Summary 3. Constitutional Relationship between the HK & PRC (LAWS1100)
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Course
Constitutional Law (LAWS1100)
Institution
The Chinese University Of Hong Kong
Topics include
- The constitutional system of the PRC (Relevant articles from the PRC Constitution and commentary)
- the most relevant PRC constitution articles to Hong Kong
- Basic law articles and commentary on how they relate to the relationship between the HKSAR and PRC
3. CONSTITUTIONAL RELATIONSHIP BETWEEN THE HK & PRC
1. CONSTITUTIONAL SYSTEM OF THE PRC
PRC CONSTITUTION – KEY PRINCIPLES
Article 1 (The form of the State): The People’s Republic of China is a socialist state under the People’s democratic
dictatorship led by the working class and based on the Alliance of Workers and Peasants. The socialist system is
the basic system of the People’s Republic of China. Disruption of the socialist system by any organisation or
individual is prohibited.
Two major difference between Socialism and Capitalism reflected in Article 1:
1) There is no election for important positions – Democratic Dictatorship
v The people’s dictatorship serves the interest of the working class
v the idea of socialism originally was that democracy and liberalism were hostage to capitalists.
Ø Wealthy people and elites would basically control democratic elections and advance their own interests
Ø Argument from the socialist perspective is that democracy is exploitive
2) In the socialist worldview, individual rights take a backseat to the community (this is reflected in the final sentence
of Article 1)
v The idea is that the government works for everyone, and the unit that we care about is society individuals are
sublimated and individuals are lesser in importance then the society as a whole.
Article 2 (Power to the People): All power in the People’s Republic of China belongs to the people. The National
People’s Congress and the local people’s congresses at various levels are the organs through which the people
exercise state power. The people administer State affairs and manage economic and cultural undertakings and
social affairs through various channels and in various ways in accordance with the provisions of law.
v The party is broadly representative of the people, even if the people didn’t elect them
v NPC serves the people, and by delegating power to the lower levels, the local congresses also serve the people
Article 3 (Democratic Centralism): The State organs of the People’s republic o China apply the principle of
democratic centralism. The National people’s Congress and the local people’s congresses at various levels are
constituted through democratic elections. They are responsible to the people and subject to the supervision. All
administrative, judicial and procuratorial organs of the State are created by the people’s congresses to which they
are responsible and by which they are supervised.
v Procuratorial means prosecutorial – similar to the DOJ
v Principle of Democratic Centralism
Ø The power flows down from the NPC to all the local, provincial, and local level congresses.
Ø Everything comes from the NPC, which is controlled by the CP
Ø Centralised method of control and power flowers down
v Note that it says it is constituted by democratic elections – it is chosen by election within the party
Article 5 (The Rule of Law): The People’s Republic of China governs the country according to law and makes
it a socialist country under rule of law.
Judicial independence (Two contradicting articles)
v Article 126: the people’s court exercise judicial power independently, in accordance with the provision of law, and
not subject to interfere by any administrative organ, public organisation or individual
v Article 128: The Supreme People’s Court is responsible to the National People’s Congress and its Standing
Committee. Local People’s Courts at various levels are responsible to the organ of state power which created them
PRC Constitution Issues: Normative Complexity – it’s not clear exactly what the hierarchy of laws is in China. In theory,
the NPC and NPCSC’s laws are the highest level of laws, followed by administrative rules and regulations, and then
there are other kinds of background norms which has the potential for inconsistencies.
PRC CONSTITUTION : MOST RELEVANT ARTICLES
31 The 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 NPC in the light of specific conditions
62 The NPC exercises the following functions and powers:
(2) To supervise the enforcement of the constitution
(12) To approve the establishment of provinces, autonomous regions, and municipalities directly
under the Central Government
(14) To decide on question of war and peace.
67 The NPCSC exercises the following functions and powers:
(1) To interpret the Constitution and supervise its enforcement
(2) To enact and amend laws.
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, 2. CONSTITUTIONAL RELATIONSHIP WITH THE PRC
2A. General Principles – Basic Law
Preamble: Upholding 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. The basic policies of
the People's Republic of China regarding Hong Kong have been elaborated by the Chinese Government in the Sino-British
Joint Declaration.
v The Preamble provides the legal basis of the Basic Law with reference to Article 31 of the PRC constitution and
the Joint-Declaration
v Sino-British Joint Declaration, Section 3 – states that those basic policies which are further elaborated in annex I
Ø Emphasises a high degree of autonomy, especially in economic and legal areas, provided that such autonomy
does not threaten the territorial integrity and unity of PRC and inalienability of HK
2A(i) Chapter 1 of the Basic Law
1 The Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China.
2 The National People's Congress authorizes 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 this Law.
3 The executive authorities and legislature of the Hong Kong Special Administrative Region shall be composed of
permanent residents of Hong Kong in accordance with the relevant provisions of this Law.
4 The Hong Kong Special Administrative Region shall safeguard the rights and freedoms of the residents of the
Hong Kong Special Administrative Region and of other persons in the Region in accordance with law.
5 The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the
previous capitalist system and way of life shall remain unchanged for 50 years.
8 The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate
legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any
amendment by the legislature of the Hong Kong Special Administrative Region.
11 In accordance with Article 31 of the Constitution of the People's Republic of China, the systems and policies
practised in the Hong Kong Special Administrative Region, including the social and economic systems, the system
for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and judicial
systems, and the relevant policies, shall be based on the provisions of this Law.
No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene this Law.
v Chapter 1 is basically how autonomous Hong Kong is with the exception of Article 1
v Article 1 – HKSAR as an inalienable part of the PRC – expressing the ‘one country’ part
v Article 2 – HKSAR has a high degree of autonomy and independence in political arena – expressing the ‘two
systems’ aspect
v Article 3 – executive authorities and legislature consisting of permanent residents of HK – another provision
demonstrating the autonomy of Hong Kong
v Article 4 – HKSAR shall safeguard rights and freedoms – appearing only in Hong Kong, again demonstrating
difference.
v Article 5 – Socialist system and policies not implemented in HKSAR and this shall remain unchanged for 50 years
– ‘two systems’ aspect again, independence shown
v Article 8 – laws previously in force – independence shown
2B. Economic Matters – Chapter V of the Basic Law
106 The Hong Kong Special Administrative Region shall have independent finances.
The Hong Kong Special Administrative Region shall use its financial revenues exclusively for its own purposes,
and they shall not be handed over to the Central People's Government.
The Central People's Government shall not levy taxes in the Hong Kong Special Administrative Region.
107 The Hong Kong Special Administrative Region shall follow the principle of keeping the expenditure within the
limits of revenues in drawing up its budget, and strive to achieve a fiscal balance, avoid deficits and keep the
budget commensurate with the growth rate of its gross domestic product.
108 The Hong Kong Special Administrative Region shall practise an independent taxation system.
The Hong Kong Special Administrative Region shall, taking the low tax policy previously pursued in Hong Kong
as reference, enact laws on its own concerning types of taxes, tax rates, tax reductions, allowances and
exemptions, and other matters of taxation.
109 The Government of the Hong Kong Special Administrative Region shall provide an appropriate economic and
legal environment for the maintenance of the status of Hong Kong as an international financial centre.
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