Future of One Country, Two Systems in Hong Kong

The Future of the Principle of "One Country, Two Systems" in Hong Kong Presented by: Professor LIN Feng, School of Law City University of Hong Kong Date: April 29, 2021 Why Do I Choose This Topic? - China enacted the National Security Law for Hong Kong (NSL) in June 2020; - Its implementation has led to the argument that there is no longer "one country, two systems"; - Is it correct? - To what extent has the NSL changed "one country, two systems"? Arrangement of the Lecture - Historical Background - Incorporation of the Principle of "One Country, Two Systems" into Chinese Constitution and Its Implications - Hong Kong Basic Law and the Principle of "One Country, Two Systems" - Article 23 Legislation - Incidents Leading to the National Security Law (NSL) for Hong Kong - The NSL - The Impact of the NSL on the Principle of "One Country, Two Systems" - Conclusion Historical Background - Three Unequal Treaties in the 19th Century and the colony of Hong Kong: • Treaty of Nanking after the Opium War (1842): cession of HK island to the UK (actual cession happened in 1841); • The First Convention of Peking (1860): cession of Kowloon Peninsula to the UK; • The Second Convention of Peking (1898): lease of the New Territories to the UK for 99 years. • - The UK decided to apply all its laws (including legislation and case law) to HK. 1984 Joint Declaration between the People's Republic of China and the United Kingdom (Sino-British Joint Declaration) • The UK agreed to return HK to China; • China agreed to keep HK's capitalist system unchanged for 50 years. • There are 3 Annexes concerning:  China's basic policies regarding HK;  Sino-British Joint Liaison Committee (to prepare smooth transition of change of sovereignty); and  Land leases. • Issue: what's the legal status of the Sino-British Joint Declaration? Incorporation of the Principle of "One Country, Two Systems" into Chinese Constitution and Its Implications - Article 31 of 1982 Chinese Constitution • 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 National People's Congress in the light of the specific conditions. • This is the only constitutional provision relating to the principle of "one country, two systems" in Chinese Constitution. - Chinese Constitution and Its Relevance to HK • Chinese Official Position: Chinese Constitution and the Basic Law of Hong Kong together constitute the constitutional foundation of HK Special Administrative Region. • Question: in addition to Article 31 of Chinese Constitution, are there any other articles which are relevant to HK? Different views exist. - Some Basic Features of Chinese Constitution/Constitutional System • Republic; • Unitary state; • Socialist state: meaning of socialism has changed (adhere to socialism); • Leadership of the Chinese Communist Party is written in both the Preamble as well as formal provisions of the Constitution; • Democratic centralism; • The guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping theory, etc. - • People's democratic dictatorship; • Sovereignty of people; • Rule of law; • Protection of basic rights; • No separation of powers, but recognize division of powers; • New constitutional organ and power: supervision power; • No judicial enforcement of the Constitution in China. Meaning of "One Country, Two Systems": • Deng Xiaoping and "one country, two systems": In June 1984, during a meeting with the distinguished personalities of Hong Kong, Deng Xiaoping said the following: • Our policy is to implement 'One Country, Two Systems'. In short, it means in the PRC, the one billion Chinese are ruled under the socialist system while Hong Kong and Taiwan will be ruled under the capitalist system. (Deng Xiaoping, Selected Texts of Deng Xiaoping, vol. III, Beijing: People's Press, 1993, p.58.) - Implications: • There would be a through train in 1997: meaning HK would basically maintain its status quo when China resumed its sovereignty over HK on 1 July 1997; • Hong Kong would practice a different set of systems from mainland China, including social, economic, political and legal systems. All those systems were characterized as capitalist system whereas mainland China practices socialist system. • China would enact a national law as HK's Constitution to lay down the details of the systems to be practiced in HK after 1 July 1997. Hong Kong Basic Law and the Principle of "One Country, Two Systems" - The Basic Law • It is the most fascinating constitutional document; • It was enacted by the NPC in China which mainly adopts Chinese civil law system; • It is implemented in the HKSAR which is a common law jurisdiction; • It is where the two systems meet, converge and conflict with each other; • Its implementation provides rich materials for comparative study of constitutional law. - Status of the Basic Law in mainland China: • As a piece of national legislation, its position in the Hierarchy of laws in China is at the second level, just below Chinese Constitution. However since both the NPC and its Standing Committee can enact national laws, it is not clear whether the Basic Law (enacted by the NPC) is higher in the hierarchy of law than a piece of law enacted by the Standing Committee of the NPC. • Application nation-wide: mainland Chinese authorities should also abide by or should not contravene the Basic Law. - Status of the Basic Law in HKSAR: Ng Ka-ling case (CFA): • "Under the Chinese Constitution (Articles 57 and 58), the National People's Congress is the highest organ of state power and its permanent body is the Standing Committee and they exercise the legislative powers of the state. So their acts are acts of the Sovereign. The jurisdiction of the Region's courts to examine their acts to ensure consistency with the Basic Law is derived from the Sovereign in that the National People's Congress had enacted pursuant to Article 31 of the Chinese Constitution the Basic Law for the Region. The Basic Law is a national law and is the constitution of the Region." • "... The Basic Law is an entrenched constitutional instrument to implement the unique principle of "one country, two systems". As is usual for constitutional instruments, it