TheHong Kong Basic Law
TheHong Kong Basic Law
TheHong Kong Basic Law refers to the guiding powers that govern allaspects of life in Hong Kong, from the administration, judiciary andlegal rights of the citizens. It can be considered young, as comparedto other countries’ constitutional documents like the United StatesConstitution, which are over 200 years while Hong Kong Basic Law arenot more than 20 years as they came to effective on 1st July 1997(Fu, Harris, & Young 2008). Although the laws are young, thatdoes not guarantee to ignore whatever happened before they startedoperating. Most current controversies are related to issues concernedwith what was going on during the drawing of the HK Basic Law likethe type of democracy to be effected and whom the right to interpretthe Law should be vested. The law was drafted between 1985 and 1990.For example, in 2003 around 500,000 protesters were on the streetprotecting against change national security by-laws as stipulated inArticle 23 of the HK Basic Law. Such actions can be traced back tothe drawing of the HK Basic Law as it banned participating in theprotest on 4th June 1989 (Fu et al., 2008).
Theexisting histories exhibit the rising of Hong Kong Basic Law in itsfinal stages as well calculated move. However, some of the provisionsappear to have landed on the document by luck due to the occurrenceof 4th June if they the document was concluded a year before theycould not be included. The incident started when the Britishcolonizer accepted to sign a 99-year lease which was ending 30th June1997 (Fu et al., 2008). Due to increased anxiety of what would happenwith the withdrawal of the British colonizer, China formulated asystem that would be followed but Taiwan rejected leading to thedevelopment of two systems, for Taiwan and Beijing. The strategy forBeijing was later developed to what is applied in Hong Kong.
Theintroduction of HK Basic Law started in 1984 with the Sino-Britishdeclaration, the agreement between Beijing and London on howdifferent systems would be applied in Hong Kong. Later, the treatyproduced the existing HK Basic Law, which was legislated by China’sNational People’s Congress. Although the Law takes long to beenacted, they are no doubt they are protecting Hong Kong’s interestin the best way possible as compared to the past. The Hong Kong BasicLaw is considered the most applicable laws in Hong Kong although theydo not override the 1982 popular China constitution (Fu et al.,2008). Since most provisions in the constitution are related to thesocialist structure, they have minimal applicability in Hong Kong,leaving a question of how the Constitution is active in Hong Kong andthe nature of the connection with the HK Basic Law.
TheHK Basic Law provides for the autonomy although nowhere is this modelis well elaborated. In Article 2, it states simply in everydayexpressions to Hong Kong enjoying executive, lawmaking and sovereignjudicial supremacy. That refers to three central powers thatworldwide authorities on independence have identified as essential toindependent majority provisions in different places in the universe,the right of every region to control its individual activities, makeits particular rules and judge its individual cases. Hong Kong enjoyssupremacies which are hardly guaranteed at local standards even inthe most stable sovereignty systems in another part of the worldalthough the three fundamental aspects are applicable according tohow China opts to apply them. Hong Kong Basic Law is given priorityon matters concerning the interpretation of executive powers inBeijing.
Theextent of self-control which China has implemented on these powers isdifferent. China’s restraint was most active right away after 1stJuly 1997 when the whole universe was focusing on Hong Kong. Later,more interfering approach took place on 1st July 2003 due to protestagainst national security laws (Fu et al., 2008). If Beijing opts toapply its powers in a manner that minimizes the degree of Hong Kong’sSovereignty, for example, in 2004 clarification of National People’sCongress Standing Committee stopping regulating of choices onwhichever alterations to the structure for nominating the LegislativeCouncil, then there is no legitimate procedure for Hong Kong tocontest this. That is the main limitations of the independence givento Hong Kong by the HK Basic Law. In contrast, to various sovereignstructures in the universe, there is no autonomous structure forsettling any disagreements concerning who exercises whichever preciseauthority.
Themajor role of Hong Kong Basic Law is to provide a structure ofadministration in Hong Kong. Almost 40% of its 160 articles arededicated to the structure of government (Fu et al., 2008). Thearticles give provisions for the Chief Executive Powers, who is theleader of SAR administration in Hong Kong. The legislature powers arealso given to a similar depth. However, the Hong Kong Basic Law doesnot provide provision for the separation of powers between the twoarms of the government. The omission has consistently led to conflictresulting to hostile affairs among the legislature and the executivein the Hong Kong SAR.
