Hong Kong’s mini-constitution, the Basic Law of the Hong Kong Special Administrative Region (Basic Law), was passed by the National People’s Congress (NPC) in April 1990 and went into force seven years later on July 1, 1997—the day when China resumed exercise of sovereignty over the city. On the eve of the 20th anniversary of the implementation of the Basic Law, the NPC Standing Committee (NPCSC) on May 27 held a high-profile symposium commemorating the occasion, featuring speeches by seven guests, including NPCSC Chairman Zhang Dejiang, who is also in charge of Hong Kong and Macau affairs as a member of the Communist Party’s powerful Politburo Standing Committee. It is not uncommon for the NPCSC to mark the anniversaries of laws it deems important, though yesterday was the first time that it provided transcript of the entire event. The speeches contained many salient points, and below we note the highlights of each in turn.
Elsie Leung (梁愛詩), vice chairwoman of the Hong Kong Basic Law Commission under the NPCSC and former Hong Kong Secretary for Justice, spoke first. Her speech focused on how the Basic Law has been essential to “[u]pholding national unity and territorial integrity [and] maintaining the prosperity and stability of Hong Kong”—the original purpose of establishing the Hong Kong Special Administrative Region (SAR) as stated in the Basic Law’s preamble. According to Ms. Leung, the Basic Law has helped (1) achieve a “seamless transition” from British to Chinese rule; (2) maintain prosperity by keeping Hong Kong’s capitalist system; (3) protect human rights and freedoms; (4) ensure the rule of law and judicial independence; (5) realize “progressive” democratic development; and (6) foster external exchange. In making these points, she referenced the Basic Law extensively and cited other statistics such as Hong Kong’s 23-year straight ranking as world’s freest economy by the Heritage Foundation as well as its top place on the Fraser Institute’s 2008–2016 Human Freedom Index.
The South China Morning Post reported that, as compared to printed copies of her speech, Ms. Leung skipped the paragraph on the Basic Law’s safeguards for human rights and freedoms when orally delivering her speech. It seems, however, that the paragraph was included in the online “transcript,” which shows that she mentioned every right and freedom provided for in Chapter III of the Basic Law, alongside references to other progress in human rights protection.
Towards the end of her speech, Ms. Leung remarked on recent civil unrest in Hong Kong. She said that the disputes leading to the unrest—which she called “illegal means to voice discontent”—resulted from
“[t]he citizens’ … post-handover failure to fully accept the change in citizenship status and to identify with the nation and the people. … [and] the not-yet-deep understanding of the provisions and significance of the Basic Law, … [causing] resistance to new constitutional arrangements such as the relationship between the Central Government and the SAR …”
She then praised the Hong Kong Government for “calmly handling” the unrest.
Song Zhe (宋哲), deputy head of the State Council’s Hong Kong and Macau Affairs Office, spoke next. Remarking that “the Basic Law is the legal safeguard for the cause of ‘one country, two systems,’” he devoted a significant portion of his speech commenting on the relationship between “one country” and “two systems,” between the Central Government and Hong Kong, and between Hong Kong’s legal status and basic system.
On the first question, he said that “‘one country’ is the prerequisite and basis for implementing ‘two systems’” and that “the ‘two systems’ belong to, derive from, and are unified within ‘one country.’” On the relationship between Beijing and Hong Kong, he emphasized that the Central Government possesses “comprehensive governing authority” (全面管治权) over Hong Kong and that the latter’s high degree of autonomy “originates from [the former]’s authorization” and is “subject to [its] supervision.” Lastly, he stated that Hong Kong’s political system under the Basic Law is “led by the Executive” (行政为主导) and not tripartite—“The Executive authorities and the Legislature check and cooperate with each other, while the Judiciary exercises judicial power independently and according to law. All of these much be correctly understood, earnestly implemented, and faithfully preserved,” said Song.
He then talked about the principle of “actively supporting anything that conforms to the basic provisions of the Basic Law and is conducive to Hong Kong’s long-term prosperity and stability” and “steadfastly” handling anything that does not. It was in accordance with this principle, said Song, that the Central Government “firmly supports” Hong Kong’s efforts to handle the “illegal” Occupy Central movement, and that the NPCSC interpreted the Basic Law’s oath-taking provision. He remarked that both “received the support of the whole nation including Hong Kong compatriots.”
