong Kong Link 2, 3 and 4). In this issue, beginning another series of 'ABC of the Basic Law', Jill Barrett updates commentary on two of the most fundamental questions regarding centre-local relations.
Will the Basic Law empower the authorities in Beijing to annul any law passed by the Hong Kong SAR legislature which Beijing deems to be contrary to China's interests?
Will the Hong Kong courts be able to declare null and void a local law passed in contravention of the rights and freedoms guaranteed in the Basic Law? Could they award compensation to a citizen who has suffered as a result of powers exercised under an invalid 'law'?
Will the Hong Kong courts be obliged to apply national Chinese laws in Hong Kong?
Could a Hong Kong citizen suspected of activity in Hong Kong that damages national security be compelled to go to Beijing to stand trial under the Chinese Criminal Code in the Supreme People's Court?
Many legal questions still need to be clarified. Parts of the draft Basic Law were issued by the BLDC in April 1987, and these give some guidance as to how some matters will be resolved. But many remain undecided, and the various proposals and options put forward by the Basic Law Consultative Committee (BLCC) are still being debated.
In this issue, I will examine two of the most fundamental issues: how the Chinese Constitution will be applied to Hong Kong, and whether national
Chinese laws will be applied in the territory after 1997.
Will the Chinese Constitution be applied to Hong Kong? In a previous article in this series (issue 2 of June 1986), Lo Chi Kin discussed the relationship between the national Constitution of China and the SAR Basic Law: will the Constitution apply to the whole 'country' or only to the socialist 'system'? Since that article was written, the BLDC appears to have taken the view that the Constitution is valid for the whole of China, including Hong Kong. This is a natural consequence of Hong Kong coming under the same sovereign authority as the rest of the PRC. It is also clear that the Basic Law will be a mini- constitution, subordinate to the national Constitution and of a lower legal status.
It is this subordinate status which worries many people in Hong Kong, since it might follow that any provision in the Basic Law which conflicts with the Constitution could be overridden or annulled. The Hong Kong Basic law will have the same legal status as Basic Statutes of the National Peoples Congress (NPC) such as the Organisation Laws of the State organs, the Criminal Code and the Criminal Procedure Code. These are superior to ordinary statutes but inferior to the Constitution.
The power to interpret both the Constitution and Statutes is vested in the Standing Committee of the NPC - not the courts, as it would be under a common law system. A glance through the Constitution reveals that the great majority of its provisions would be inappropriate to Hong Kong. For example:
Article 1: 'The People's Republic of China is a socialist state under the people's democratic dictatorship led by the working class and based on the alliance of workers and peasants.' Article 3. "...All administrative, judicial and prucuratorial organs of the state are created by the people's congresses to which they are responsible and under whose supervision they operate.' Article 6. "The basis of the socialist economic system of the PRC is socialist public ownership of the means of production..."
Article 22. The state promotes the development of literature and art, the
8
press, broadcasting and television undertakings...that serve the people and socialism...'
Article 25. 'the State promotes family planning so that population growth may fit the plan for economic and social development.'
Art. 127. "The Supreme People's Court is the highest judicial organ. The Supreme People's Court supervises the administration of justice by the local people's courts; people's courts at higher levels supervise the administration of justice by those at lower levels."
How can these provisions stand with the Basic Law which, according to Chapter 1, Article 1 of the Draft, will say: 'the socialist system and socialist policies shall not be practised in the Hong Kong SAR..."?
'Validity' and 'Applicability' The answer provided by the BLDC is to draw a distinction between the 'validity' and the 'applicability' of the Constitution. Although all of the Constitution is 'valid' throughout China, some parts of it will not be 'applied' in Hong Kong.
The NPC has the power under Article 31 of the Constitution not to apply parts of the Constitution in SARS. Article 31 states that 'the systems to be instituted in SARS shall be prescribed by law enacted by the NPC in the light of specific conditions.' The Chinese members of the BLDC regard this as a 'proviso' to the whole Constitution, so that if the NPC stipulates that the provisions concerning socialist policies shall not apply in Hong Kong, there cannot be any conflict between the Constitution and the Basic Law. In their view, there is no potential problem.
Hong Kong members of the BLDC were not so satisfied. It is easy to see why. Although the NPC is unlikely, having passed the Basic Law, then to decide that parts of it are invalid, a future NPC with different members and different policies might well revise its interpretation of the effects of Article 31. Secondly, Article 31 does not indicate which articles arc 'socialist' in character and therefore need not be applied, and which are national and therefore indispensable.
Some Hong Kong members of the BLDC take the view that only Article 31 should be applied to Hong Kong, while others concede the applicability
Page 60Page 61
No comments yet.
Private notes are available after approval.