Basic Law is not above Constitution

An official of the Central People’s Government’s Liaison Office in the Hong Kong Special Administrative Region on Saturday said that in Hong Kong affairs, the country’s Constitution automatically applies to matters that are not covered by the Basic Law. It should be noted that this is not the first time a central government official has made this point clear. As a matter of fact, Wu Bangguo, then a member of the Standing Committee of the Political Bureau of the Communist Party of China’s Central Committee and chairman of the National People’s Congress Standing Committee, stated back in 2007 that the so-called residual power does not exist in the HKSAR because the Basic Law is authorized by the Constitution of the People’s Republic of China and its high degree of autonomy is authorized by the central government according to the Constitution. Whatever powers are not vested in the SAR through the Basic law rest with the central government, which would certainly execute these powers according to the Constitution.

The concept of residual power was born of the federal government system, which means it has no historical root in Hong Kong’s case, as China has never been a federal state and Hong Kong has never been a confederate entity. China has always been a unitary state. Hong Kong, although under British rule for more than one and a half centuries, was never a colony and therefore had no “original power” to speak of. It was under the Guangdong provincial authority, which was appointed by the Qing court in Beijing, before the United Kingdom took control of it in 1842, and the HKSAR Government is now appointed by the Central People’s Government of the PRC according to the Constitution and the Basic Law. There has never been a question of residual power in any sense of the phrase between Hong Kong and the central authority at any point in time. That means there is no jurisprudential logic or constitutional basis for residual power to be brought up in matters concerning the relationship between the HKSAR and the central government.

The NPC was authorized by the Constitution to promulgate the Basic Law of the HKSAR, meaning the Basic Law is authorized by the Constitution. The key word here is authorization. The opposition parties insist on interpreting Article 31 of the Constitution as declaring the Constitution does not apply in the HKSAR but are really trying to confuse the public with their own twisted logic. They seem unable to comprehend the simple truth that without the Constitution Hong Kong would not have had the Basic Law in the first place, or its constitutional status for that matter. The Constitution is the mother of all laws, including the Basic Law of the HKSAR. That — the part of the Constitution regarding the socialist system the main body of the country (the mainland) practices does not apply in the HKSAR — says nothing about the Constitution as a whole, because the HKSAR, including its Basic Law and high degree of autonomy, cannot exist without it.