Talk:Hong Kong Basic Law

Duplicate

This article is a duplicate with Basic Law of Hong Kong. olivier 10:54 May 5, 2003 (UTC)

Yep, I noticed that afterwards. It was on the Requested Articles page so I figured it hadn't been done. The old version was a bit scant: I'll have a shot at re-directing the reference to the new version.David Stewart

Sounds good. Maybe you can also include the little information of the old article into the new. olivier 11:21 May 6, 2003 (UTC)

Will do. I'll have to have a play in the sandbox first, to work out how to do it, so it might be a few days. By the way, I've noticed you editing some of my entries over the past weeks - thank you for cleaning up my mistakes. I'm still getting used to the style and haven't got a handle on the indigeneous coding here. David Stewart

Welcome, welcome. Glad to see someone writing interesting things about HK! olivier 05:05 May 7, 2003 (UTC)

Authority of Basic Law

Move the following (blue background) here:

There is some controversy about the nature of the law. It is the position of the People's Republic of China and most legal experts in Mainland China, that the Hong Kong Basic Law derives its authority from the Constitution of the People's Republic of China and that as such it is a domestic law which could in principle be revoked and amended by the PRC. A contrasting view is that the Basic Law derives its authority directly from the Sino-British Joint Declaration, this would give it co-equal status with the PRC Constitution and would make amendments to and violations of the Basic Law an international rather than a domestic affair.

I would be interested for any pointer to such controversies. That the authority of something as fundamental as the Basic Law in Hong Kong is a serious constitutional issue (it could uproot the entire system in Hong Kong if challenged) and it seems incredible that this can be left in an ambiguous state described above. Specifically

• From the aspect of international law, the sovereignty of a state provides that it has supreme political authority over its internal affairs (save for exceptional humanitarian / human rights matters.) For a sovereign state, the authority for a constitutional framework applied to a part of the country must come solely from within the state, though legitimate institutional means. Therefore, unless it is considered that the National People's Congress or the PRC Constitution is illegal (in which case the Basic Law as adopted by NPC has no authority anyway), or China does not have its own sovereignty or sovereignty over Hong Kong, the authority of the Basic Law must be derived from within the PRC, rather than through an international instrument, and its modification would not involve overseas authorities.

• From a perspective of the PRC constitution, the Basic Law is adopted by the NPC which is the highest organ of state power. (Article 57 of PRC constitution). The NPC and its Standing Committee exercise legislative powers of the state. (Article 58). Basic Law is enacted pursuant to Article 31 and adopted by the NPC. The line of authority is clear and straight forward, unless one fundamentally challenge the legitimacy of the PRC constitution or the NPC. Again if such was the argument, the NPC is not legitimate and the Basic Law lose the authority anyway. It would be illogical to attribute authority to the Basic Law while at the same time assigning it a source different from where Law comes from.

• The PRC Constitution states clearly, in Article 5, that "No laws ... may contravene the Constitution." No one acting ultimately under the authority of the Constitution, including the Premier of PRC, could have signed a Joint Declaration to give authority to something "co-equal" with the constitution.

• As far as I know there is no such controversies also among the legal sector in Hong Kong on the position of the Basic Law. This position is also adopted by the Court of Final Appeal in HK. (See, for example, judgment of the right of abode case on Jan 29 1999 [1] (.doc file) which is the controversial case as memtioned below. It states clearly the constitutional basis on which the Basic Law is enacted) For all possible circumstances where the Basic Law would be interpreted (which could occur only in NPC and in CFA), therefore, this is the final legal position.

• In fact the Basic Law itself provides for mechanism for its own amendment (Article 159). If the Basic Law cannot be amended then such provisions violates its own legal authority.

