Основной закон Гонконгского специального административного района

Organic law of the Hong Kong SAR

The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China is a national law of China that serves as the organic law for the Hong Kong Special Administrative Region (HKSAR). Comprising nine chapters, 160 articles and three annexes, the Basic Law was composed to implement Annex I of the 1984 Sino British Joint Declaration. The Basic Law was enacted under the Constitution of China when it was adopted by the National People's Congress on 4 April 1990 and came into effect on 1 July 1997 after the handover of Hong Kong. It replaced Hong Kong's colonial constitution of the Letters Patent and the Royal Instructions. Drafted on the basis of the Joint Declaration, the Basic Law lays out the basic policies of China on Hong Kong, including the "one country, two systems" principle, such that the socialist governance and economic system then practised in mainland China would not be extended to Hong Kong. Instead, Hong Kong would continue its capitalist system and way of life until 2047. The Basic Law also sets out the sources of law, the relationship between Hong Kong and the Central Government (State Council), the fundamental rights and duties of Hong Kong residents and the branches of local government.

Shortly after the Sino–British Joint Declaration was signed, the National People's Congress set up the Basic Law Drafting Committee (BLDC) in 1985, setting the basis of the transfer of sovereignty in Hong Kong from the United Kingdom to China. The committee was responsible for writing the draft Basic Law. In June 1985, the Standing Committee of the National People's Congress (NPCSC) approved the membership of the BLDC, which consisted of 36 members from China and 23 members from Hong Kong, chaired by Chinese diplomat Ji Pengfei. Twelve of the 23 members from Hong Kong were connected to the city's business and industrial sectors. A Basic Law Consultative Committee (BLCC) consisting of Hong Kong community leaders was also established in 1985 to collect views in Hong Kong on the draft law. Similar to the BLDC, the BLCC was also dominated by business and professional elites. The first draft was published in April 1988 followed by a five month public consultation. The second draft was published in February 1989, and the subsequent consultation period ended in October 1989. The Basic Law was promulgated on 4 April 1990 by the National People's Congress, together with the designs for the Regional Flag and Regional Emblem of the HKSAR. On 4 June 1989, the BLDC's only two members representing the nascent pro democracy camp, Martin Lee and Szeto Wah, declared that they would suspend their participation after the military crackdown of the Tiananmen Square protests of 1989. In September 1989, Lee announced that he would return to the BLDC after being urged to do so by many in Hong Kong. However, in October, Beijing expelled Lee and Szeto from the BLDC as "subversives". Lee and Szeto had voiced support for student activists in Beijing and had led the Hong Kong Alliance in Support of Patriotic Democratic Movements in China, an organisation instrumental in assisting political dissidents leave China after the military crackdown on 4 June.

The basic principles of Hong Kong's governance under Chinese sovereignty mirror those in the Sino British Joint Declaration, and most of them are set out in the first chapter of the Basic Law. The NPCSC has identified Articles 1 and 12 as the fundamental provisions of the Basic Law. Article 1 declares Hong Kong as a part of the People's Republic of China, but it maintains legal and political systems distinct from those in mainland China until 2047. Hong Kong has a high degree of autonomy and maintains its own executive, legislative and judicial branches. Judicial power includes the power of final adjudication, which replaces the colonial judicial recourse of appealing to the Judicial Committee of the Privy Council in the United Kingdom with appeals to the Court of Final Appeal. The Hong Kong national security law incorporated into Annex III of the Basic Law overrides incompatible local ordinances and allows mainland Chinese courts to preside over cases that involve certain national security crimes. Article 5 requires that the socialist system and policies to not be practised in Hong Kong and the capitalist system and way of life before the handover remain for 50 years after the handover, or 2047. This ignited criticism from many people in Hong Kong, who said that the Communist leadership was undermining the Basic Law Article 8, in that it was reneging on its pledges to abide by the policy that allows for a democratic, autonomous Hong Kong under Beijing's rule.

The Basic Law guarantees Hong Kong a high degree of autonomy under Chinese rule, with the exception of foreign affairs and defence which remains the purview of the Central People's Government.

