It’s wrong to say China’s Constitution “fully applies” to Hong Kong

By Yilu

* Focus should be how to better implement the Hong Kong Basic Law as a constitutional document

 

Director of the Legal Affairs Department of the Liaison Office in the HKSAR Wang Zhenmin, whose given name literally means “shock the people” in mandarin Chinese, did manage to give the Hong Kong people a shock, with just one sentence.

Speaking at a recent seminar, Wang said Chinese Constitution “fully applies to Hong Kong, apart from areas amended or replaced by the Basic Law”.

Wang Zhenmin

Does Wang’s argument stand, if we read through the articles of the Constitution, adopted in 1982?

This Constitution, in legal form, affirms the achievements of the struggles of the Chinese people of all nationalities and defines the basic system and basic tasks of the State, as it goes in the preamble.

The Hong Kong Basic Law, adopted in 1990, is the fruit of discussion between the central leadership in Beijing and representatives from all walks of life in Hong Kong.

Article 18 of the Basic Law goes: “National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law.”

So in theory, the Constitution, which is a national law, should not apply in Hong Kong.

What Wang may mean was the Constitution, which was above other laws, shouldn’t be included as a “national law”. This is actually the argument of a school of law experts.

But what he said in the remarks dismissed his own view.

How could areas of the Constitution, which is higher than the Basic Law, be amended or replaced by the latter? Wang himself used to say the Constitution and the Basic Law have ‘mother-son relationship’ in law.

Actually many contents of the Constitution won’t apply in Hong Kong.

Article 24 goes: “The State strengthens the building of a socialist society with an advanced culture and ideology by promoting education in high ideals, ethics, general knowledge, discipline and the legal system, and by promoting the formulation and observance of rules of conduct and common pledges by various sections of the people in urban and rural areas.

“The State advocates the civic virtues of love of the motherland, of the people, of labour, of science and of socialism. It conducts education among the people in patriotism and collectivism, in internationalism and communism and in dialectical and historical materialism, to combat capitalist, feudal and other decadent ideas.”

Clearly, it doesn’t apply in Hong Kong.

Article 55: It is the sacred duty of every citizen of the People’s Republic of China to defend the motherland and resist aggression. It is the honourable duty of citizens of the People’s Republic of China to perform military service and join the militia in accordance with law.

Yet Article 14 of the Basic Law stipulates that the Central People’s Government shall be responsible for the defence of the Hong Kong Special Administrative Region. Military Service Law of the People’s Republic of China was not included in the Basic Law’s Annex III.

There is no clear written rule of how Hong Kong citizens should perform military service either.

But if, as Wang Zhenmin said, the Constitution applies in Hong Kong, local citizens should fulfill this duty. Implementation becomes a question.

It is widely believed that most would agree that the Constitution is valid in Hong Kong, because its Article 31 is, after all, the origin of the Basic Law.

Article 31 goes “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 specific conditions.”

But saying the Constitution is applicable in Hong Kong not only causes controversies. It is not viable either.

I understand why Wang said the Constitution is applicable to Hong Kong. By saying so, he stressed, one, the central government’s full control of the Hong Kong as a systemic arrangement; two, the One Country principle.

But when Hong Kong already as the Basic Law as the constitutional document, the focus should be how to better implement it. If the Basic Law is no long applicable, a formal process should begin to amend it.

I would argue that it is quite necessary to preserve the authority of the Constitution in Hong Kong.

But the correct way of doing so is strengthening the education on the Constitution, in an effort to improve the understanding of the country’s constitutional order in the Hong Kong society.

It’s not viable to at all to apply the Constitution in Hong Kong. Such measure will cause controversies, especially among those pro-independence group members.

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Wang said he was speaking at the seminar in a “personal capacity”. His remarks were not published on the official website of the Liaison Office either.

He could say whatever he likes if he was still a law professor with Tsinghua University.

But as an incumbent official, he must be cautious when speaking publicly. Otherwise he remarks would impact on the Hong Kong society’s views of the One Country, Two Systems principle.

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