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basic law

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University of Toronto St. George
Chin Lim

The Basic Law in Hong Kong Introduction The Basic Law of Hong Kong plays a role in the constitutional documents of Hong Kong in China. As a leading document in Hong Kong’s law, it was passed by China’s the 7 th National People’s Congress in 1990. And then, it further entered into force in 1997 while China drove away the former colonists of the UK. The Basic Law of Hong Kong was constituted according to the Sino-British Joint Declaration on the Question of Hong Kong, which was achieved by both the UK’s and China’s governments in 1984. It focuses on the fundamental policies of China toward Hong Kong. While the two parties – China and the UK – signed this Joint Declaration that accorded with the principle “One Country, Two Systems”, China’s socialist policies as practiced would not be used and spread in Hong Kong. Thus, instead of China’s socialism, Hong Kong would be a Special Administrative Region to continue its independent way and its prior capitalist system in following 5 decades after 1997. This law also tries to protect a large number of rights and freedoms of Hong Kong’s previous residents. As a Special Administrative Region in China, the status of Hong Kong has enable it to be a foreign policy range of most nations having relations with China and interests in Asian areas. The interests in Hong Kong have promoted great interests in the founding documents and relevant interpretation of Hong Kong. Thus, the Basic Law of Hong Kong, as a constitution, has created lots of debates 1 over democratization and its pace . In general, it is clear that higher democracy is related 1 Basiclaw (2010). The Basic Law Concerns Us All, Let’s Get Involved. Retrieved from to higher autonomy and vice versa, and lower democratization is related higher control by 2 China’s government . In terms of this reason, a significant interest is created within the politics of interpretation of the Basic Law in Hong Kong across the political scope, both in China mainland and Hong Kong. Thus, the appreciation of democratization in constitutional society performs an important role in encouraging this interest. So, the dynamic interaction of Hong Kong’s politics and China’s interests creates the politics of constitutionalism in Hong Kong. It is significant to understand the Hong Kong’s political reform debate so as to be aware of the emerging status of both China and Hong Kong. The Background of the Basic Law in Hong Kong The large degree of people’s support for Hong Kong’s democratic reform is seen as an important feature of the challenge provided by Hong Kong for China’s government. The values on human rights and democratization are usually different from the understanding of China’s government and its supporters about these values. Thus, the Basic Law of Hong Kong becomes the key point of this debate. It focuses on according with the principle “One Country, Two Systems” proposed by China’s government in the Joint Declaration between China and the UK . According to this Joint Declaration, Hong Kong 2 Michael, C.D.. “The Basic Law and democratization in Hong Kong”. Loyola University Chicago International Law Review, 3:20 (2005), p.p. 165 – 186 3 Ghai, Y. “The legal foundations of Hong Kong’s autonomy: building on sand”. The Asia Pacific Journal of Public Administration, 29:1 (June 2007), p.p. 3 - 28 is permitted being provided a high level of autonomy in a separate capitalist system from China’s socialist system. Based on this principle, Hong Kong is promised to work in a separate system with different rule of law, human rights and democracy from China. Thus, the political reform procedures have been established through the support for liberal democracy and the liberal constitutional contents in whole areas of Hong Kong . However, due to the effects of interventional tactics, the rules of law in Hong Kong had been placed under significant stress. And then, it has been gradually apparent, as generally appreciated by constitutionalists around the world. Thus, the rules of law in Hong Kong and the processes of interpretation created a mutually constitutive 5 relationship with constitutionalism’s democratic components . Thus, while democratic institutional commitment is particularly offered within both the Basic Law of Hong Kong and the Joint Declaration by China and the UK, it is clear that refusing to implement the political reform in Hong Kong went back on the very fundamental principle “One Country, Two Systems”. Thus, Hong Kong government always sought for the promised democracy based on this principle and for the political support by China government to achieve the stability of Hong Kong’s society. 4 Ghai, “The legal foundations”, p.p. 5 5 Martin, M.F. “Prospects for democracy in Hong Kong: the 2012 election reforms”. Congressional Research Service: CRS Report for Congress (2010), p.p. 1 – 14. In the period between 2004 and 2005, in terms of its political reform, Hong Kong faced with a critical moment related to its long-lasting constitutional development. The Basic Law of Hong Kong points out that after Hong Kong’s reunification with China, complete democracy can be achieved through the election of both the Legislative Council and the Chief Executive . In 2004, through interpreting the relevant provision of the Hong Kong Basic Law, China government firstly recognized that the terms “subsequent to the year 2007” and “after year 2007” in the Basic Law of Hong Kong could encompass the elect ion of the Legislative Council and the Chief Executive. Thus, the Chief Executive issued a specified report in 2004, focusing on the power to initiate political reforms in Hong Kong. Although this report accepted a change in the election methods would be necessary, it still paid large attention to political maturity of Hong Kong and then provided expectations about substantial democratization in Hong Kong. In the same year, in order to respond to this report, China’s Standing Committee of the National People’s Congress indicated that though the Election Committee was continually expanding in terms of its size the Chief Executive needed to continue to be selected through the Election Committee in 2007 and that the ratio of directly elected to functional legislators needed to be kept in a half-half range for the election of the Legislative Council in 2008 . This response by China government permitted increasing some room 6 Michael, “The Basic Law”, p.p. 166 7 Michael, “The Basic Law”, p.p. 167 for tinkering, but might have certain impacts on democratic reform in Hong Kong. Thus, Hong Kong government tried to seek for specified political reform, for example, through increasing the size of the Election Committee to 1,600 rooms with a great deal of additions derived from the District Councils’ members and through providing 5 extra functional and 5 directly elected seats to the Legislative Council with the functional seats for the members of the District Councils. The fact that China government continued to concern about Hong Kong’s democratic reform reflects that China government still had certain room for hesitation between the suspicions and supports on Hong Kong’s liberal- minded democratization. Today, these suspicions in terms of China government’s strategy for the Basic Law of Hong Kong have run out over time since the Hong Kong’s reunification with China. This is to say, although some minorities of Hong Kong’s politicians still brought pressure to security legislations under the Basic Law, coordination of the governments of both China and Hong Kong towards democracy and political reform has never changed while the global political climate has been stable over the years. However, while the Basic Law of Hong Kong was issued, Hong Kong government had to seek for more effective and appropriate ways to dealing with the conflict derived from cultural difference and political expectations, and to giving a favorable guidance for the public, both international and local, to reconsider Hong Kong’ polit
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