UNCLASSIFIED
certain English laws to Hong Kong was to maintain the colonial rule of the UK over Hong Kong.
9. The next section (131-165) is a discussion of the relationship between the Constitution of the PRC and the Basic Law. It relates the general superiority of the Constitution to all other laws including the Basic Law which must not contravene the Constitution. It argues that there is no necessary contradiction between the socialist principles enshrined in a constitution and the maintenance of the capitalist system in Hong Kong as this is specifically provided for in Article 31 of the Constitution (it also argues that there have been cases in the past where there were constitutional provisions that were not fully reflected in the actual practice in China. Thus in 1954, the Constitution specified ownership by the whole people etc, but in fact, there still existed regions inhabited by minority nationalities where there were systems of ownership by feudal landlords or even slaveholders. But this did not affect the socialist nature of the state. The relationship of the Basic Law to the Constitution is, in common with other basic laws in China that between derivative laws and their parent laws. The Constitution as a whole has force on the SAR but certain provisions in it, mainly those concerning the socialist system and policies are not to be the basis of the formulation of the Basic
Law.
10. Article 31 (141-143) is one of the crucial basis in that it provides for the establishment of Special Administrative Regions. But it would be incorrect to view it as the only legal basis for the Basic Law of the SAR. There are many other Articles of the Constitution which form the basis on which the Basic Law of the SAR was formulated (for example many of those Articles relating to the role of the Central State Structure, the NPC etc, in Hong Kong). Nor can the provisions of the Basic Law contravene the constitutional provisions for upholding sovereignty, unity and territorial integrity of the nations (this was one of the reasons for including Article 23 of the Basic Law which provided for the HKSAR to enact laws to prohibit acts of treason, secession, sedition or subversion).
11.
The book dismisses fears (147-157) that the provision for maintaining Hong Kong's laws basically unchanged might be in contravention of the constitutional provisions on upholding the socialist legal system on the grounds that since the Basic Law of the SAR is enacted in accordance with the Constitution its laws, including those previously in force should be regarded as being in conformity with the Constitution. It argues that the Constitution should be considered to apply to the SAR. This was an essential reflection of China's sovereignty. Secondly, in legal terms China's constitution is the fundamental law of the country with supreme legal effect and therefore must be applicable to the SAR and indeed the preamble of the Basic Law makes it clear that the law is enacted in accordance with the Constitution rather than only just Article 31. Thirdly, China is a unitary state and the application of the Constitution to the SAR is a manifestation of
7
UNCLASSIFIED
No comments yet.
Private notes are available after approval.