Song was followed by Hong Kong’s current Chief Executive, Leung Chun-ying (梁振英). In his speech, Mr. Leung reflected on the Basic Law’s “authoritativeness, comprehensiveness, practicality, and vitality” (权威性、全面性、务实性和生命力). According to him, the Basic Law is authoritative and comprehensive because it provides the constitutional framework for Hong Kong, covering areas as diverse as “Hong Kong’s politics, economy, society, people’s livelihood, and residents’ rights and duties.” Further, the Basic Law is practical because it designs a system that suits Hong Kong’s “actual conditions,” of which he uses the Central Government’s “substantive power to appoint” the Chief Executive as an example. Mr. Leung explained that because Hong Kong is only an SAR and not a sovereign state, one must only compare Hong Kong to a local government with respect to democracy and elections. But also because Hong Kong possesses a higher degree of autonomy (as authorized by the Central Government) than local governments in democracies, it is therefore pragmatic, he implied, for the Central Government to retain its power to appoint Chief Executives.* Lastly, on the vitality of the Basic Law, he remarked that the “one country, two systems” arrangement has made Hong Kong a “super contact” (超级联系人) between China and the world—not only with respect to “finance, commerce, and logistics, but also regarding science, professional services, culture, education, and youth exchange.”
Ma Xingrui (马兴瑞), Governor of Guangdong Province, was the next speaker in line. His speech focused on the cooperation between Hong Kong and Guangdong (to which Hong Kong is geographically attached). Ma recited instances of cooperation between the two regions in economy, infrastructure (e.g., the Hong Kong–Zhuhai–Macau Bridge), commerce, science, education, as well as in environmental protection, disease control, and water supply, and so forth. He vowed to “comprehensively deepen closer Guangdong–Hong Kong cooperation in all areas,” particularly regarding “building a world-class city cluster in the Guangdong–Hong Kong–Macau Greater Bay Area” (an initiative launched in Premier Li Keqiang’s 2017 Government Work Report), “forming a one-hour Guangdong–Hong Kong–Macau economic circle,” and “improving people’s livelihood.”
Tam Yiu-chung (譚耀宗) was the fifth speaker at the symposium; he was a member of the NPC Hong Kong Basic Law Drafting Committee and a former member of the SAR Legislative Council. He spent considerable time recounting the many details in the drafting of the Basic Law, emphasizing the “spirit of inclusion” (包容精神) and consensus-building the process embodied, which he saw as tools to resolve new problems with the implementation of “one country, two systems.” Article 23 of the Basic Law is such a product of inclusion and negotiation and has served to “ease Hong Kongers’ concerns,” according to Tam. (Ironically, Article 23, which requires Hong Kong to enact its own anti-subversion law, sparked a massive protest in 2003 when the SAR Government released the proposal for such a law.) He finished his speech by calling “one country, two systems” the “best institutional arrangement,” which “should be adhered to even after 50 years.” (The Basic Law provides that Hong Kong’s original system and way of life will remain unchanged for 50 years after the handover.)
Han Dayuan (韩大元), head of China’s Constitutional Law Society and Dean of Renmin University Law School, was the second to last speaker. His speech centered around the proposition that “Constitution-based national identity is the basis for the successful implementation of the Basic Law” (基于宪法的国家认同是基本法实践成功的基础). He started by asserting that “national identity is the basic characteristic of a modern sovereign state … [and is] embodied in [China’s] Constitution, the basic law of the nation.” By declaring the Basic Law constitutional, the NPC further “legalizes” (法律化) national identity—which, along with state sovereignty, “constitutes ‘one country’” and acts as the prerequisite for “two systems.” Therefore, Han argues, upholding the authority of the Constitution—of which he cited the NPCSC’s interpretation of the Basic Law’s oath-taking provision as an instance—is required for implementing the Basic Law well. At the end of the speech, he called for “strengthening constitutional education, in particular actively carrying out education on the Constitution, the Basic Law, and civics in the SAR’s schools.”
The final speech at the symposium was delivered by Zhang Dejiang, Chairman of the 12th NPCSC. In the first part of his speech, Zhang reviewed the history and implementation of the Basic Law, repeating the many accomplishments mentioned by earlier speakers. When commenting on the “vitality” of the Basic Law, he reaffirmed the Central Government’s “comprehensive governing authority” over Hong Kong, and again praised the Hong Kong Government for its handling of the “illegal” Occupy Central movement.
Zhang then spoke on learning from the experience of implementing the Basic Law; two of the four points he discussed are summarized below.
