Date
12 December 2017
Hong Kong's Basic Law and China's constitution are completely different and there is no such thing as one being superior to the other. Photos: HKEJ
Hong Kong's Basic Law and China's constitution are completely different and there is no such thing as one being superior to the other. Photos: HKEJ

Can Hong Kong just adopt China’s constitution in full?

China has resumed sovereignty over Hong Kong for more than two decades but it was not until this year that officials from the north started to express their ambition to rule the city completely.

Given that, “one country, two systems” has been reduced to so-called local affairs. The definition of “local affairs” also may have been set by Beijing officials. Hong Kong no longer enjoys a high degree of autonomy.

What we have known in the past two decades is that the Basic Law is the only legal document that provides for the Hong Kong SAR government’s rule. There is no such thing as China’s constitution being superior to the Basic Law as the city’s legal foundation, except some selected national laws under Beijing’s direct control which are military and diplomatic in nature, as well as the national flag and national emblem laws.

Hong Kong people know that Beijing would not implement its own laws in Hong Kong under the “one country, two systems” principle.

Article 18 of the Basic Law states that “the laws in force in the Hong Kong Special Administrative Region shall be this Law, the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region. National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law. The laws listed therein shall be applied locally by way of promulgation or legislation by the Region.”

That said, there is nothing that says China’s constitution is part of Hong Kong’s legal foundation. This month, Beijing officials are set to define the relationship betwen the two documents.

But on Monday, when Beijing authorities celebrated National Constitution Day, officials told us another version of the story.

The legal head of the central government’s Liaison Office in Hong Kong, Wang Zhenmin, likened the relationship between the country’s constitution and Hong Kong’s Basic Law to that of a “mother and son”.

Wang also said it is important to “call a spade a spade”, and accept the fact that the Basic Law stems from the national constitution, adding that the Basic Law of Hong Kong can never be separated from China’s constitution.

While Wang may not be a senior government official, his comments made on such a special day showed how Beijing’s top leaders see the relationship between Beijing and Hong Kong. That is the “one country” concept should always be on top of all matters including keeping the uniqueness of Hong Kong.

Some would argue that China’s rule is supported by its constitution, so that the formation of the Hong Kong SAR and the Basic Law should have a direct relationship with Beijing’s constitution.

But the fact is that Beijing’s constitution and Hong Kong’s Basic Law are completely different. It is quite obvious that the “one country, two systems” would  disappear should Hong Kong adopt Beijing’s constitution. For example, Article 1 of the national constitution states that “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”.

The constitution also says that “the socialist system is the basic system of the People’s Republic of China. Disruption of the socialist system by any organization or individual is prohibited.”

By contrast, Article 5 of the Basic Law states that “the socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years”.

That said, before Hong Kong celebrates the 50th anniversary of its return to China, Hong Kong does not need to implement a socialist system and policies. Hong Kong people should ask Chief Executive Carrie Lam how to interpret Article 1 of the constitution and Article 5 of the Basic Law.

If what Wang said is true, Hong Kong should put the national constitution on top of the Basic Law and we will be governed under socialism, not capitalism.

However, another question should be raised whether China is practising real socialism, or another form of Hong Kong capitalism.

There are more examples proving the eagerness of Beijing officials to implement Beijing’s constitution in Hong Kong.

Article 6 of the national constitution states that “the basis of the socialist economic system of the People’s Republic of China is socialist public ownership of the means of production, namely, ownership by the whole people and collective ownership by the working people”.

If the constitution was above the Basic Law, does it mean we are all under a socialist state with a public ownership model?

Hong Kong people accept the fact that Hong Kong is under the rule of the Communist Party and the People’s Republic of China. But that doesn’t mean that  Beijing officials can simply discard the Sino-British Joint Declaration and its guarantees for Hong Kong.

If these officials tell us that the national constitution is above all laws, they should just forget about the Basic Law and appoint a party secretary for Hong Kong to replace Carrie Lam. That would bring Hong Kong completely under Beijing’s rule.

– Contact us at [email protected]

SC/RA

EJ Insight writer

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