Chinaprefers to term the structure of administration provided in HK BasicLaw as “executive-led government.” The time acquired from thecolonial period, concentrates on supremacies of the Chief Executiveand giving the benefit, from Beijing’s perception, of stressing thepowers of the one area of Hong Kong’s administrative system whichfalls under Central Government’s influence. Hong Kong Basic Lawprovide Chief Executive comprehensive supremacies, like the power toappoint without any requirement for endorsement by the legislature.Those powers are so extensive, in writing, but not effectivepractically. A study conducted revealed that Hong Kong Basic Lawgives the Chief Executive theoretically superior supremacies thanbest known voted head of states in 33 other nations, among them theUnited States. Although, the “executive-led government” appliesto both the Chinese and Hong Kong SAR administrations the expressiondoes not indicated anywhere in the HK Basic Law. It is argued thatvesting some powers on legislature and judiciary would offer a clearseparation of powers than the Hong Kong Basic Law.
Thesmall elections held in Hong Kong to elect Chief Executive deniesthem powers as other democratically leaders in other nations. As aresult, Hong Kong’s leader is short of exercising Executive powersas provided by the HK Basic Law. The majority of the legislaturemembers are also elected in similar elections, to represent smallconstituencies. Some of them have the very small population, severalhundreds of people. However, because universal suffrage chooses 50%of all representatives, the total permitted in Legislature electionsis now far bigger than that of the Chief Executive (Fu et al., 2008).The result being granting the legislature more democratic powerswhich assisted it to push more for their rights during the drawing ofthe HK Basic Law. Many scholars objected the legislature dominancewhich might have led to the reason behind Beijing’s resolutionallowing Chief Executive to be voted by universal suffrage from 2017.Still it is not turn off the way nomination processes set in the HKBasic Law will limit the number of contenders permitted to contend inany coming Chief Executive election, and whether the naturalconstituencies will be eliminated when universal suffrage is finallyformalized for polls to all positions in the legislature.
Contrastingly,to the comprehensive explanations of the supremacies of both theExecutive powers and the Legislative powers, the Hong Kong Basic Lawdoes not provide more on judicial powers. Due to the success of theearly judicial system, the HK Basic Law protected them without manychanges. The main change that occurred was the replacement of theJudicial Committee of the Privy Council with the final court ofappeal in London. The committee had functioned as Hong Kong’shighest judicial body during colonial regime. The HK Basic Law defendthe freedom of the judiciary, especially to matters concerning theselection of judges. They provide for the formation of theindependent commission which is not inclined to the Chief Executive.Upon the appointment, judges are guaranteed the job security tillthey retire. Contrastingly, their salaries are not protected whichhas resulted in various attempts by judiciary to plead with Hong KongSAR administration to alter this. Some decisions of the court offinal appeal have been challenged in Beijing. For example, a casebetween Director of Immigration and Chong Fung Yuen2, the court ofappeal decisions did not appeal many resulting citizens demanding forinterpretation of HK fundamental laws. Later after the completion ofthe case people regained confidence with the court because itprotected the HK Basic Law.
Thelegitimacy of the National People’s Congress Standing Committee toinfer the HK Basic Law regularly is usually hovering in Hong Kongcourts. Concerning “Interpretation and Amendment”, there issolid proof to propose that it was not the aim of the drawers of theHK Basic Law to deliberate such an unlimited supremacy of construalon the Standing Committee, specifically the authority to decide themeaning of the big sections of the HK Basic Law which relates tomatters that are within Hong Kong’s sovereignty.
From1st July 1997, the Hong Kong courts have usually assumed a severetactic in the exercise of basic right as stipulated in the HK BasicLaw. The HK Basic Law is often stated to as traversing for 50 yearsas from 1997, with the repercussion that all it articulatesconcerning Hong Kong’s distinct structure. The present mode of lifewill abruptly end 30th June 2047(Fu et al., 2008). It is notstipulated well what will happen on the expiration of the period.Scholars suggest that on the expiration of the period just somealterations of HK Basic Law will take over. According to some by thattime, some of the HK Basic Law will be obsolete. Suggestions havealready started flowing on how to solve the challenges of theexpiration of HK Basic Law on how to protect the natives in theterritories. A balancing act is designed to be enacted on how to pushfor the change.
Fu,H., Harris, L., & Young, S. (2008). InterpretingHong Kong`s Basic Law.New York, N.Y.: Palgrave Macmillan.