uses ample and general language. It is a living instrument intended to meet changing needs and circumstances. • It is generally accepted that in the interpretation of a constitution such as the Basic Law a purposive approach is to be applied....". - Autonomy (high degree) (two systems) • Unitary system vs. high degree of autonomy • High degree of autonomy and enumerated powers • Art. 2 of the BL: general authorization clause  "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." - Independent Judicial Power, including that of Final Adjudication • Art. 19(1) of the BL:  "The Hong Kong SAR shall be vested with independent Judicial power, including that of final adjudication". - Power to Handle External Affairs • Articles 150-157 of the Basic Law (Chapter VII) • (Art. 13 of the BL:  "The Central People's Government shall be responsible for the foreign affairs relating to the Hong Kong Special Administrative Region.) - Other Powers as Authorized by the Central Authorities • Art. 20 of the BL • The Hong Kong Special Administrative Region may enjoy other powers granted to it by the National People's Congress, the Standing Committee of the National People's Congress or the Central People's Government. • Observation: the degree of autonomy granted to HK by China is higher than a state within a federal country. It's clear that the intention of the Basic Law is to separate the two systems (mainland Chinese and HKSAR) Article 23 Legislation - Article 23 of the Basic Law: • The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies. - Why is Article 23 legislation so controversial? - Who should have the final say on whether national security is involved? Mainland China or HK? - is it an issue for the sovereign to decide? - If there will be conflict of views from mainland China and HK, how to resolve it? Specifically speaking, could there be two separate systems of national security within one sovereign country? That's exactly the problem facing HK and China under the principle of "one country, two systems". - The First and Only Attempt of Article 23 Legislation in 2003: • The HKSAR introduced Article 23 legislation; • After the compromise from the HKSAR Government, there was not much dispute on the substance of the Bill concerning Article 23 legislation (it was called National Security (Legislative Provisions) Bill 2003); • Failed because the HKSAR Government refused to issue a white paper for consultation; • Around 500,000 people went on street to demonstrate for various reasons; • The HKSAR Government withdrew the bill from the Legislative Council at the last minute; • No intention to enact Article 23 legislation by any CE after Mr. Tung Cheehwa, the 1st CE. Incidents Leading to the National Security Law (NSL) for Hong Kong - Demand for CE Direct Election and Hong Kong Independence • Demand for direct election of the Chief Executive and all members of the Legislative Council; • Decision of the NPCSC on 31 August 2013: screening of candidates for the Chief Executive; • Occupy Central Movement (Umbrella Movement); • Disqualification of some newly elected legislative councilors for failing to taking their oath properly; - • NPCSC 5th Interpretation of Hong Kong Basic Law: Art. 103; • Prohibition of Hong Kong National Party (HKNP); • HKNP's appeal to the Executive Council: lost; • HKNP's decision not to apply for judicial review. Extradition Legislation and the Anti-extradition Movement • This proposed legislation by the HK Government has provoked the most serious, violent, and lasting social movement in HK's history: "Anti-extradition Movement". • Extradition arrangement between HK and foreign jurisdictions is within the definition of "external affairs", therefore within the scope of high degree of autonomy. • Extradition/surrender of fugitives within greater China region, i.e. mainland China, HK, Macao, and Taiwan operates under the principle of "one country, two systems". The NSL - The NPC authorized the NPCSC to enact the NSL in May 2020 (Decision of the National People's Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security (28 May 2020)); - Enactment of the NSL by the NPCSC in June 2020 and its inclusion in Annex III of the Basic Law (The Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (by the NPCSC on 30 June 2020)); - HKSAR is required to complete its Article 23 legislation. - Objectives • Article 1 This Law is enacted, in accordance with the Constitution of the People's Republic of China, the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, and the Decision of the National People's Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for Safeguarding National Security in the Hong Kong Special Administrative Region, for the purpose of:  Ensuring the resolute, full and faithful implementation of the policy of One Country, Two Systems under which the people of Hong Kong administer Hong Kong with a high degree of autonomy;  Safeguarding national security;  Preventing, suppressing and imposing punishment for the offences of secession, subversion, organization and perpetration of terrorist activities, and collusion with a foreign country or with external elements to endanger national security in relation to the Hong Kong Special Administrative Region;  Maintaining prosperity and stability of the Hong Kong Special Administrative Region; and  Protecting the lawful rights and interests of the residents of the Hong Kong Special Administrative Region. • Article 3  The Central People's Government has an overarching responsibility for national security affairs relating to the Hong Kong Special Administrative Region.  It is the duty of the Hong Kong Special Administrative Region under the Constitution to safeguard national security and the Region shall perform the duty accordingly.  