My understanding of the legal position is that the Basic Law is enacted pursuant to PRC constitution and adopted by the NPC. While PRC declared in the Joint Declaration that basic policies of HK will be specified in the Basic Law, that is not the legal basis for the Basic Law. Amendments to the Basic Law can be made (and in fact it is necessary to amend Annex I and II for the constitutional development after 2007). Whether an amendment would violate the Joint Declaration is a completely separate issue, which concerns whether China violates its international obligation to comply the instrument, rather than a matter of whether it acted outside of its authority. This is a matter of established legal positions rather than POV.

Thus far no one has attempted to create a confrontation over this issue. In practice, the PRC has the military ability to overturn the Basic Law, but would suffer huge consequences both economic and diplomatic, if it did so.

Consequent to the above, this is unnecessary and too far-fetched. In fact, the Basic Law is enacted by the NPC and the NPC, not the military, could overturn the Basic Law. But this does not seem even remotely possible.

One important case with implications concerning this issue was the right of abode issue. In rendering its decision the Court of Final Appeals on Hong Kong appeared to state that the Basic Law had higher status than PRC domestic law and hence the CFA could invalidate PRC law that was in conflict with the Basic Law. Subsequently, the CFA issued a statement that it did not mean to challenge the authority of the National People's Congress of China, and in this case, the Standing Committee of the National People's Congress of China overturned the CFA's ruling in the immigration cases.

Refering to the actual text of judgment at the link above, the authority of enactment of the Basic Law from the PRC constitution is affirmed rather than questioned. The controversial issue there is not the nature of the Basic Law vis-a-vis the mainland constitution or mainland laws, but whether the court of Hong Kong can "determine whether an act of the National People's Congress or its Standing Committee is inconsistent with the Basic Law", within the constitutional jurisdiction of the court. This concerns more with the power of the court in Hong Kong (whether it could hold acts of the NPC to be invalid as far as the Hong Kong legal system is concerned), rather than the nature of the laws in the national or international context. (Interestingly, it held that arrangements agreed by the Sino-British Joint Liasion Group invalid under its interpretation of the Basic Law)

Upon request for clarification from the Security of Justice of Hong Kong, the CFA did issue a statement (extracted below) reaffirming the authority of the NPC but without compromising its earlier judgment (note the final emphasis I added). The PRC seems satisfied with this and there is no further followup on this particular point.

The Court's judgment on 29 January 1999 did not question the authority of the Standing Committee to make an interpretation under Article 158 which would have to be followed by the courts of the Region. The Court accepts that it cannot question that authority. Nor did the Court's judgment question, and the Court accepts that it cannot question, the authority of the National People's Congress or the Standing Committee to do any act which is in accordance with the provisions of the Basic Law and the procedure therein.

What the NPCSC further "overturned" is another issue, the interpretation of Articles of the Basic Law as already described in the right of abode article.

Sorry for long-windedness but these important constitutional issues as far as HK is concerned needed to be clarified.

-Hlaw 04:54, 12 Jan 2004 (UTC)

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Extradition

Someone added a markup comment in the controversy section dealing with extradition about whether that was really controversial. Since I added it, I will say "YES!" emphatically. Extradition and concurrent jurisdiction was one of the first big loophole issues in the basic law. That most of the "discussion" happened several years ago doesn't make it less controversial. It is still a big issue among legal professionals in HK that care about autonomy. It is also an issue among international "rights" groups and such. As it should be - imagine you are a common HK resident taking a shopping trip to Shenzen, and you come back to HK and are accused of a crime that occured in HK. The PRC may claim the right to try you! The PRC has a much less stringent judicial system than HK and much more severe sentences (like death). The PRC also claims the right to try crimes against the state in the PRC rather than HK - a thought very un-nerving to those whose political activities, while legal in HK, are not legal in the PRC. SchmuckyTheCat 17:11, 20 Apr 2005 (UTC)

• Re: Extradition

I am the one who added such tag.. For me, I think this is not a controversial issue about the basic law is because that the Article 95 that passage it referred to is merely allowing such agreement to exist, using the term may, thus it's requiring neither the Hong Kong nor the PRC Government to sign, or to have a proactive role to have an Extradition agreement.

