Unit 2.
The Constitutional Framework.
Overview
Welcome to this, the second unit in the course Government and Politics of Hong Kong. In the last unit we tried to show how Hong Kong's political development has progressed over time. Now what we are going to do in Unit 2 is to look at the constitution of Hong Kong . We are doing this in order to understand the nature of a constitution in relation to the politics of the Special Administrative Region . The kind of questions that we are going to ask is whether there is a difference between what is written in the constitution and the way the system actually operates; whether the powers of the different branches of government are clearly laid out in the constitution and whether the rights of the people are guaranteed against government interference? To do this we have to look at what are the sources of the SAR's constitution . We also need to look in some detail on what the major constitutional documents have to say and what areas they look at.
Notice, once again , that the questions outlined above are of great importance to Hong Kong as the political system develops. If the constitution is observed then we will have a predictable political framework which we can work with to the benefit of all. If it is ignored then the documents which outline the powers of the people and government will be pointless as it would be a worthless piece of paper.
There is one major document you should have by you throughout this Unit and that is the “Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China.? We will be constantly referring to it as we progress. We shall also be referring you to the State Constitution of the People's Republic of China where we think it appropriate.
Occasionally you will find words or phrases written in bold type. If you do not understand what they mean then you will find a glossary at the end of the unit.
OBJECTIVES.
By the end of Unit 2, you should be able to :
Describe between constitutions and constitutionalism.
Identify the sources of Hong Kong's constitution.
Discuss the main provisions of the Basic Law
Demonstrate an appreciation of the role of the judicial and political actors in constitutional interpretation.
5. Apply the concept of constitutionalism to relations between Government and People in Hong Kong.
INTRODUCTION
Hong Kong's constitutional development, as suggested in Unit 1, has been evolutionary rather than revolutionary. For much of its history the constitution was written by the British government with Hong Kong being a colonial possession. In 19990, as we shall see, a new constitution was approved which is now the most important document relating to the constitution of the Special Administrative Region (SAR).
Once again you might find it surprising that many of the constitutional practices of the old British system have been retained in the new constitutional system of Hong Kong. Some names have been changed (for example Chief Executive in place of the Governor) and the electoral methods have been updated (for example the future method for electing the Legislative Council) but much remains the same.
What we are going to do in this Unit is to look at how what the constitution is, how relevant it is to the political system, how far it is observed in practice and how it can be changed in the light of changing circumstances. So let us begin.
CONSTITUTIONS AND CONSTITUTIONALISM
Let us first begin by looking at what a constitution is supposed to do. Every society needs to have some rules and regulations which explains, defines and operates what can and cannot be done in a society. In more detail they will usually look at the following.
1. THE TYPE OF SYSTEM.
The type of government. For instance is it unitary or federal?
Is it democratic or another form of government.?
2) GOVERNMENT.
What are the branches of government., for instance the executive branch or the legislative branch?
What method is used to elect representatives to government?
What is the relationship between those branches of government?.
What powers that government will have to make rules and regulations?
What powers the government has over the people?
In what ways the people are protected from the government and what freedoms they have or are denied?
3) THE LEGAL SYSTEM.
a) How the judicial branch is appointed and how they can be removed.
b) How the legal system operates and its powers to control government and protect the people.
c) How the legal system can interpret the constitution to define or alter it under changing circumstances.
How the far the legal system can provide the rule of law in a society.
THE RIGHTS OF THE PEOPLE.
Do the people have freedoms , for instance, freedom of speech, freedom of assembly, freedom of association, freedom of religion, the right to a fair trial?
Does the constitution allow for a free media such as a free press with no censorship?
AMENDMENTS.
In what ways is it possible to amend the constitution ?
Who has the power to make those amendments ?
We shall consider these points in some considerable detail when we move to look at the constitution of Hong Kong but let us move along and engage in an activity to help understand what we have just done.
ACTIVITY. 1
Imagine that you are setting up a society for the Open University students of Government and Politics. There are no members at the moment because the society does not yet exist. Five of you have got together to write a constitution for that society (actually it would be fun if you could get a group together). In the writing of the constitution what would you need to consider? We have given you a set of headings below and you can fill in the details.
TITLE
What is the name of the Society and what is the document ?
PREAMBLE
This might contain general statements about why you need a constitution and why you decided to set up the society.
CHAPTER 1.
General Principles
This might contain information about what you are going to try to do and how you intend to do it. (e.g. what benefits there are for those who join, what your main aims and objectives are going to be)..
CHAPTER 2.
This might contain information about the relationship between your society and the Open University. (e.g. what are your powers and what are those of the Open University, how they may be able to help your society and how you might benefit the Open University.
CHAPTER 3.
