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How to harmonize the legislation of special administrative regions and mainland China within the framework of the "One country - two systems" system - using the example of Hong Kong

Обновлено 15.09.2024 15:38

 

The article analyzes the principles of functioning of the Chinese system "One country - two systems", it examines the theoretical and legal foundations of the legislation of Hong Kong as a special administrative region within this system. Using the methods of critical legal research, dialectical materialism and complex analysis, the author comes to the conclusion that the key problem at the moment is the insufficient perfection of the constitutional supervision system in Hong Kong. This requires further improvement of the registration and verification system, as well as strengthening the verification system for compliance with the Constitution of the Basic Law of Hong Kong to ensure the unity of the Chinese legislative system.

 

Keywords: legislation, "One country - two systems" system, mainland China, Hong Kong Basic Law, constitutional verification system, registration and verification system.

 

In the 1970s and 1980s, Deng Xiaoping's concept of "One country, two systems" was formed, which meant that if one country existed, the socialist system would be implemented in the bulk at home, and the capitalist system would remain in Hong Kong and Macau for a long period of time, which would achieve the goal of peaceful national reunification. Under this unique political system, Hong Kong and Macau were granted the constitutional status of special administrative regions. A special administrative region is an administrative unit within China, which, according to the Constitution of the People's Republic of China and the laws of the People's Republic of China, has a special legal status and implements special social, political and economic systems. Consequently, special administrative regions have a high degree of autonomy. The principle of Hong Kong's autonomy is as follows: "Hong Kong is run by Hong Kongers themselves." Hong Kong has a different legislative system than mainland China, based primarily on the Basic Law of Hong Kong, which regulates various legal relations in the area <1>.

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<1> Zeng H.Q. Hong Kong's Autonomy: Concept, Developments and Characteristics // China: An International Journal. 2003. Vol. 1. Iss. 2. P. 313 - 325.

 

The Basic Law of Hong Kong was adopted by the National People's Congress (hereinafter - the National People's Congress) on the basis of Article 31 of the Constitution of the People's Republic of China and is a constitutional document of Hong Kong. Article 31 of the Constitution of the People's Republic of China states: "The State may, if necessary, establish special administrative regions, the systems of which are determined in accordance with the specific conditions of the NPC by law." From a historical point of view, the Basic Law of Hong Kong was originally developed on the basis of the Joint Declaration of China and the United Kingdom on the Issue of Hong Kong (hereinafter - the Declaration). In 1972. The 27th UN General Assembly adopted a resolution excluding Hong Kong and Macau from the list of colonies and confirming China's international legal sovereignty over these regions. In 1984, the United Kingdom was forced to adopt the concept of "One country, two systems" and officially sign the Declaration. It was in this Declaration that the Chinese Government systematically outlined its basic policy towards Hong Kong and promised to consolidate it in the form of the Basic Law of Hong Kong. April 4, 1990 The Basic Law of Hong Kong was adopted and it was decided to put it into effect on July 1, 1997. <2>

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<2> See: The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Adopted at the Third Session of the Seventh National People's Congress on 4 April 1990 Promulgated by Order No. 26 of the President of the People's Republic of China on 4 April 1990 Effective as of 1 July 1997).

 

Since its adoption, the Basic Law of Hong Kong has played an important role in regulating all aspects of life in Hong Kong. According to the Basic Law of Hong Kong, the legislation in force in Hong Kong, including common law, equity law, regulations, secondary legislation and customary law, is preserved unless it contradicts the Basic Law of Hong Kong or has been amended by the Hong Kong legislature. The national laws of the People's Republic of China, with the exception of those listed in Appendix 3 of the Basic Law of Hong Kong <3> regarding national defense and international relations, as well as other laws that do not fall under the autonomy of Hong Kong, are not applied in the special administrative region. If the NPC Standing Committee declares a state of war or in connection with the unrest in Hong Kong, which the local government cannot control and which threatens the unity and security of the State, the NPC Standing Committee may declare a state of emergency in the region, in which case the central Government may issue an order on the application of relevant national laws in Hong Kong. This is done to maintain national unity and security, as well as to ensure the stability and prosperity of Hong Kong. Thus, the Constitution of the People's Republic of China and the Basic Law of Hong Kong together constitute the constitutional basis and order of Hong Kong <4>.

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<3> These laws include the following:

1. The decision on the capital of the People's Republic of China, the chronology, the anthem and the flag.

2. The decision on the Founding Day of the People's Republic of China.

3. The Law on Citizenship of the People's Republic of China.

4. Regulations on Diplomatic Privileges and Immunities of the People's Republic of China.

5. Regulations on Consular Privileges and Immunities of the People's Republic of China.

6. The Law on the National Flag of the People's Republic of China.

7. The Law on the State Emblem of the People's Republic of China.

8. The Law on the Territorial Sea and the Adjacent Zone of the People's Republic of China.

<4> Tian F. The structural development of the constitutional order of "one country, two systems" - an overview and prospects for the 25th anniversary of the return of Hong Kong // Ocean of Academic Sciences. 2023. N 1. pp. 27-41.