3 Objectives: o Declare its authority over national security; o Fill in a legislative vacuum; o Establish relevant institutions in HK to enforce the HKNSL and other relevant legislation. - Institutions • In colonial times, there was a unit within the colonial government in charge of national security; • After China resumed sovereignty over HK until 29 June 2020, there has been no its equivalent - a vacuum; • The Central Government has always hoped that an institution on national security be established in HK; • The Anti-extradition Movement provides the justification. • Several national security institutions have been established under the NSL. • The Office for Safeguarding National Security of the Central People's Government in the HKSAR (Art. 48) • The Committee for Safeguarding National Security; • A Department for safeguarding national security with law enforcement capacity within the police; • A Specialized prosecution division within the DOJ. • The Office for Safeguarding National Security of the Central People's Government in the HKSAR  It performs its mandate for safeguarding national security and exercise relevant powers in accordance with the law;  Its staff: jointly dispatched by relevant national security authorities under the Central People's Government;  Its mandate includes: overseeing, guiding, coordinating with, and providing support to the Region in the performance of its duties for safeguarding national security; (art. 49)  It shall establish a mechanism of coordination with the Committee for Safeguarding National Security of the HKSAR to oversee and provide guidance on the work of HKSAR for safeguarding national security.  It shall take necessary measures to strengthen the management of and services for organs of foreign countries and international organizations in the Region, as well as non-governmental organizations and news agencies of foreign countries and from outside the mainland, Hong Kong, and Macao. - Observations on the Institutions • The Central Government has established its Office in the HKSAR; • Its Office supervises the work of the Committee; • The Committee's work will be under the guidance of the Advisor appointed by the Central Government (Mr. Luo Huining, the Director of the Central Liaison Office in the HKSAR, has been appointed the Advisor); • The Central Liaison Office shall play an important role; • The appointment of key persons needs approval of the Central Government; • The Central Government shall deal directly with 3 categories of national security cases; • The Central Government has more direct control over national security in HK than in Macao. - - Crimes and penalties • Secession • Subversion of State power • Terrorism • Collusion with foreign forces Observations: Intention behind Article 23 • Duality of national security systems under art. 23 legislation and the reasons for that; art. 23 gives HK an opportunity to have a firewall. • China's wish to maintain some consistency with regard to national security in mainland China and HK, but there is a lack of mechanism under art. 23 legislation to achieve that; • The solution I once proposed: voluntary legislation under art. 23 as soon as possible: it's to HK's benefits; or face danger of extension of China's National Security Law to HK. But I didn't expect swift enactment of the NSL for the HKSAR. The Impact of the NSL on the Principle of "One Country, Two Systems" - Constitutionality of the NSL for the HKSAR: China's claim that its Constitution and the Basic Law together constitute the constitutional basis for the HKSAR. We need to take that seriously now: not turn a blind eye on Chinese Constitution. It's a reality, though not ideal: better to amend the Basic Law if necessary. - The new NSL had made fundamental changes to the structure of national security systems under the principle of "one country, two systems": now 3 national security systems within one country - the PRC. Apart from mainland Chinese national security system and Macau's national security system under Article 23 of the Basic Law, and HK's new model: a national security system partially integrated with mainland China's national security system: in two ways: legislation and law enforcement institutions. - Consequence: • It's more desirable for mainland China in that through the NSL of HK, the two separate national security systems in HK and mainland China have been integrated. For HK, it's not desirable: it lost legislative authority over 4 crimes; but still has some control over other crimes. - Future: • Not as pessimistic as Carole: firewall is damaged; cautiously optimistic in that it's still possible to maintain two systems: if the three situations under Article 55 of the NSL don't occur, the enforcement of the NSL will still be in the hands of the HKSAR over the 4 crimes; - That depends on proper enforcement of the NSL by the HKSAR Government; interpretation is first in the HKSAR though final interpretation authority of the NSL is with the NPCSC. - I agree that Article 23 legislation should still be enacted but not on the four crimes already covered by the NSL. - Though firewall has been semi-removed, if HKSAR Government demonstrates proper implementation of the NSL, and the enactment of Article 23 Legislation, two systems and high degree of autonomy can be maintained, but without doubt less than under Article 23 without the NSL. Conclusion Concluding Remarks - The contents of the principle of "one country, two systems" have evolved over the years; - Clear separation between the two systems was the original intention behind the principle, but such clear separation has become an obstacle for closer relationship between HK and mainland China, e.g. under the Greater Bay Area strategic plan. The new emphasis is now on comprehensive jurisdiction of the Central Government of the PRC, especially the authority of the Central Government over national security issues and political developments in Hong Kong (i.e. electoral reform); - A new constitutional normalcy has taken shape, under which the NPC and the NPCSC are more willing to exercise its authority under the Chinese Constitution to address issues arising in HK which the HKSAR Government feels either reluctant or unwilling or incompetent to address; - Lack of a neutral arbiter of any disputes/legal issues is problematic and means mainland China (the Central Government) will have the final say; - This is a concern to some HK residents; very often solution is not in law but in politics and HK people need to be more mature politically and be willing to make a compromise if necessary.