This might contain information about the membership. For example who can join the society, what rights they have, who can vote and under what circumstances they might have to leave the society.
CHAPTER 4.
This might contain rules relating to the Committee. For instance what offices you wish to have (e.g. President, Vice president , Secretary ?), how they are to be elected, how long they can hold office, how often the committee can meet, what powers the committee has etc etc.
CHAPTER 5.
This might refer to the Annual General meeting and the powers of the ordinary members over the committee, (e.g. to decide what is on the agenda, who can vote, what you can vote for, decide what the fees, if any, shall be, how the committee can be chosen and for how long they can serve, how the rules of the society might be amended.).
We have drawn up, at the end of the Unit our version of a possible constitution for the society. When you have written your constitution then compare it with ours. Which one do you prefer and why?
CONSTITUTIONALISM
You will remember from the beginning of this Unit we discussed what a constitution is supposed to do. However, equally important is that a constitution, once written , is observed. Quite simply , if the constitution is a document which people take notice of then we have constitutionalism and if not, the reverse is the case.
Let us take an example to show what we are trying to establish. Let us say the rules of a society (its constitution) makes it clear that the chairperson has to elected every year. Then the person holding that position ignores that ruling and stays in power for another year. If that is the case then the constitution is clearly broken and constitutionalism is no longer operating. If, on the other hand, the chairperson declares he intends to hold office without an election but is stopped by applying the rules then constitutionalism is in operation.
HONG KONG'S CONSTITUTION
As we pointed out earlier in this unit there are different types of constitutions. Some are to be found in one supreme document , for instance, the Constitution of the United States of America. Such constitutions are often referred to as a written constitution in many text books. We , however, are not going to use the term written as it is misleading and leads to confusion. A better term for a constitution written in one document is the term codified.
Other political systems do not have one written document as the source of the constitution but a large number of different documents. An example of this is the British constitution where the rules relating to the constitution are to be found in such areas as European Union Law , Acts of Parliament (Statute Law) and Common Law . As we can see sources are written but not in one document. This is why we refer to such a type of constitution as uncodified rather than unwritten.
THE OLD CONSTITUTION
Let us now look at Hong Kong's Constitution in more detail. We shall begin by briefly looking at the situation before June 30, 1997. Under this constitution, now of course, no longer operative, Hong Kong had a unitary constitution. In other words political power in Hong Kong was centralized and not federal. (given the size of Hong Kong a federal system does not really make much sense). The constitution itself was really imposed upon the people because they did not chose it, nor could they change it.
Its legal basis was based on a the Royal Prerogative , which allowed the monarch to constitute Hong Kong as a Colony. This was done in 1843 when a document known as the Royal Charter was issued. That document was the basis of Hong Kong's constitution. It established the post of Governor, Executive Council , the Legislature and the Judiciary and stated how they would operate. Two other documents, namely the Letters Patent and the Royal Instructions, were added. The second, the Royal Instructions, went into more detail over how Hong Kong was to be governed. These documents, plus other subordinate documents, such as the Colonial Regulations formed the basis of the constitution of Hong Kong.
So what were some of the most important formal provisions of the old constitution?
The supreme power over Hong Kong lay in Britain , formally with the monarch , but in reality with Parliament. This meant , for example, that any law (called an ordinance in Hong Kong) could be declared invalid by the British Parliament.
That formally the Governor was given considerable powers over the political system in Hong Kong. Constitutionally, the governor could overrule both the Executive Council and the Legislative Council if he chose to do so.
That any change in the constitution could only come about with the consent of Britain and that the people had no say in the changing of the constitution.
That the judiciary did not nearly as much power over the constitution as in many other systems such as the United States of America.
That Human Rights were not included in the Constitutional documents.
It seems to be the case that the Constitution of Hong Kong meant that the British government and the Governor could do what they wanted and were granted far too much formal power.. Look at the list below and work out what the old constitution allowed under its formal provisions and see whether you think this was fair or not. Notice that we are talking about the principle of right to make a decision and not the rights or wrongs of the decision itself. Some of the cases happened and some are made up by us - we will tell you which afterwards.
The British government decided that hanging a person convicted murder would not be allowed in Hong Kong in the future without the people being allowed to be involved in the decision.
The Governor refused to lift a death sentence on a convicted murderer but was overruled by Britain.
The British government decided that a percentage of Hong Kong's revenue should be given to Britain.
The Legislative Council passed an Ordinance and the Governor refused to sign it.
Britain negotiated the future of Hong Kong and declared that it would be returned to the People's Republic of China without consulting the Executive Council, the Legislative Council or the people.
Actually in every case Britain or the Governor had the power to do these things under the constitution. However, in reality, for most of the time things did not happen like this.
