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Following is a question by Dr Hon Helena Wong and a reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (June 25):
Question:
The State Council points out in the White Paper on "The Practice of the 'One Country, Two Systems' Policy in the Hong Kong Special Administrative Region" (the White Paper) released on the 10th of this month that "the central government exercises overall jurisdiction over the HKSAR [Hong Kong Special Administrative Region]", and states the following clearly for the first time: "[s]upporting and guiding the administration of the chief executive and government of the HKSAR in accordance with the law. The chief executive reports his/her work to the central government on an annual basis, on the implementation of the Basic Law and other items for which he/she is accountable to the central government; and the state leaders give guidance to the chief executive on major matters related to the implementation of the Basic Law". The White Paper also points out that "[u]nder the policy of 'one country, two systems', all those who administrate Hong Kong, including the chief executive, principal officials, members of the Executive Council and Legislative Council, judges of the courts at different levels and other judicial personnel, have on their shoulders the responsibility of correctly understanding and implementing the Basic Law, of safeguarding the country's sovereignty, security and development interests, and of ensuring the long-term prosperity and stability of Hong Kong. In a word, loving the country is the basic political requirement for Hong Kong's administrators". In this connection, will the Government inform this Council:
(a) if it has approached the Central Government to gain an understanding on whether the statement that the Central Government exercises overall jurisdiction over the Hong Kong Special Administrative Region (HKSAR) implies that it can interfere with matters within the ambit of HKSAR's high degree of autonomy; if so, whether the Central Government has so interfered in the past and how it plans to interfere in the future;
(b) whether it has studied if the Basic Law contains any provision which provides a basis for the Central Government to give guidance on the administration of the HKSAR Government; if the study outcome is in the affirmative, of the details and the major matters in respect of which the Central Government guided the administration of the HKSAR Government in the past; and
(c) as some members of the legal profession have pointed out that, in variance with the Mainland, HKSAR implements a tripartite political system under which there is separation of executive, legislative and judicial powers with checks and balances among one another, and judicial independence is also one of the core values vital to HKSAR's success, whether the HKSAR Government has relayed to the Central Government that the implementation of the existing political system in HKSAR must be respected and the characteristics of such a system must be safeguarded; if it has, of the details; if not, the reasons for that?
Reply:
President,
The State Council published on June 10, 2014 the White Paper on "The Practice of the 'One Country, Two Systems' Policy in the Hong Kong Special Administrative Region", setting out comprehensively the implementation of "One Country, Two Systems" in the Hong Kong Special Administrative Region (HKSAR), the major achievements made, the policy measures by the Central Government to support the long-term prosperity and stability of the HKSAR and their effectiveness, as well as the long-established basic principles of the Central Government regarding Hong Kong to help various sectors of the community in having a better and comprehensive understanding of "One Country, Two Systems" and the Basic Law.
Article 31 of the Constitution of the People's Republic of China (the Constitution) stipulates that "[t]he State may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People's Congress in the light of the specific conditions." Article 62 of the Constitution stipulates the functions and powers exercised by the National People's Congress (NPC), including Clause 13: "[t]o decide on the establishment of special administrative regions and the systems to be instituted there". It was stated in the Preamble of the Basic Law that "[u]pholding national unity and territorial integrity, maintaining the prosperity and stability of Hong Kong, and taking account of its history and realities, the People's Republic of China has decided that upon China's resumption of the exercise of sovereignty over Hong Kong, a Hong Kong Special Administrative Region will be established in accordance with the provisions of Article 31 of the Constitution of the People's Republic of China, and that under the principle of 'one country, two systems', the socialist system and policies will not be practised in Hong Kong." Further, it is also stated that "[i]n accordance with the Constitution of the People's Republic of China, the National People's Congress hereby enacts the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, prescribing the systems to be practised in the Hong Kong Special Administrative Region, in order to ensure the implementation of the basic policies of the People's Republic of China regarding Hong Kong."
The Basic Law is a national law enacted by the NPC in accordance with the Constitution, and has constitutional status in the HKSAR.
The reply to the three parts of Dr Hon Helena Wong's question is as follows:
(1) and (2) Article 1 of the Basic Law stipulates that "[t]he Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China." Article 2 of the Basic Law stipulates that "[t]he National People's Congress authorises the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of the Basic Law." Chapter II of the Basic Law stipulates the "[r]elationship between the Central Authorities and the Hong Kong Special Administrative Region", including the powers directly exercised by the Central Authorities in accordance with the Basic Law, and also the powers delegated by the NPC to the HKSAR to exercise a high degree of autonomy in accordance with the provisions of the Basic Law.
Article 43 of the Basic Law stipulates that the Chief Executive shall be the head of the HKSAR, and shall represent the HKSAR. He shall also be accountable to the Central People's Government and the HKSAR in accordance with the provisions of the Basic Law. Article 48 of the Basic Law authorises the Chief Executive to lead the Government of the HKSAR; to be responsible for the implementation of the Basic Law; to nominate and to report to the Central People's Government for appointment of principal officials; to decide on government policies; to sign bills passed by the Legislative Council and to promulgate laws; to appoint or remove judges of the courts at all levels in accordance with legal procedures; to implement the directives issued by the Central People's Government in respect of the relevant matters provided for in the Basic Law; to conduct, on behalf of the Government of the HKSAR, external affairs as authorised by the Central Authorities, etc.
Since the establishment of the HKSAR, the Central Government has been acting in strict accordance with the fundamental principles and policies of "One Country, Two Systems", "Hong Kong people administering Hong Kong" and a high degree of autonomy, as well as the provisions of the Basic Law to support the Chief Executive and the Government of the HKSAR in administering Hong Kong in accordance with law. Similarly, the Government of the HKSAR has also been administering the affairs of Hong Kong in strict accordance with the "One Country, Two Systems" principle and the Basic Law.
(3) According to Article 2 of the Basic Law, the NPC authorises the HKSAR to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of the Basic Law. In addition, Articles 16, 17 and 19 of the Basic Law elaborate respectively on the executive, legislative and independent judicial powers, including that of final adjudication, enjoyed by the HKSAR. According to the overall design of the Basic Law, the political structure of the HKSAR is an executive-led structure headed by the Chief Executive. For example, according to Article 43 of the Basic Law, the Chief Executive shall be the head of the HKSAR and be accountable to the Central People's Government and the HKSAR in accordance with the provisions of the Basic Law. At the same time, Article 60 of the Basic Law stipulates that the head of the Government of the HKSAR shall be the Chief Executive of the HKSAR.
As such, the executive authorities and the legislature should regulate each other as well as co-ordinate their activities. On judicial independence, the Basic Law stipulates that the HKSAR enjoys independent judicial power, including that of final adjudication. In addition, Article 104 of the Basic Law also stipulates that when assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China.
The Government of the HKSAR has been upholding judicial independence, and the Central Authorities have all along respected the independent judicial power, including final adjudication, of Hong Kong in accordance with the Basic Law. The Government of the HKSAR believes that strict adherence to the Basic Law is the key to the successful implementation of the "One Country, Two Systems", "Hong Kong people administering Hong Kong" and a high degree of autonomy in Hong Kong. Since the reunification, the Central Authorities and the Government of the HKSAR have been handling the relationship between the Central Authorities and the HKSAR in strict accordance with the Basic Law.
Ends/Wednesday, June 25, 2014
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