If you want to comprehend the constitutional order in Hong Kong, almost everyone focuses their attention on the Basic Law. This approach is premised on the valid understanding that the Basic Law is the directly operative constitutional document of the Hong Kong Special Administrative Region. What, though, is the primary source of the constitutional standing of the Basic Law within the HKSAR?
Hong Kong’s Basic Law is a law of the National People’s Congress (NPC). It was passed in 1990 under the authority conferred on the NPC by Article 31 of the Chinese Constitution (allowing for the creation of special administrative regions within the People’s Republic of China). The Basic Law provides the elemental, regional legal foundations for governing the HKSAR within the PRC under the “one country, two systems” formula. At the most fundamental level, the Basic Law draws its lifeblood from the Chinese Constitution of 1982.
Some have argued that there is an important difference between what is described as a “liberal constitution” and a “socialist constitution”. The former is treated as the benchmark of what an authentic constitution is, where a supreme law stands apart from and above the state and its government. The latter, meanwhile, may be portrayed as an instrument of the state which is put in place to further the interests of the state, above all.
In fact, all constitutions are crafted primarily by those wielding significant power at the time of their creations. China’s socialist Constitution reflects the political system from which it is derived, but within that context, it is plainly a supreme law. Similarly, the Basic Law reflects the separate Hong Kong political system and it also enjoys standing as an ultimate law within the HKSAR, where it is often referred to as a “mini-constitution”.
When you think about it seriously, the constitutional authenticity of the Basic Law relies on the legitimate standing of the Chinese Constitution as the supreme law within China. Undermine that standing in any way, and the ranking of the Basic Law as a definitive law is surrendered.
These striking disruptions have amplified the need to assess the fundamental role of the Chinese Constitution both within the HKSAR and more generally. Grave disorder at this level poses a challenge not just to the constitutional order of Hong Kong but also to the constitutional order of China
What though, is the role of the Sino-British Joint Declaration — could it not be the foundational source of the constitutional order in the HKSAR? A short comparative analysis can assist in answering this important question.
Australia came into being as a constitutional entity on Jan 1, 1901, after the previously separate British colonies on the continent agreed to join together within a new federal state. A number of constitutional conventions, which drafted the new federal constitution, were organized by the Australian colonies in the years prior to 1901. The new Australian Constitution was, however, a law passed by the UK Parliament in Westminster. The constitutional conventions were crucial in shaping the content of the Australian Constitution. The source of its supreme authority as a constitution in Australia was the passage of the Commonwealth of Australian Constitution Act in 1900, by the British Parliament, however.
The Sino-British Joint Declaration on the Question of Hong Kong was signed in December 1984. It is an important instrument that has played a pivotal role in shaping the content of the Basic Law, not unlike the role played by the Australian constitutional conventions. But it is, in essence, a precursor, auxiliary international treaty. It is Article 31 of the Chinese Constitution that has lawfully sanctioned the creation of the Basic Law — not the Joint Declaration. The ultimate basis of the oft-stated claim that the Basic Law is a constitutional instrument is its promulgation by the NPC under the power conferred on the NPC, by the Chinese Constitution, to enact this new pivotal law for the HKSAR. There is a clear correspondence here with the way the Australian Constitution drew its authority, as such, from its passage by the British Parliament in 1900.
The intense political turmoil in the HKSAR in 2019 (regularly accompanied by calls for revolution and independence) has triggered apprehension related to national security and territorial integrity. These striking disruptions have amplified the need to assess the fundamental role of the Chinese Constitution both within the HKSAR and more generally. Grave disorder at this level poses a challenge not just to the constitutional order of Hong Kong but also to the constitutional order of China.
Finally — and crucially — we need to remember that these two different political systems, underpinned by their respective constitutional instruments, are part of one country. There are central political distinctions between the two systems. These differences present a tension between two grundnorms. The renowned legal philosopher Hans Kelsen coined the German term grundnorm to refer to the fundamental norm, order or rule that forms an underlying basis for a legal system. Within the “one country, two systems” regime governing the establishment of the HKSAR, there is, however, a clear paramount grundnorm, which is embedded in the PRC Constitution.
A key aspect of the constitutional order in Hong Kong — namely, the role of the Chinese Constitution — has not been widely discussed so far. Powerful theoretical reasons and the events of 2019 confirm that this essential relationship will require, and will benefit from, conspicuously elevated scholarship in coming years.
The author is a visiting professor in the Faculty of Law, the University of Hong Kong.
The views do not necessarily reflect those of China Daily.