For a start, increasingly, after the Second World War, the British allowed Hong Kong to more or less run itself. This is hardly surprising given the economic success of the territory. Also Britain itself was a democracy and therefore if the government in Hong Kong went to far it would be stopped.
At the same time in Hong Kong the Governor , although he had considerable constitutional powers, was sensible enough not to take advantage of his powers. Firstly he could be removed by London if he went too far and secondly he could not work without the consent of Hong Kong. Actually, as the seventies and the eighties passed as we saw in Unit One the concept of government by consent and consultation operated with the constitution being liberally interpreted and widened by laws such as the Human Rights Ordinance.
(ACTIVITY. 2 READ CHAPTER X OF NORMAN MINER'S BOOK AND CONSIDER THE FOLLOWING)
Hong Kong's New Constitution.
INTRODUCTION.
Let us now look at the constitution which we have operating now in Hong Kong. What we need to do is first of all look , briefly, at how it came into being and what are its sources. When Britain and the United Kingdom agreed that Hong Kong would return to Chinese sovereignty on 30 June, 1997 they issued the Joint Declaration in 1984.
That document in many ways set out the path for the future constitution of Hong Kong. Under the agreement the old constitution would remain in force until the hand over, after which a new constitution would be introduced. So the first thing that had to be done was to write a new constitution for the future, otherwise there would be no constitution to guide the political system in 1997.
Remember, at this point, that Hong Kong was returning to the People's Republic of China.(PRC) The PRC had its own state constitution but it was agreed that Hong Kong would be run differently to the mainland under the “One country two systems?agreement. So the Chinese state constitution was not suitable for Hong Kong. Therefore a mini constitution needed to be written suitable for the future Special Administrative Region. That mini constitution would be called ?The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China? Nearly everyone refers to that document in its shorthand form “The Basic Law?
A group of people were selected to write this document and given the title of the Basic Law Drafting Committee (BDC) helped by another group known as the Basic Law Consultative Committee (BLDC). The BDC membership was made up of 59 members, 23 from Hong Kong and the remainder from the mainland. They produced the Basic Law which was then accepted and promulgated by the National People's Congress in April 4, 1990 and operated from July 1 1997.
Activity 3.
The Basic Law.
You should have with you the Basic Law because we are going to go thorough it together now. Consider the following points.
Why is such an important document so short with less than a hundred pages and
what are the advantages and disadvantages of having such a short constitution?
2. As well as reading the contents the constitution what else would you look out for to help you understand the document?
You can look when you have considered these points to page X see what we think you might answer these questions.
To be put at end of unit 2.
Here are the our answers to the three points to consider on page X.
Question 1 Why is such an important document so short with less than a hundred pages and what are the advantages and disadvantages of having such a short constitution?
Our answer.
Nearly all constitutions are fairly short including that of the United States of America and the People's Republic of China. The obvious advantage is that a short document can be read in a short period of time and as they are normally written in fairly simple language so that everybody is able to understand their main provisions. So a constitution is not over concerned with details but wants to outline in broad principle the way the political system operates. Another advantage of a short document is that it can be more flexible. That is it can be interpreted in different ways as and when necessary. Now it might seem strange that a sentence in a legal document can have a number of meanings but actually there are considerable advantages to this. The best way to explain this is through an example.
Let us assume that a phrase in a constitution states, “There shall be no cruel punishment allowed for being found guilty of a criminal offense? - and that is all it says. The first problem is to define what is cruel punishment? Is it cruel to torture a person? Is it cruel to shot, hang, poison or cut off a person's head? Is it cruel to put them in to cell by themselves until they die of starvation? Is it cruel to deprive them of food or water or to keep a person in a cell by themselves with no other human contact. These are just a few examples of what might be defined as cruelty and there could be hundreds more. Just consider how long even that short sentence would have to be defined if the constitution were to include all these points. The second problem is that as time changes attitudes towards certain things change.
Using once more our example of “cruel punishment?we have to look over a longer period. Constitutions are supposed to reflect principles which continue for a long time. If you kept on amending time and time again at short intervals the constitution would lose its legitimacy. So the problem is how do you deal with a change in society's values without constantly changing the constitution itself? This is where flexibility is important. If a stated principle is general then it can be interpreted in the light of changing conditions. So, for example, at one stage in history torture was not seen as cruel or unusual punishment but society's attitude changed and so by interpreting the phrase “cruel punishment: as including a prohibition on torture the principle outlined in the constitution remains the same but the practice is changed.
The disadvantages of a short document is that it can cause huge arguments in the areas that are not absolutely clear and lead to accusations of breaking the constitution, or not keeping to the spirit of the constitution. It also might leave some important areas not covered causing problems at a later date and leading to a number of amendments. (It is amusing to note that the framers of the American Constitution forgot to put in any human rights in the original documents and had to make amendments to include them later on!)
