Hong Kong Basic Law

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".[16]

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.[17] 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".[18][19] 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).[20]

Zhang Xiaoming has also said the Office of the National Security Commissioner is not subject to the restrictions in Article 22.[21]

Except the Basic Law and the Constitution,[22]^:124 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.[23]^{:para. 18.2} 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.[24]

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.[25]

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.[26] The effectiveness of Chinese law inside Hong Kong territory was challenged in the same year in the Court of First Instance.[27] 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.[23]^{:para. 18.3}

Article 23 requires Hong Kong to enact local national security laws that prohibit treason, secession, sedition, subversion against the central government, theft of state secrets and foreign organisations from conducting political activities in Hong Kong. In 2003, the Hong Kong government tabled the National Security (Legislative Provisions) Bill 2003, which triggered widespread protest. The proposed legislation gave more power to the police, such as not requiring a search warrant to search the home of a suspected terrorist. After the demonstrations and the withdrawal by the Liberal Party of their support for the bill, the government shelved the bill indefinitely.

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.[28] The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident can be arbitrarily or unlawfully arrested, detained or imprisoned. Arbitrary or unlawful search of the body of any resident, deprivation or restriction of the freedom of the person are also prohibited. Torture of any resident and arbitrary or unlawful deprivation of the life of any resident shall be prohibited.[28]

In late 2015, five staff members of a bookshop selling books and magazines banned in mainland China disappeared (see Causeway Bay Books disappearances). At least two of them disappeared while in mainland China, one while in Thailand. One member was last seen in Hong Kong, eventually reappearing in Shenzhen, across the Chinese border, without the necessary travel documents. While reaction to the October disappearances was muted, as unexplained disappearances and lengthy extrajudicial detentions are known to occur in mainland China,[30] 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.[31][32][33] 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.[32] In June 2016, one of the five, Lam Wing-kee, revealed in a dramatic press conference that he and the others had been held without due process and that Lee Po had indeed been illegally abducted from Hong Kong, all by a shadowy 'Central Investigation Team' ("中央專案組" or "中央調查組").[34]

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.

The Basic Law guarantees a range of political rights, including the right to vote and stand for election.[35] The right to participate in public life under the ICCPR is also guaranteed through Article 39, which includes rights without unreasonable restrictions to vote and be elected in genuine and periodic elections by universal and equal suffrage.[36]

Article 45 and Article 68 guarantee a right to elect the Chief Executive of Hong Kong through universal suffrage of candidates nominated by a broadly representative committee and the universal suffrage of all Legislative Council members.[37]^:190 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".[38] Annex II to the Basic Law states the election methods for elections held after 2007, but does not state how they could be amended following that year.

The first indication of 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.[39]

The basic principles for interpreting the Basic Law are described in Article 158 and case law. According to Article 158(1), the NPCSC has the power of final interpretation. This is consistent with the NPCSC's general power to interpret Chinese national laws as provided by Article 67(4) of the Constitution of the People's Republic of China.[44]^:222 As a national law, the Basic Law was drafted in Chinese, and its Chinese version takes precedence over the official English version when discrepancies arise.[45]^:408 Before interpreting the Basic Law, the NPCSC must consult its subcommittee, the Committee for the Basic Law of the Hong Kong Special Administrative Region.[46]

Hong Kong courts may also interpret the Basic Law when adjudicating cases, when the provisions addressed are within Hong Kong's autonomy.[43] Hong Kong courts can also interpret provisions on matters the Central People's Government is responsible for or those related to the relationship between the Central government and Hong Kong, provided that the case is being heard by the CFA, that the interpretation will affect the judgments of the case, and that the CFA has sought a binding NPCSC interpretation on the matter.[43]

To decide whether an NPCSC interpretation should be sought, the CFA applies a two-stage approach based on Article 158(3) formulated in Ng Ka Ling v Director of Immigration. The first stage concerns the "classification condition", which is satisfied if the provision to be interpreted concerns either affairs within the responsibility of the Central People's Government or the relationship between the Central Authorities and Hong Kong.[47]^:32–33 Provisions satisfying the classification condition are "excluded provisions", suggesting that they cannot be interpreted by the CFA. When the court needs to refer to an excluded provision to construe a non-excluded provision, the CFA is not required to request an NPCSC interpretation on the excluded provision. Instead, the CFA applies the "predominant test", in which the court asks which provision is predominantly the one needed to be interpreted in the present adjudication.[47]^:33 The second test concerns whether the "necessity condition" is satisfied. The condition is satisfied when the court needs the excluded provision to be interpreted and that the interpretation will affect the judgment on the case.[47]^:30–31

Hong Kong courts use the purposive approach to interpret the Basic Law. Since Hong Kong's legal system is separate from that of mainland China, its courts are bound to adopt the common law approach to interpretation.[44]^:222 The courts construe the Basic Law's language to consider the provisions' context and purpose by finding its legislative intent;[44]^:223–224 the legislator's intent alone is not considered the legislative intent.[44]^:223 Ambiguities are resolved by accounting for the principles and purposes stated in the Chinese Constitution and other materials.[47]^:28 Yet, the courts treat the Basic Law as a "living instrument" that adapts to changing needs and circumstances.[47]^:28[48]^:125 While Hong Kong courts account for the historical context of the Basic Law, they also consider "new social, political and historical realities".[49]^:563

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.[42]^:632

The constitutional powers of the Hong Kong judiciary was first contested in HKSAR v Ma Wai Kwan,[50] 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.[42]^:633 The court reasoned that since Article 19 of the Basic Law did not expand its judicial powers and it had no power to review the validity of a sovereign act under colonial rule, it did not hold such power after the handover.[42]^:633 While Justice Gerald Nazareth agreed with the majority decision, he questioned whether the constitutional order of China and that of the United Kingdom were analogous. He also noted the Chinese constitution was not reviewed in detail during the trial.[50]^:352–353 Johannes Chan commented that the lack of judicial review power to review acts of Parliament reflected parliamentary supremacy, a doctrine borne out of unwritten constitutional systems.[51]^:376 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.[51]^:377

In the Ng Ka Ling case, the CFA tried to assert it has powers to review acts of the National People's Congress (NPC) or the NPCSC to determine whether they are consistent with the Basic Law.[42]^:635

The Hong Kong government later sought an interpretation of Articles 22 and 24 from the Standing Committee of the National People's Congress to avoid a potential influx of over a million mainland Chinese migrants (according to government estimates) into Hong Kong. This has triggered a debate on judicial independence in Hong Kong.