President Xi Jinping, in his July 1 keynote speech commemorating the 25th anniversary of Hong Kong’s return to China, emphasized that “Since Hong Kong’s return to the motherland, it has been reintegrated into China’s governance system, and a constitutional order was established with the ‘one country, two systems’ principle as its fundamental guideline. 

The central government’s overall jurisdiction over the SARs underpins their high degree of autonomy, and such autonomy bestowed by the law is fully respected and resolutely safeguarded by the central government”, which is based on the Constitution of the People’s Republic of China and the Basic Law of the Hong Kong Special Administrative Region.

This year’s Government Work Report (the Report) again stressed the importance of comprehensively, accurately and unwaveringly implementing the principles of “one country, two systems”, “Hong Kong people administering Hong Kong”, and a high degree of autonomy. The Report stressed the HKSAR ought to uphold the rule of law and constitutional order established in the Constitution and the Basic Law, and implement the principle of “patriots administering Hong Kong”.

The term “constitutional order” repeatedly appeared in the significant speeches of President Xi and the Government Work Report. This shows that it is essential for ensuring Hong Kong’s stability and prosperity as well as the accurate implementation of “one country, two systems”.

Unfortunately, since the handover, some individuals in Hong Kong and the West have been spreading one-sided, distorted and misguided interpretations of the Basic Law, either through malice or ignorance. Thus, this year’s Government Work Report emphasized the need to promote and educate the general public of Hong Kong on the constitutional order under “one country, two systems”.

“One country, two systems” is an innovative model and a significant achievement in China’s socialist modernization. However, in recent years, Hong Kong has experienced social unrest and external challenges that posed serious threats to its development and stability. Against this background, an accurate understanding of the constitutional order in Hong Kong is critical because it is the fundamental pillar for the success of “one country, two systems”.

Hong Kong has implemented the Basic Law since its return to China. Nevertheless, the essential role of the Constitution in the constitutional order of “one country, two systems” has only been attended to in recent years after the social unrest in 2014 and the riots in 2019.

Moreover, the constitutional order encompasses nationwide issues under “one country” such as the recent amendment to the Legislation Law of the People’s Republic of China as well as the operation of the National People’s Congress and its legislative mechanism. These elements are all intricately connected to the implementation of “one country, two systems” in Hong Kong.

According to Article 1 of the Constitution, “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”, and “Disruption of the socialist system by any organization or individual is prohibited.” In the Preamble, it is solemnly declared that “Taiwan is part of the sacred territory of the People’s Republic of China.”

The inseparability of the Communist Party of China’s leadership and socialism with Chinese characteristics is a crucial element of the constitutional order of “one country, two systems”. The CPC’s leadership must not be challenged by any individual or organization in the country; and nowhere in the territories of China may anyone promote “Taiwan independence” nor do anything to harm China’s sovereign unity.

Furthermore, Article 158 of the Basic Law states that the power to interpret the Basic Law is vested in the Standing Committee of the NPC (NPCSC). Article 159 specifies that the NPC has the authority to amend the Basic Law, and the power to propose amendments is vested with the NPCSC, the State Council and the HKSAR. And Article 48(8) mentions “The Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions: To implement the directives issued by the Central People’s Government in respect of the relevant matters provided for in this Law.” Obviously, the exercise of power by the central government, the NPC and its Standing Committee, as well as the State Council in different provisions of the Basic Law indicate the inherent power of the central authorities under “one country”.

With regard to the recording system outlined in the Legislation Law, it is worth noting that Article 17 of the Basic Law contains a similar concept. Specifically, laws enacted by the HKSAR’s legislature must be reported to the NPCSC for the record. If the NPCSC, after consulting the Committee for the Basic Law of the HKSAR under it, considers that any law enacted by HKSAR’s legislature is not in conformity with the provisions of the Basic Law regarding affairs under the responsibility of the central authorities or regarding the relationship between the central authorities and the HKSAR, the NPCSC may return the law in question but shall not amend it. Any law returned by the NPCSC shall immediately be invalidated. The record system described in Article 17 of the Basic Law aligns with the Legislation Law, with the addition of the unique feature of “one country, two systems”.

Another perspective is in relation to the more widely known provision in Article 18 of the Basic Law, which stipulates that national laws shall not be implemented in Hong Kong except those listed in Annex III of the Basic Law. The national laws mentioned in Article 18 and Annex III, as well as the Basic Law itself, and the National Security Law for Hong Kong, are second-tier national laws passed by the NPC, which is one level lower than the Constitution. The Constitution is the supreme law in the country, passed or amended by the NPC by a two-thirds majority of NPC delegates, while the amendments of national laws including the Basic Law need to be passed only by a simple majority of delegates. Any lower laws, including the Basic Law, must not contradict the Constitution. Article 158 of the Basic Law stipulates that the NPCSC has the inherent power to interpret the Basic Law, which is a power conferred from Article 67(4) of the Constitution. In layman’s terms, the relationship between “one country” and “two systems” can be compared to the relationship between the power supply and an electric switch. Without the power supply, there would be no light.

Hence, it is essential for the HKSAR’s executive, legislative and judicial branches to adhere to the constitutional order of “one country, two systems” while exercising their respective powers. It’s equally important for Hong Kong society to comprehend the legislative operations at the national level as they are intricately linked to the constitutional order of “one country, two systems”.

Article 1 of the Basic Law stipulates that Hong Kong is “an inalienable part of the People’s Republic of China”, and Article 12 stipulates that Hong Kong is “a local administrative region of the People’s Republic of China which shall enjoy a high degree of autonomy, and come directly under the Central People’s Government”. This is to empower the overall jurisdiction over Hong Kong of the central government. The NPC promulgated the Basic Law in 1990 in accordance with Article 31 of the Constitution; nonetheless, the administrative status of the HKSAR in the nation must be read together with Article 30 and Article 31 of the Constitution. These are the roots of the Basic Law, and leave no room for ambiguity.

The whole design of the constitutional order of “one country, two systems” is to achieve a good balance between the exercise of overall jurisdiction under “one country” and a high degree of autonomy under “two systems”.

Amendment of Legislation Law

Thus, a correct understanding of this constitutional order is crucial for the healthy development of “one country, two systems”. Hong Kong society must learn to appreciate that the better “one country” is upheld, the more “two systems” can flourish.

In this regard, it is necessary for Hong Kong society to get familiar with the Legislation Law of the PRC as it is an inherent component of the constitutional order of the whole nation and accordingly serves as a founding basis of “one country, two systems” and has a direct impact on the implementation of various provisions of the Basic Law.

The Constitution is the fundamental law of the country, and all lower laws must comply with the Constitution. One must note that the recent amendment of the Legislation Law has clarified the requirements for constitutionality of all lower-level legislatures, regulations or rules. This has played a significant role in China’s legal reforms in the current era, and is a testament to the great strides China has made in advancing the rule of law.

For Hong Kong, the improvement of the Legislation Law carries an enhancing impact on Hong Kong’s constitutional order.

The significance of the constitutional order has been emphasized by President Xi Jinping, who has demonstrated strong determination to govern the country and Hong Kong under the rule of law.

The author is an HKSAR member of the National People’s Congress and a member of the HKSAR Basic Law Committee.

The views do not necessarily reflect those of China Daily.