Question 2. As well as reading the contents of the constitution what else would you look out for to help you understand the document?
Our answer.
To begin with we would look out very carefully for what is not mentioned, in the document as an omission can be most significant. Equally if the wording is completely vague we need to have some further information. We mention this here in the context of the constitution but it is a general rule you need to apply in all academic studies. If something is missing, or is too vague and of great importance we have to ask was that done on purpose or was it carelessness? In the case of the human rights provisions in the American revolution is was a case of carelessness in this crucial area.
Let us illustrate the point by reference to a document mentioned previously namely the Joint Declaration. Remember it was not a constitutional document but a general blueprint on which much of the Basic Law was based. In that document it stated that the “Chief Executive will be appointed following elections or consultations? (FIND EXACT SOURCE)
Many argued at the time that this was much to vague and needed to be clarified as to whether he was to be elected or not and it led to much debate in the press and the media. This point was then clarified with the promulgation of the Basic Law.
Consolidation.
Now let us stop for a moment and see what we have established, because we have introduced a lot of ideas into this unit and it is time to consolidate that knowledge.
Hong Kong's constitution has been evolutionary rather than revolutionary. This seems to bear out the hypothesis put in the first unit and we shall test this as we proceed to look in some detail at the Basic Law.
Hong Kong's constitution is codified in a simple document namely the Basic Law.
Hong Kong's Basic Law is a short document outlining the main principles and ways in which the political system is to operate.
When we look at constitutions we must be aware that they do not go into great detail. And often need to be interpreted in the light of changing circumstances.
The Document.
The Basic Law begins with the degree of the President of the People's Republic of China stating that it came into effect on July 1, 1997. The most important fact to notice here is that is was made legitimate by the National People's Congress. Immediately we can see the importance of China and the top legislative branch in the Hong Kong's constitution.
The next part of the Basic Law is the Preamble and you should read it carefully because it makes some very important points in only three paragraphs. It states clearly that:
Hong Kong is now under the sovereignty of the People's Republic of China as from July 1, 1997.
That Hong Kong is to be treated differently from the mainland under the rubric of
The law must be fair to all and must not show differences between individuals regardless of wealth, position, power etc.
It must be clear and predictable.
It must not be retrospective.
It has to be enforced fairly.
Who appoints judges and who helps him make his appointment?
Who dismisses a judge and who makes the recommendation for dismissal?
Is the same procedure following for the dismissal of the Chief Justice?
Are there are other provisions which safeguard judicial independence?
Much, but not all of the Basic Law guarantees a high degree of autonomy to the HKSAR and the people of Hong Kong believe that so any changes would result in a loss of confidence.
The economic and social contents of the Basic Law retain a capitalist system and the “Hong Kong way of life which is clearly what the people of the region want.
Political groups in Hong Kong are very quick to point out what they believe to be breach in constitutional practice and the government takes note of this. Even in the first few months of creation of the SAR accepted public opinion and pressure group activity on the right to demonstate peacefully.
The press and media are very free and quickly bring constituitonal issues to the public attention.
The judicial branch is made up of highly professional and independent men and women who will not be bullied into a constitutional interpretation by government authorities.
The government of the People's Republic of China want Hong Kong to work and are increasingly aware that gross interference in the domestic environment is dangerous.
The whole world, and in particular the United States of America, is watching very carefully to make sure that the Basic Law is observed, particularly in the area of Human Rights. Also Taiwan, who the PRC want to bring back under Beijing authority, is looking carefully at the progress of the Basic Law to see whether it is observed or not.
That the Basic Law is set up under the provision of the State Constitution of the People's Republic of China and is enacted by the National People's Congress.
All these three points are of great significance. Why is this so?
Quite simply it establishes that Hong Kong is not an independent state but a part of the state of the People's Republic of China. However, the preamble clearly recognizes that Hong Kong is different in all kinds of ways from the mainland itself. Therefore, the Basic Law, as a constitutional document, needs to clarify those differences and also the powers the state (the PRC) over the subordinate part (Hong Kong) and the powers of Hong Kong itself.
Activity 4.
Before you read any further into the Basic Law draw up a list of the ways in which you think that Hong Kong is different from the mainland itself. This list should include political, economic, legal and social differences. We think that you will find a huge number of differences. Having drawn up that list now draw up a list of similarities!
The next part of the Basic Law deals with the General Principles. You will notice that in total there are eleven articles in this section. Read each article carefully and you will notice that each article expands on the Preamble and are further elaborated in later Articles. We have paraphrased the order of the General Principles for you with some brief comments for you to consider. Once you understand their contents then we have no need to go into great detail on the other sections are they are included in the later..
Article 1 Establishes the sovereignty of China over Hong Kong.
