in Cora Chan & Fiona de Londras (eds), China's National Security: Endangering Hong Kong's Rule of Law? (Hart Publishing, March 2020),
Chapter 2, pp 19-40
Chapter 2, pp 19-40
Introduction: In July 2017, Hong Kong celebrated the 20th anniversary of the establishment of the Hong Kong Special Administrative Region (HKSAR) of the People's Republic of China (PRC). In October 2017, the 19th National Congress of the Chinese Communist Party was convened, at which General Secretary Xi Jinping outlined a grand vision for China's strategic development all the way up to the middle of the twenty-first century. The vision was termed 'socialism with Chinese characteristics for the new age. It consists of 14 policy components, and the 'one country, two systems' policy is one of them. What was this policy originally and how has it been implemented in the case of Hong Kong? What is the status of Hong Kong as a special administrative region (SAR) of the PRC? What is the nature of Hong Kong's 'high degree of autonomy' - a term used in both the Sino-British Joint Declaration on the Question of Hong Kong (1984) and the Basic Law of the HKSAR of the PRC (1990)? How does the Basic Law seek to protect China's national security and limit Hong Kong's autonomy for this purpose? This chapter explores these questions.
Although the HKSAR is our focus, it should be borned in mind that Hong Kong is one of the two SARs of the PRC, and the other SAR is Macau. Following the reunification of Hong Kong and Macau with China in 1997 and 1999 respectively, the structure of the PRC consists of a national or central government, and at the level directly below it, 27 provincial governments (including the governments of five autonomous regions but excluding Taiwan), four governments of municipalities directly under the Central Government, and two governments of the SARS (Hong Kong and Macau).
Chinese scholars have always stressed that PRC is a unitary state. It is not a federal system; there is nothing in the PRC Constitution that provides for a formal division of power between the national Government and the provincial, municipal, and SAR governments. That is, there is no constitutional limitation on the capacity of the national Government to exercise power with regard to any matter within any province, city or SAR pf the PRC. However, since the enactment of the Basic Laws of the HKSARs of Hong Kong and Macau, the powers that the Central Government may exercise with regard to the SARs have been constrained by the Basic Laws. It can be argued that the concept of an SAR within the PRC with a high degree of autonomy, and the related policy of 'one country, two systems' represent a substantial modification of the original model of a highly centralized unitary state...