Basic Law: Back to basics

The Basic Law 30th Anniversary Legal Summit was successfully concluded last Tuesday, following the Hong Kong Legal Week in early November. We were very privileged to have so many renowned legal professionals, experts and academics with expertise in the Constitution of the People's Republic of China and the Basic Law to share their insights, which have greatly inspired the audience.

Despite the fact that the Basic Law has been successfully implemented in Hong Kong over the years, there are still people who do not fully comprehend the Constitution and the Basic Law. Some mistakenly believe that the Constitution does not apply in Hong Kong or even forget that “one country” is the precondition of the “one country, two systems” principle. There are also people deliberately making statement about the Basic Law selectively, leading to misapprehensions. We hope that by going “Back to Basics”, the theme of the summit, it could help all of us to understand the Basic Law accurately. At the summit, Vice-Chairman of the Committee for the Basic Law of the Hong Kong Special Administrative Region (HKSAR) under the Standing Committee of the National People's Congress (NPCSC), Mr Zhang Yong, and the Chief Executive respectively mentioned “learning the new by reviewing the old” and “staying true to the original intention”, as being relevant when we look into the basics of the Basic Law. I fully agree. In order to get the true essence and meaning of the Basic Law, it is necessary to remind ourselves of its original intent. The Basic Law has only two purposes which have been clearly stated in the preamble: upholding national unity and territorial integrity, maintaining the prosperity and stability of Hong Kong.

Mr Zhang’s speech provided us with a clear and proper understanding of the relationship between the Constitution and the Basic Law. He explained that the constitutional basis of the HKSAR is formed by the Constitution and the Basic Law. He reiterated that China is a unitary state, meaning all powers come from the Central Authorities, and the powers enjoyed by the HKSAR are authorised by the Central Authorities. This is how the “one country, two systems” have to be understood. He further elaborated on the legal hierarchy of the Constitution, the Basic Law and the laws of the Special Administrative Region, as well as that of the legislatures at the national and the regional and Special Administrative Region levels. With this background, we would then be able to return to the basics so as to properly understand the Basic Law.

The vice president of International Court of Justice, Judge Xue Hanqin, highlighted the contributions “one country, two systems” principle has made to the international law. The “one country, two systems” principle, which is an innovative concept, ensured Hong Kong’s smooth transition and return to the motherland. The Chinese and British governments resolved the dispute and their differences in looking at the situation that was left over from history by negotiations, leading to a peaceful settlement, thereby providing a good example for implementation of the international law.

At the panel discussion session, various legal experts shared with us the process by which the Basic Law was drafted and also their views on its legislative intent. Former Chairman of the Committee for the Basic Law of the HKSAR under the NPCSC, Mr Qiao Xiaoyang, clearly presented that the concept of the “Chief Executive System” has been adopted in Hong Kong’s political system and pointed out that the executive-led system is supported by a number of provisions in the Basic Law. Mr Qiao also provided six keys to study the Basic Law. Allow me to recap here. First, one must view the Basic Law from the national perspective. Second, it must be understood that the constitutional status of the Basic Law is from the Constitution. Third, the Basic Law is an “authorisation law”. Fourth, the Basic Law should be understood in its entirety. Fifth, the “one country, two systems” principle is the basic for implementing the Basic Law. And sixth, the Basic Law should be implemented with the people and their development in mind. No matter how familiar you are with the Basic Law, I encourage all of you to review the insightful presentations( by all the speakers of the summit.

I am delighted to know that the summit gave us an opportunity to walk through the interpretation of the Basic Law, and have a deeper understanding of the responsibility of maintaining national security under “one country” as well as the overall situation of national security laws in China. At the same time, with “one country” as the root, the “two systems” under the “one country, two systems” principle have also brought us tremendous benefits. CEPA has achieved numerous favourable results in terms of reciprocal benefits and complementarity, thereby opening up ample business opportunities for the legal sector. The mutual legal assistance and the interim measures arrangement have further enhanced Hong Kong’s international arbitration services by consolidating our status as a centre for dispute resolution.

I am indebted to all the speakers and guests who either physically attended the summit or joined us online. Their wisdom has enlightened the audience on how the Basic Law has been successfully implemented, allowing us to go back to the basics and reflecting on the original intent and purpose of “one country, two systems”. Looking forward, I wish we could join hands to consolidate the foundation of the Basic Law with a view to ensuring the continued success of "one country, two systems"

November 22, 2020