Article 2 Gives a high degree of autonomy for the Special Administrative Region
Article 3 Gives information on who will be members of the government and judicial branch.
Article 4. Clearly states the freedoms and right of the people.
Article 5 Makes it clear that the economic system will be capitalist and will stay like that for at least fifty years(that is from 1997 until the year 2047.
Article 6 and 7 Spell out the right of private ownership and the use of land resources, once again underlining the autonomy of the Hong Kong SAR government in this area.
Article 8. Establishes that the Hong Kong legal system will remain different from that of the PRC and much of the old legal system inherited from the British administration will remain in place.
Article 9. This deals with the official language showing that both Chinese and English will be allowed to be used in government and judiciary. (However, if there is a difference in interpretation the Chinese language will dominate).
Article 10. Deals with the flags that can be used in Hong Kong allowing the use of a SAR flag and describing what it is.
Article 11. Establishes the previous ten articles under the National State Constitution of the PRC and makes it clear that the Hong Kong legislature cannot contravene that law.
Activity 5.
Now what we would like you to do is to look at what you did in Activity 1 when you were setting up a society. Compare this with Articles 1-10 in the Basic Law. Then briefly look at the later chapters in the Basic Law.
From this point on the Constitution proceeds to go into even greater detail about the first ten principles outline in the first ten articles. We will not go into great detail here are they will all be referred to in some detail when we look at the later units which deal with these areas.
However, we can see, even at this early stage, a clear outline of the political, economic, social and legal system of Hong Kong that that we live under. We have put it in a diagram below to help you see the system more clearly.
Peter and Mary.
I have included in a separate file the diagram I want for this point. I leave it to you to tidy it up and put the arrows in the obvious places. Thanks.
Other sources of the Hong Kong Constitution.
You will remember that we have emphasized that the Basic Law is a very short document and needs to be expanded to cover those areas which are not clear or need more information.. Obviously the Letters Patent and the Royal Instructions are no longer in force as they concerned with British constitution relating to the territory.
Conventions.
However, there has to be some sources which will expand the Basic Law in order to clarify it. These are not to be found in the formal Basic Law, but can be found in constitutional conventions. What are constitutional conventions? They are powers in the constitution which come about by agreement or by custom over a long period of time. How do conventions operate?
Let us start with an example. Look at your Basic Law , Article 48 (7). It states that the Chief Executive shall have the power, “to appoint or remove holders of public office in accordance with legal procedures?- and that is all is states!. Under the convention (agreement and custom) the Governor would discuss at great length with the British authorities and influential parties in Hong Kong before he would appoint a person to a high position such as Chief Secretary or the Financial Secretary. He did not have to do it but it would be silly to make an appointment without a high degree of agreement. Equally, in the old constitution the Governor was granted huge powers but he would not be so silly as to use them. For instance, he could ignore the advice given to him by the Executive Council. However, the convention was that he would never do this as it would cause considerable ill feeling so he would always consult interested parties first.
Now with the new constitution there are two sets of conventions we have to consider. The first are those inherited from the old constitution and carried over. Even after a very short period we can see that many of the old conventions are still observed. For instance the Chief Executive spent a very long time discussing and listening to the advice of others in Hong Kong before he made his nomination to the Central People's Government for appointment of high officials in the Special Administrative Region - although there was no reference for his to have to do this in the Basic Law.
Activity 6.
Let us establish this idea of convention with a hypothetical example. Look again at Basic Law Article 48 (4). Here it clearly states that the Chief Executive has the power, “To decide on government policies and to issue executive orders? Let us assume hat he wishes to make major changes to policy on education. He has to consult with the Executive Council (Article 56) but does not have to follow its advice and he can disregard major opposition to his policies from opposition groups such as pressure groups and political parties. Do you think he would do this? If not why not? Consider your answer and see if it agrees with ours later in this Unit.
Answer (PUT IN A LATER STAGE OF THE UNIT UNDER THE TITLE OF ACTIVITY 6)
Answer.
We think that it his highly unlikely that the Chief Executive would make any major changes without consulting a large number of interested persons and pressure groups. After all what any chief executive needs and desires is an efficient system. He would need first to consult the experts in the Education Department to make sure that his policy is workable otherwise it would be pointless. He would need to get the support of the Executive Council and the Legislative Council as he needs a working relationship with that body. He would also need to consult with the teachers or they might cause trouble. He would have to sell his ideas to the media and lastly to the public at large. You can imagine the consequences of going ahead without any reference to these groups. So the convention of consultation and compromise will remain in force.
Amendments.
We must remember that constitutions are written by human beings and are not perfect and sometimes they need to be changed. Also, as we have discussed earlier a rule which seemed to be acceptable at one time might need to be changed in the light of changing circumstances.