Four agencies of the central government operate in Hong Kong. The Office of the Commissioner of the Ministry of Foreign Affairs was established under Article 13 of the Basic Law and began operating after the handover. The Liaison Office of the Central People's Government replaced in 2000 the Hong Kong branch of Xinhua News Agency, which served as the de facto diplomatic mission of China to Hong Kong since 1947. The Hong Kong Garrison of the People's Liberation Army began operating after the handover. The Office for Safeguarding National Security was established in June 2020 under the Hong Kong National Security Law. Article 22 states that "no department of the Central People's Government and no province, autonomous region, or municipality directly under the Central Government may interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this Law". In April 2020, the provision sparked a debate after the Liaison Office and the Hong Kong and Macao Affairs Office criticised pro democratic legislators for delaying the election of the chairperson of the Legislative Council House Committee. Pro democratic legislators said the offices violated Article 22 by commenting on the election of a chairperson in the local legislature. In response, the Liaison Office said both itself and the Hong Kong and Macao Affairs Office are not subject to Article 22 because they were authorised by central authorities to specialize in handling Hong Kong affairs and not what are commonly meant by "departments under the Central People’s Government". On the website of the State Council of China, a. k. a. the Central People's Government, the Hong Kong and Macao Affairs Office (国务院港澳事务办公室) and Xinhua News Agency (新华通讯社), whose Hong Kong branch was predecessor to the Liaison Office, are listed among institutions separate from the constituent departments of the State Council (国务院组成部门). Zhang Xiaoming has also said the Office of the National Security Commissioner is not subject to the restrictions in Article 22.

Except the Basic Law and the Constitution, national laws are not enforced in Hong Kong unless they are listed in Annex III and applied by local promulgation or legislation. When national laws are enacted locally by the Legislative Council, the local version adapts to the context of Hong Kong for the national law to have full effect. The NPCSC has the power to amend legislation included in Annex III after consulting its Basic Law committee and the Hong Kong government. Laws in Annex III must be those related to foreign affairs, national defence or matters not within Hong Kong's autonomy. As of June 2020, Annex III includes laws on the designation of capital, national flag and anthem, territorial claims, nationality, diplomatic privileges and immunity, garrisoning of the People's Liberation Army and crimes involving national security. In May 2020, the National People's Congress announced that the NPCSC would enact a national security law tailored for Hong Kong in response to the 2019–20 Hong Kong protests. The law was added to Annex III and promulgated without being passed in the Legislative Council. National laws can be applied if they only affect an area in Hong Kong. In 2018, the Hong Kong West Kowloon station of the Guangzhou–Shenzhen–Hong Kong Express Rail Link was completed to include a section where mainland Chinese officials are allowed to exercise Chinese laws, an arrangement that intended to reduce the time needed for immigration. The effectiveness of Chinese law inside Hong Kong territory was challenged in the same year in the Court of First Instance. The court ruled that the Basic Law is a flexible constitution and as such can be interpreted for the needs of economic integration; the arrangement of having mainland Chinese laws in Hong Kong for the purposes of customs, immigration and quarantine does not contravene the "one country, two systems" principle. While the most parts of the ICCPR is ratified as the Hong Kong Bill of Rights Ordinance in largely identical language, no equivalent legislation was made to implement the ICESCR.

Hong Kong residents are equal before the law. Hong Kong residents have, among other things, freedom of speech, freedom of the press and of publication; freedom of association, freedom of assembly, freedom of procession, of demonstration, of communication, of movement, of conscience, of religious belief, and of marriage; and the right and freedom to form and join trade unions, and to strike. the unprecedented disappearance of a person from Hong Kong, and the bizarre events surrounding it, shocked the city and crystallised international concern over the possible abduction of Hong Kong citizens by Chinese public security bureau officials and their likely rendition, in violation of several articles of the Basic Law and the one country, two systems principle. The widespread suspicion that they were under detention in mainland China was later confirmed with apparently scripted video "confessions" and assurances by the men that they were remaining in China of their own accord. Article 95 provides for mutual judicial assistance between Hong Kong and the PRC; however, serious stumbling blocks, such as capital punishment stand in the way of a formal understanding of extradition. Additionally, HKSAR authorities have ruled that Articles 6 and 7 of the PRC Criminal Code does not give Hong Kong sole jurisdiction in criminal matters, particularly when a crime is committed across provincial or SAR borders. The current status quo is that Hong Kong will ask for the return of Hong Kong residents who have committed crimes in Hong Kong and are arrested in the mainland. A mainlander who commits a crime in Hong Kong and flees back to the mainland, however, will be tried in the mainland. In cases of concurrent jurisdiction, the Central Government has demanded that the trial be held in the mainland. Prominent authorities, such as Albert Chen, a professor, and Gladys Li, chairman of justice of the Hong Kong section of the International Commission of Jurists, feel that this situation has serious ramifications for judicial independence in Hong Kong.