Thus, for me, I think this is not such an controversial issue about the Basic Law, rather, it's something about the Hong Kong Legal system.

Btw, as far as I can recall, the PRC government only claim the rights to trial a suspect when part of the crime is being commiited in the mainland, it never claim the rights to trial for crimes which is only being committed in Hong Kong. Hunter 01:18, 21 Apr 2005 (UTC)

it claims the right to try "crimes against the state" committed only in Hong Kong. You can see how troubling that is, even if it has not done so. And "it's about the legal system, not the law" is rather circular. the basic law is the authority of the legal system. that the basic law set up "one country, two jurisdictions" but did not address cross-jurisdiction set up this controvery, which is why it is written here. that the basic law didn't require, or define for itself, extradition is a huge omission! SchmuckyTheCat 15:26, 21 Apr 2005 (UTC)

This is because of that such agreement never exited even before the handover, so nobody is thinking too much about it.. I think it's something nice to add, but it's not so controversial...

If you really have to go the omission point of view, then you should not have referred Article 95, because it's merely allowing such agreement to exist. Rather, you should try to point out it's an omission and then state when(what year) such heated debate existed, and providing point of views from both sides in the article. Hunter 15:46, 21 Apr 2005 (UTC)

I really would recommend the removal of that Extradion passage. However, I think both of us are insisiting our view, I hope there's some neutral third paties can participate in this discussion, so as to give a some more ideas about this. --Hunter 12:37, 23 Apr 2005 (UTC)

My HK$0.02 -- Like Article 23, this isn't about the law, but about trust in the legal system. DOR (HK) (talk) 06:33, 3 March 2008 (UTC)

Controversial issues

I have updated the section on Article 107 to reflect the 2007 pay increases and 2008/09 budget. DOR (HK) (talk) 06:29, 3 March 2008 (UTC)

"See Also" section

It used to be "See Also: Basic Law. I deleted the section because I don't really see the connexion between that article and this. True, that article did mention Hong Kong (briefly), but everything about Hong Kong there can be found in this article. 199.111.230.195 23:53, 30 November 2005 (UTC)

Fair use rationale for Image:Blcover.jpg

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BetacommandBot (talk) 04:25, 12 February 2008 (UTC)

Expiration Date?

What happens on July 1 2047? Does the HKBL have an expiration date? 68.227.174.198 (talk) 22:14, 28 June 2013 (UTC)

List of NPCSC interpretations

[2] Where can I find a list of all the decisions of the NPCSC interpreting the Hong Kong Basic Law?----Bancki (talk) 09:42, 18 November 2019 (UTC)

What Regina Ip does or does not say

This is a WP:BRD discussion following on this revert.

It was suggested in the edit summary there that this be taken to the talk page. That suggestion mentions a similar previous suggestion which I had not seen and which, I'm guessing, involved another editor. I'm writing here only about my reverted edit (this one).

I made my edit because the source my edit replaced and which its reversion has restored is incomprehensible to me; I'm pretty much monolingual in English. As far as I can tell, though, that source does not support an assertion about what Regina Ip said, but supports only what she is said to have said by persons speaking in Chinese (Mandarin, I guess, or perhaps Cantonese, I'm not sure which) in the cited video. I might be wrong about that -- I didn't watch the video carefully and didn't listen to its audio at all after noting that it was in a language I don't understand. Incidentally, I don't have a clue about who Regina Ip might be except what I've gleaned from looking at this article.

I suggest that this reversion be undone or that a better supporting source be cited. Wtmitchell (talk) (earlier Boracay Bill) 10:46, 8 May 2020 (UTC)

But why should Ip's views be included in the first place? She is not a constitutional lawyer or legal scholar, she has no legal power to interpret the Basic Law, she is not from the Chinese government. Her views don't help people understand the separation of powers in Hong Kong. Squirist (talk) 07:15, 10 May 2020 (UTC)