However we have to have a balance in how we change a constitution and who has the power to change it. Let us take a brief look at the longest lasting codified constitution in the world, the constitution of the United States of America and see how it changed and who had the power to change it by looking briefly at an example. When the American constitution was first written in 1789 the United States was a very different society compared to today. For a start it had slavery, something unimaginable in the twentieth century. It was not democratic because many adults and all women were deprived of voting power and the original document had no human rights included. The last area relating to human rights was quickly added in 1791 but full voting rights for all adults over the age of eighteen was not included until 1971. Slavery was abolished in 1865 by constitutional amendment. The amendments relating to voting rights came bit by bit over time as attitudes and expectations changed and the constitution needed to be updated. If the amendments mentioned above had not been included you can imagine the instabilities that would have occurred.
The next problem in the American constitution was who has the right the amend it? Should it be easy to amend or should it be difficult? Should the decision to change it be made by the top central government officials or should the widest possible sector be involved? The decision was to make it difficult to amend and to involve the greatest number of sectors. In fact it is so difficult to amend that there have only been 26 amendments since 1789 and only 14 since 1791! (We are not going to go into details on how it can be amended as we are using the USA as an example and it would take far too long to explain - however if you want to know then find any text book on the Government and Politics of the USA and it will tell you.
So we can see the American system believed that constitutions were made to last and that any changes had to be very carefully considered. Now let us look at the Basic Law and see how amendments are dealt with.
First of all it is easier to amend than the American constitution, but still has to have the consent of a large number of actors both in the region and the mainland. Under Article 159 the power of amendment is given to the National People's Congress (NPC) of the People' Republic of China. The power to propose bills for amendment lies with the Standing Committee of the NPC, the State Council and the HKSAR. Amendments to the Basic Law of Hong Kong coming from Hong Kong must be submitted to the NPC by a delegation from the HKSAR to the NPC after obtaining the consent of two thirds of the deputies of the Region to the NPC, two-thirds of all the members of the Legislative Council of the Region and the Chief Executive of the Region. There is one possible problem, however, that must be borne in mind. The power to amend the Basic Law, or even abolish it, is in the hands of the National People's Congress as it is not an entrenched constitution. In fact a simple majority in the PRC by a simple majority without consultation with the Hong Kong SAR. We do not think that this will happen but it is an area of concern that we have to consider.
Activity.
Read carefully Chapter 5 PP 63-65 of Norman Miners The Government and Politics of Hong Kong (5th edition) and the following questions.
Which parts of the old constitution became obsolete on July 1, 1997?
Which document replaced the old constitution?
What document provided was important as a guide in drawing up the Basic Law
Is the PRC a unitary or a federal state.
Who has the power to apply any national law to the SAR.
At the time of writing there have been no amendments to the Basic Law since its acceptance in April 1990 for the post June 1997 administration. There is no doubt however that they will take place over time as circumstances change but there has already been an interpretation of the Basic Law, so let us now turn to interpretations of a constitution.
Interpretation.
As we have just discussed it in not wise to continually amend a constitution as it is agreed that amendments should by undertaken only on major constitutional grounds. However, as we know arguments and differences can arise over the meaning of certain Articles, phrases and words in the Basic Law. This is not a bad thing as it can lead to different interpretations which allow a greater flexibility which helps the constitution to reflect changing conditions. Let's look at this for a moment. In the Summer of 1997 there was the question of whether the Provisional Legislature of the HKSAR was a legal body under the terms of the Basic Law.
PETER AND MARY PLEASE GET CUTTINGS OF THIS CASE IN THE SCMP AND GET IT IN THE MAIN TEXT. WORK OUT QUESTIONS AND CONSIDERATIONS OF THE JUDICIAL INTERPRETATION AND GET THE STUDENTS TO CONSIDER THE CONSEQUENCES IF THE RULING HAD BEEN THAT THE PROVISIONAL LEGISLATURE WAS NOT A PROPERLY CONSTITUTED BODY. THEN LEAD A SENTENCE TO CONNECT WITH THE NEXT PARAGRAPH. THANKS - IT IS DIFFICULT TO DO FROM HERE.
Now let us look at some examples of phrases that need interpretation so that the meaning is clear and is able to accommodate changing conditions. We shall take the example of Article 27 and see how this might need further interpretation. Article 27 of the Basic Law states that,?Hong Kong residents shall have freedom of speech, of the press and of publication, freedom of association of assembly, of procession and of demonstration, and the right and freedom of to form, and join trade unions and to strike.?Now take the part of article on freedom of speech. What does that actually mean? At first sight it seems obvious that being we can say anything we want at any time without any interference. But consider the following and ask yourself what the problems might be in a political context.