Permanent residents of the Hong Kong Special Administrative Region have the right to vote and stand for election in accordance with the Basic Law. Provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong when the Basic Law came into effect were allowed to remain in force. Article 45 stipulates that the Chief Executive shall be selected by election or through local consultations and be appointed by the Central People's Government, with the ultimate aim of selection by universal suffrage upon nomination by a representative committee under democratic procedures." However, Hong Kong has yet to implement universal suffrage for the elections, because the Basic Law states that the electoral method are subject to the "actual situation" of Hong Kong and "the principle of gradual and orderly progress". Whether the 2007 Chief Executive election and the 2008 Legislative Council elections could be performed by universal suffrage was determined on 26 April 2004, when the NPCSC ruled out the possibility as it deemed Hong Kong not mature enough for such elections. In 2014, the 31 August Decision by the NPCSC stated that starting from 2017, the selection of the Chief Executive may be implemented by universal suffrage upon nomination of candidates by a broadly representative committee and subject to appointment by the Central People's Government. It went on to state that such a person must love the country and love Hong Kong and that safeguards for this purpose should be provided for by the specific method of universal suffrage, without specifying what the safeguards were to be.

The courts of Hong Kong are given the power to review acts of the executive or legislature and declare them invalid if they are inconsistent with the Basic Law. The Chief Executive of Hong Kong can be selected by election or through consultations held locally and be appointed by the Central People's Government. The term of the Chief Executive after their predecessor resigns was a question that emerged after Tung Chee hwa resigned on 10 March 2005. The legal community and the pro democracy camp said the term of the new Chief Executive should be five years, according to Article 46. However, the Hong Kong government, some Beijing figures and the pro Beijing camp said that it should be the remaining term of the original Chief Executive, by a technicality in the Chinese version of the Basic Law, introducing the remaining term concept. The Hong Kong government sought an interpretation from the NPCSC on 6 April 2005. The NPCSC ruled on 27 April 2005 that the Annex I of the Basic Law requires that if any Chief Executive should resign on or before 2007, the new Chief Executive should serve out the remainder of his predecessor's term. Hong Kong residents who favour autonomy view the "interpretation" from the Standing Committee as an intrusion into the Hong Kong legal system by the central government in violation of the spirit of the One Country, Two Systems policy, compromising the rule of law. The Basic Law also guarantees the welfare and benefits of civil servants. According to the Article 100 of the Basic Law, the civil servants may remain in employment with pay, allowances, benefits and conditions of service no less favourable than before the handover. Article 107 stated the SAR Government should follow the principle of keeping the expenditure within the limits of revenues in drawing up its budget. Whether pay cuts for civil servants and having a deficit budget are allowed under the Basic Law had been raised. During the economic downturn after 1997, there was a growing fiscal deficit (and, in 2007/08 a record surplus). The government imposed a pay cut on the Civil Service during the economic downturn, and then sharply increased salaries during the recovery.

The Basic Law provides the Hong Kong government limited power to engage in international affairs. Under the name "Hong Kong, China", the Hong Kong government can enter into bilateral agreements with non Chinese regions and international organisations related to certain fields, including commerce, trade, communications, culture, tourism and sports. As members of a Chinese delegation, government representatives can also engage in diplomatic negotiations and participate in international organisations and conferences that directly affect Hong Kong.

The interpretation of the Basic Law by the Hong Kong courts and the NPCSC is politically contentious. Albert Chen has described NPCSC interpretations as the "major cause of constitutional controversies" since the handover. which was decided by the Court of Appeal 28 days after the handover. The applicants argued the Provisional Legislative Council established unilaterally before the handover was unlawful, and the laws it enacted were void. The court dismissed this argument. Among other reasons, the court held that as a local court it had no power to review an act of a sovereign authority. Since China has a written constitution and the Basic Law describes the relationship between Hong Kong and the central government unlike the colonial Letters Patent and the Royal Instructions, Chan questioned whether parliamentary supremacy fully applies in Hong Kong after 1997. It might be argued that interpretations of the Basic Law by the Standing Committee of the National People's Congress are effectively “amendments” to the Basic Law. The Hong Kong Court has nonetheless found NPCSC interpretations to have "supplementary” legislative effects in a manner consistent with Chinese jurisprudence. Similarly, the NPCSC's interpretive power could be used to modify a nearly unrestricted range of local laws without recourse by either the HKSAR courts or Government.