 

The right to interpret and amend the Basic Law of Hong Kong actually belongs to the NPC and its Standing Committee. At the same time, Hong Kong has been granted the right to interpret the Basic Law of Hong Kong within its autonomous powers, which makes it possible to realize the unity of legislative relations between mainland China and Hong Kong. Mainland China and Hong Kong are in the relations of the center and the region within the framework of a unitary state. In accordance with the peculiarities of the model of distribution of legislative powers in unitary states, the Basic Law of Hong Kong and other laws must comply with the Constitution of the People's Republic of China and not contradict it <5>. This requires an effective system of constitutional oversight. Currently, constitutional supervision in China is carried out mainly through the registration and verification system. The registration and verification system implies that regulatory legal documents, after their development and publication, must be registered by the NPC Standing Committee at the appropriate or higher level within the established time frame. The Standing Committee of the National People's Congress conducts the audit on time in accordance with legislative standards and procedures. Within the framework of the registration and verification system, authorized bodies should check regulatory legal documents for legality, rationality, political expediency and constitutionality.

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<5> Cui W., Wan. J. Decentralizing Legislation in China's Law on Legislation Amendment // Hong Kong Law Journal. 2019. Vol. 49. Iss. 2. P. 665 - 696.

 

If the verification body finds that these regulatory legal documents contradict the constitution or laws, it may submit a written opinion to the body that adopted this document; joint verification meetings of the constitutional legal committee and other specialized committees may also be held to provide a written opinion to the body that adopted the document.

The existing legislation does not answer the question of whether the Basic Law of Hong Kong and laws passed by the Legislative Assembly of Hong Kong should be subject to registration and verification, but the central authorities have always stressed the importance of strengthening registration and verification of Hong Kong laws. Since 2019, the NPC Report on Registration and Verification Work highlights specific cases of registration and verification of local laws in Hong Kong <6>. Since the return of Hong Kong until September 2023, at least 697 laws passed by the Legislative Assembly of Hong Kong have been registered <7>. The Standing Committee of the National People's Congress noted that all registered local laws of Hong Kong have been pre-checked and no cases have yet been found where the law contradicted the Constitution of the People's Republic of China <8>.

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<6> Sun Ch. The space of functioning of the registration and verification system in Hong Kong // Studies of Hong Kong and Macau. 2023. N 3. pp. 15 - 33.

<7> The White paper "The practice of "one country, two systems" in the Special Administrative Region of Hong Kong".

<8>

 

Consequently, the Basic Law of Hong Kong is subject to standardization and supervision. However, the effectiveness of the implementation of the registration and verification system in Hong Kong must be assessed dialectically. First, some Hong Kong academics express concerns that the NPC Standing Committee's oversight of local legislation could weaken a high degree of autonomy and even undermine local judicial authority, so they do not support the implementation of the registration and verification system in Hong Kong. This means that the position of some Hong Kong residents regarding a high degree of autonomy conflicts with the position of the NPC Standing Committee on the issue of legislative relations. In July 2020, the Hong Kong National Security Act (hereinafter referred to as the Law) was adopted in Hong Kong in honor of the 23rd anniversary of the return of Hong Kong. The law is aimed at strengthening the stability of the Chinese political system by significantly limiting the autonomy of Hong Kong and eliminating channels of Western influence <10>. However, some argue that the Law undermines Hong Kong's autonomy <11>. Against this background, the promotion of the registration and verification system faces certain difficulties. Secondly, since the legislative system and legislative process of Hong Kong are borrowed from the common law system, the Basic Law of Hong Kong and other laws are already subject to the supervision of the Chief Executive and the courts of Hong Kong, which creates systemic difficulties for the promotion of the registration and verification system.

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<9> Yash. G. Hong Kong's New Constitutional Order: the Resumption of Chinese Sovereignty and the Basic Law. Hong Kong: Hong Kong University Press, 1999. P. 193 - 194.

<10> Hao T. Study on the nature, cause, characteristics and significance of the Hong Kong national security law // Cross-strait Leg Sci. 2020. Iss. 86. P. 41 - 52.

<11> Yu J. The United States Ineffective Response towards Hong Kong's National Security Law // Hastings Law Journal. 2022. Iss. 73. P. 161.

 

The existence of a high degree of autonomy in Hong Kong and the partial identification of Hong Kong residents with mainland China to a certain extent hinder the harmonization of legislative relations between central and local authorities. The position of the NPC Standing Committee is to promote registration and verification in Hong Kong to maintain the unity of the state system of laws, the legislative bodies of Hong Kong generally support the position of the Standing Committee. In March 2024, the draft basic law of Hong Kong under art. 23 - The "National Security Project" has become a vivid confirmation of this <12>. In order to preserve the unity of the legislative system between Hong Kong and mainland China, on the one hand, the central government should further promote the registration and verification system in Hong Kong, strengthen communication and consultations with the chief executive for the selection of bills; On the other hand, to explore the creation of a mechanism for resolving conflicts of legislative authority between the Standing Committee of the National People's Congress and the administrative and judicial authorities of Hong Kong in order to avoid the influence of checks and balances between the administrative and judicial authorities of Hong Kong on the reasonable exercise of legislative supervision by the center.

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<12> Article 23 of the Basic Law of Hong Kong means that Hong Kong must independently develop laws prohibiting any actions that threaten national security.