You stand up in a public meeting and say that a particular political figure is a liar, a thief and a cheat. Moreover, you have not a shred of evidence to prove your case.
You stand up in a public meeting and argue that the Chinese leadership in Beijing is incompetent and that the leaders should be removed.
You stand up in a public meeting and state that the Chief Executive is giving himself powers which are more that the Basic Law allows him.
In each case there is the question of whether or not the right to freedom of speech has gone too far. In the first case it is patently unfair because your exercise of free speech has harmed another person unreasonably. Actually in this case the politician involved could take you to court for libel and provided you could not prove that he or she was a liar, a thief or a cheat you would pay a hefty damages. In other words if you exercise your freedoms in a clearly irresponsible way it is not acceptable and the law protects you. The Basic Law clearly endorses the first case and it is not in need of interpretation.
What happens, however, in the second case, that is advocating removal of the leaders in the national government in Beijing? Here we have a much more complicated situation. Firstly Article 39 states that, “The rights and freedoms of Hong Kong residents shall not be restricted unless prescribed by law and furthermore Article 23 of the Basic Law clearly states that, ?The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government ?.?In this case there is a constitutional problem of interpretation and it raises lots of questions. Is the statement an act of treason? Is it subversive? Is it seditious? Which prevails Article 28 or Article 23 if one contradicts the other?
Finally what happens if you argue that the Chief Executive has given himself powers which exceed those granted in the Basic Law. You have made the accusation and it is damaging so how can it be resolved. The only way that this can be settled constitutionally is through the interpretation of the Basic Law and there is a provision in that document for just that.
Look at Article 158 and answer to the following questions (the answers are clearly written in the text but this is a good way of remembering them.
In whom is the power of interpretation vested?
What powers does the Standing Committee grant to the courts of the Hong Kong SAR?
If there is a difference in interpretation of cases on the question of the relationship between the Central People's Government and the Hong Kong SAR how is it resolved?
If a dispute arises who makes the final decision?
As we can see from Article 158 the Hong Kong judicial branch is given considerable autonomy to interpret the Basic Law and its application to the region. So let us take a look at the judicial branch . At the same time we need to point out that we are not looking at all the aspects of law in Hong Kong as it would take far too long. We are only going to consider the main outlines and its significance of the political system and how it operates particularly with regard to the Basic Law.
The Judicial branch.
The formal role of the judiciary is outlined in the Basic Law Articles 80 to 98 inclusive. The court that concerns us most is the Court of Final Appeal. This is because it is the highest court in Hong Kong and has the final adjudication. Beneath it is the High Court which has two branches the Court of Appeal and the Court of First Instance.
The most important role of the judicial branch is to make that the rule of law operates in a society. What is the rule of law? Let's take a look at this for a moment by taking a few simple examples
Let us assume that two people are accused of committing an identical crime. The first is rich and politically powerful the second is poor and has no political influence. The first uses his political influence to bring pressure upon the judiciary to drop the case despite overwhelming evidence of guilt. The second , who has no means of influence is brought to course and found guilty. Is this fair? I think you will agree that in this case there is something very wrong with the legal system. So what do we need to have the rule of law in operation. We can think of the following.
The law must be fair to all and must not show differences between individuals regardless of wealth, position, power etc. It must be clear and predictable. It must not be retrospective. It has to be enforced fairly.Lastly there should be the principle of due process. That is that the rule of law underpins the constitution and that the result is that we have the Rule of Law and not the Rule of Man.
The first essential condition for this is the independence of the judiciary. That is judges when appointed are not subject to political pressure and also cannot be dismissed if they make decisions that the political leaders do not like. Now turn to the Basic Law again and see if there is provision for Judicial independence. Look at Articles 80-98 and answer the following questions.
Who appoints judges and who helps him make his appointment? Who dismisses a judge and who makes the recommendation for dismissal? Is the same procedure following for the dismissal of the Chief Justice? Are there are other provisions which safeguard judicial independence? As you can see the appointments procedure tries to make sure that suitably qualified judges are appointed and the role of advise from the judicial branch is necessary. Also under the Basic Law it is not easy to dismiss a judge. This is because it is necessary to prove the “inability to discharge his or her duties, or for misbehavior? To do that an independent tribunal has to be set which hears evidence and makes the recommendation. That tribunal is made of independent judges and not of political decision makers which again should help to guarantee an independent judgment. Other safeguards are built, in such as pay, cannot be reduced if the government branch disagrees with their judgments. Also judges are told that they can exercise judicial power independently, free from any interference. They are immune from any legal action when they are performing their judicial functions. Added to that there is a provision for appointments to be made to the judicial branch from other “common law jurisdictions?- which means other countries which practice common law.
Reading.
