Commissioner Xie Feng's Article on South China Morning Post (Full Text)
2020/04/21

 

On 20 and 21 April 2020, the South China Morning Post published Commissioner Xie Feng's article on its website and in the print edition, which calls on the international community to fully and accurately understand the Basic Law and earnestly support its implementation. The following is the full text:

 

The international community needs a full and accurate understanding of the Basic Law

Xie Feng

 

"One country, two systems" is a pioneering initiative with no historical precedent and a major contribution China has made to the world. The Basic Law of the Hong Kong Special Administrative Region has codified the policy into law with concrete provisions. On the occasion of the 30th anniversary of the promulgation of the Basic Law, it is important to review the essence of the instrument, both to stay true to its original aspirations and to find the right way forward.

First, it is important to grasp the relationship between the Constitution of the People's Republic of China and the Basic Law of the Hong Kong Special Administrative Region.

The constitution of China, as the fundamental law of the state, has the supreme legal status and authority. It represents the legal origin of the system of special administrative region, and of the Basic Law of the Hong Kong special administrative region. To be specific, the Hong Kong special administrative region was established according to Article 31 of the 1982 constitution, which states that, "The state may establish special administrative regions when necessary".

The preamble of the Basic Law also makes it clear that, in accordance with China's constitution, the National People's Congress enacts Hong Kong's Basic Law, "prescribing the systems to be practised" in Hong Kong "to ensure the implementation of the basic policies of the People's Republic of China regarding Hong Kong".

Therefore, the constitution is the parent law, to which the Basic Law is subordinate. Hong Kong has the obligation to respect and abide by China's constitution.

Second, the Basic Law is essentially the legal embodiment of the "one country, two systems" policy.

"One country, two systems" is a basic state policy the Chinese government adopted and has stayed committed to. It was proposed, first of all, to realise and uphold national unity. The preamble of the Basic Law begins with the sentence that "Hong Kong has been part of the territory of China since ancient times", and lists "upholding national unity and territorial integrity" as the first aim of the enactment of this law.

All these show that "one country" is the foundation of and prerequisite for "two systems", while "two systems" is subordinate to and derived from "one country". Should the foundation be undermined, "two systems" would be out of the question. It is wrong to consider "two systems" on a par with "one country", and even more so to deny and oppose "one country" on the grounds of "two systems".

A major reason for the chaos in Hong Kong lies exactly in that forces trying to sow trouble in Hong Kong and China at large have dismissed "one country" and hence challenged the foundation of "one country, two systems".

"One country, two systems" has been adopted by the Chinese government and implemented in Hong Kong through enacting the Basic Law in accordance with the constitution. It is not something Hong Kong is intrinsically entitled to, still less "granted" by the United Kingdom.

Britain's colonial rule in Hong Kong, through the governors appointed by its monarch, lasted till the very last second on June 30, 1997, during which Hong Kong people had little say over their own affairs, not to mention a high degree of autonomy.

Third, the high degree of autonomy of Hong Kong is not an inherent power but is authorised by the central government. There is no division of power between the central government and the Hong Kong government. The central government supervises the implementation of "one country, two systems" in Hong Kong.

China is a unitary state, where the central government has overall jurisdiction over all local administrative regions. China has resumed exercise of sovereignty over Hong Kong in the full sense of the term, including overall jurisdiction.

According to the constitution and the Basic Law, such overall jurisdiction includes the rights to establish special administrative regions; organise the Hong Kong government; enact, amend and interpret the Basic Law; supervise the high degree of autonomy in Hong Kong; issue directives to the chief executive; decide on applying national laws locally and so on.

Meanwhile, Article 2 of the Basic Law stipulates that the NPC authorises Hong Kong 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".

Obviously, it runs counter to the spirit of "one country, two systems" and provisions of the constitution and the Basic Law to assume Hong Kong enjoys "full autonomy" under "one country" that exists in name only, and that the central government should leave Hong Kong alone except for its foreign affairs and defence.

It is also wrong to emphasise solely Hong Kong's high degree of autonomy while denying the overall jurisdiction the central government has, or even smear the central government's exercise of rights under the constitution and the Basic Law as an "interference in Hong Kong affairs", an "attempt to tighten control of Hong Kong" or an "erosion of the rule of law and autonomy of Hong Kong".

Fourth, the Basic Law has drawn a red line that is not to be crossed: any attempt to endanger national sovereignty, security or territorial integrity is strictly prohibited.

Safeguarding national security is crucial for fully and faithfully implementing "one country, two systems", and is a constitutional obligation of Hong Kong under the Basic Law.

Article 23 requires that Hong Kong "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 organisations or bodies from conducting political activities in the region, and to prohibit political organisations or bodies of the region from establishing ties with foreign political organisations or bodies".

Nearly 23 years since Hong Kong's return to China, the relevant laws are yet to materialise. Those trying to sow trouble in Hong Kong and China at large have not only demonised Article 23 and obstructed the legislative process, but also colluded in a bid to turn Hong Kong into an independent or semi-independent political entity, and a base for infiltration, sabotage, secession and subversion against China.

During the unrest following the proposed amendments to Hong Kong's Fugitive Offenders Ordinance last year, these forces trampled the Basic Law and Hong Kong's rule of law, challenged the central government's authority, committed vandalism, and begged for foreign interference in Hong Kong affairs and sanctions upon the city.

Manipulated by certain foreign countries, some plotted to overthrow the legitimate Hong Kong government through filibustering in the Legislative Council, street violence and collaboration with external forces.

A handful of extremists even openly waved flags, shouted slogans and made statements calling for so-called "Hong Kong independence". Such behaviour has severely endangered national sovereignty, security and territorial integrity, undermined the foundation of "one country, two systems", and challenged the authority of the Basic Law.

The practice of "one country, two systems" in Hong Kong, which is to remain unchanged for 50 years, has entered its medium term. Taking stock of the past 23 years, we can find that at the crux of the strife in Hong Kong is often a failure to fully and accurately understand the Basic Law. In particular, the troublemakers have deliberately skewed the principles and contents of the Basic Law, and obstructed its full and faithful implementation.

They have even played the victim, and accused instead the central government and the Hong Kong government of violating the Basic Law and the policy of "Hong Kong people administering Hong Kong", and eroding Hong Kong's high degree of autonomy. Therefore, it is imperative to get the fundamentals straight and set things right.

As supporters of the "one country, two systems" policy and stakeholders in Hong Kong's prosperity and stability, members of the international community need to grasp the Basic Law and earnestly support its implementation.

Only when the Basic Law is fully and faithfully implemented, and the systems and mechanisms related to the implementation of the constitution and the Basic Law in Hong Kong are improved to keep abreast of the times, can we ensure "one country, two systems" is applied without being bent or distorted, and will achieve greater success in the future.

 

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