First, the “fundamental purpose” of “one country, two systems,” he remarked, includes both “maintaining Hong Kong’s … long-term prosperity and stability” and “safeguarding state sovereignty, security, and developmental interests.” “Firmly building the notion of a nation [国家观念] is the core requirement” of implementing the Basic Law. Then for the third (but not the last) time in his speech, he reiterated the Central Government’s “comprehensive governing authority” over Hong Kong. He pointed out that the relationship between the Central Government and Hong Kong is that of “delegation of powers” (授权与被授权的关系), but not “power sharing” (分权). “Under no circumstance may [Hong Kong] confront the Central Government’s authority in the name of a ‘high degree of autonomy,’” he stated. In response to recent advocacy of “self-determination” and “Hong Kong independence,” he asked Hong Kong Government to
“earnestly fulfill its constitutional responsibility under [Article 23 of] the Basic Law to enact legislations to safeguard national security, to steadfastly suppress any act and activity endangering national unity, [and] to truly shoulder the responsibility to safeguard state sovereignty, security, and developmental interests…”
Then he commented on Hong Kong’s political system. According to Zhang, it is one “led by the Executive, with the Chief Executive as the core” (行政长官为核心的行政主导体制)—a design that is “the most conducive to Hong Kong’s development.” He repeated the notion that the system is not tripartite, nor is it led by the Legislature or the Judiciary. Such a system is necessary, according to Zhang, because the Chief Executive is “an important hub [重要枢纽] connecting the Central Government and Hong Kong and connecting ‘one country’ and ‘two systems.’” “Any future development and improvement of the SAR’s political system must also follow the basic ‘Executive-led’ principle.” He went on to emphasize that the Chief Executive must “love China and Hong Kong, have the Central Government’s trust, possess the capacity to govern, and be supported by Hong Kongers.” He ended this point by stating:
“The Central Government is responsible for supervising whether the SAR’s statutory public servants uphold the Hong Kong SAR Basic Law and whether they demonstrate allegiance to the State and the SAR.”
The last part of Zhang’s speech was his expectations for future implementation of the Basic Law.
First, he demanded continued implementation of the Basic Law and faith in the “one country, two systems” practice.
Second, he called for “strengthening the promotion and education” of the Basic Law. Education on the Basic Law and on “one country, two systems” must be carried out both in Hong Kong and on the mainland. Moreover, governments on the mainland as well as Hong Kong’s “Executive authorities, Legislature, and Judiciary” must take the lead in learning, following, and promoting the Basic Law. “One’s level of studying and mastering the Basic Law should be an important criterion of the SAR’s employment and evaluation of public servants,” said Zhang. He further demanded the cultivation of “correct notions of country, nation, and rule of law” (正确的国家观念、民族观念和法治观念) in Hong Kong’s teenagers from childhood.
Third, Zhang asked for improving the systems and mechanisms relevant to the implementation of the Basic Law. He proposed to approach the task from two angles: the Central Government’s comprehensive governing authority (his last reference to the term) and the high degree of autonomy delegated to Hong Kong. As to the latter, Hong Kong’s “executive, legislative, and independent judicial power, including that of final adjudication” should be “fully respected and effectively protected.” As to the Central Government’s power, Zhang remarked:
“While improving relevant laws and regulations to ensure direct exercise of such powers as diplomacy and national defense, formulate or specify relevant provisions by focusing on the powers to record and review the SAR’s laws, to appoint the Chief Executive and principal officials, to interpret and amend the Basic Law, to decide on questions of the SAR’s political development, and the Central Government’s powers to issue directives to the Chief Executive and to hear the Chief Executive’s work report and other reports, in order to perfect and implement the operable systems and mechanisms of the Basic Law…”
It is not clear whether he was signaling future legislations on those subjects.
Lastly, Zhang called for more rigorous theoretical research on the Basic Law.
- In case that you think our presentation of Mr. Leung argument doesn’t make much sense, here is the relevant paragraph of his speech:
“务实性方面：《基本法》的条文切合落实“一国两制”的实际情况，务实性强。其中一个例子，就是中央对香港特别行政区行政长官的实质性任命权。香港是一个特别行政区，并不是主权国家，因此香港的民主和民主选举，只可以和一般的地方政府比较，而不可以和主权国家比较。在民主国家地方选举产生的地方政府，没有类似香港的立法权、行政权和全面的财政支配权，自治权较香港低。香港的高度自治权，是由于中央的额外授权，所以中央保留了对行政长官当选人的任命权。这是在起草《基本法》的过程中，因应香港的实际情况而作出制度设计的例子之一。”