Read Chapter 4, pages Section B onwards (the part before section B is too difficult for a non specialist but try it if you want) in Raymond Wacks (ed), The Future of the Law in Hong Kong. Oxford University Press (Hong Kong) 1989. The reading is not an easy one and you will have to concentrate to understand it - however if you persevere it is worthwhile. Having read the chapter very carefully write down what you think worries Professor Wacks about the judicial system under the Basic Law.
Our thinking about what Professor Wacks chapter.
The author gives considerable attention to how much power and independence the courts and judges will have after July 1, 1997. He shows concern about the ways in which the judicial process will operate in areas of separation of powers, interpretation and judicial independence. In places he is pleased that the draft Basic Law was amended in certain areas to improve and clarify areas of confusion and to spell out greater powers to the judicial branch.
Professor Wacks identifies major areas of the law for consideration and demonstrates how important it is that the good aspects of the legal system need to continue for what he sees as the most important consideration of all, that is, judicial independence. He argues very strongly indeed that the political branch, both in Hong Kong and on the mainland, must not interfere with the judicial process if the rule of law rather than the rule of man is to prevail.
Constitutionalism and Hong Kong under the Basic Law.
If you remember from earlier in this Unit we looked at the problem of constitution and constitutionalism. We established that a constitution usually sets out the rules and regulations for a society, establishes the government and its powers, a judicial system, the means by which the constitution can be interpreted or amended and the rights of the people. In the Hong Kong case it also discusses the powers of the SAR and that of the Central government.
We then asked whether or not a constitution is observed. If it is not then the constitution is only a piece of paper rather than an important document. If it is only a piece of paper then it tells us little or nothing about the political system which operates in a society. If on the other hand it actually stops the government exceeding the powers granted to it by the constitution. If it protects human rights and if the judicial branch makes decisions independent of the government or tells the government it is acting unconstitutionally and that government observes the judicial ruling then we have a constitution worthy of respect.
One possible problem is that the Basic Law is not entrenched. That is it can, if China really wants to do it, be easily amended, or even abolished, unlike the American constitution. Many academic writers point this out very clearly. We think that most people agree that the Chinese State constitution is not a powerful one if we use the test of the rule of law. However, there is a strong case for arguing that the provisions of the Basic Law will be observed for most of the time and it is unlikely that it will be subject to deliberate manipulation. What arguments can you put forward to agree this position. Try putting down some points on a sheet of paper and then check it against the list below that we have drawn up.
Arguments in favour of constitutionalism in Hong Kong.
Much, but not all of the Basic Law guarantees a high degree of autonomy to the HKSAR and the people of Hong Kong believe that so any changes would result in a loss of confidence. The economic and social contents of the Basic Law retain a capitalist system and the “Hong Kong way of life which is clearly what the people of the region want. Political groups in Hong Kong are very quick to point out what they believe to be breach in constitutional practice and the government takes note of this. Even in the first few months of creation of the SAR accepted public opinion and pressure group activity on the right to demonstate peacefully. The press and media are very free and quickly bring constituitonal issues to the public attention. The judicial branch is made up of highly professional and independent men and women who will not be bullied into a constitutional interpretation by government authorities. The government of the People's Republic of China want Hong Kong to work and are increasingly aware that gross interference in the domestic environment is dangerous. The whole world, and in particular the United States of America, is watching very carefully to make sure that the Basic Law is observed, particularly in the area of Human Rights. Also Taiwan, who the PRC want to bring back under Beijing authority, is looking carefully at the progress of the Basic Law to see whether it is observed or not.Put all the above points together (how many did you get?) and we think there is a strong case for having confidence in the Basic Law.
There is no question, however, that the Basic Law is still in its infancy and time will tell whether it will prove itself over time. There are no absolute guarantees that China will not use political influence to get what it wants, that judicial independence will remain in place or that breaches of the Basic Law will not take place. Indeed, no system can guarantee that. There will be accusations that the Basic Law has been broken by those who disagree with an act or an inerpretation of the Basic Law, but as long as there is a free media and the judicial branch remains independent there is plenty or room for hope. There will often be differences in grey areas, particularly between the areas of control and regional autonomy. There are a number of concerns in various parts of the Basic Law, such as the powers of the government and the human rights clauses but we will look at those in the later units.
Conclusion.
Let us now conclude with what we have learned in this unit. You should now understand the importance of the Basic Law as the constitution which outlines the major parts of the HKSAR political system. We know that it guarantees much of the old system and the preservation of the “Hong Kong way of life? In other words a high degree of autonomy. We know that it establishes the government structure and the powers given to the people. We know that it guarantees power to the people We know that it relies on an independent judiciary who will have to look at difficult areas and make interpretations. We know that its basic provisions will last for fifty years. We can now move on to look at the political structure of the HKSAR in the next set of units.