Standing Committee's interpretations and other decisions of the last few days have done is to signal the absence of genuine autonomy and Hong Kong's total subordinaation to Central Authorties. This is not how the promise of autonomy was orginally understo

The genuineness of the autonomy in legislature was tested during the legislature of Article 23 (BL23). BL23 requires the HKSAR to ‘enact laws on its own to prohibit any act of treason, secession, sedition and subversion against the Central People’s Government’. There is such a comment in the implementation of BL23 in the cover story of “Hong Kong Lawyer” in November 2002,

“This (BL23) is an important aspect of HKSAR autonomy under the concept of “One country, two systems”. It demonstrates respect for existing social, economic and legal systems in Hong Kong at the time of the handover and ensures that mainland laws and practices will not be imposed on Hong Kong... it empowers the HKSAR – in practice its legislature – to enact laws to define and penalise such actions.” 

However, precise definitions in “treason, secession, sedition and subversion against the Central People’s Government” are missing in the proposal. Half a million people protested opposing it on 1 July 2003 because it may bring to unjust prosecutions. The proposal was thereby abandoned under the pressure of the people, showing a true autonomy in legislative power.

Autonomy in executive power

Autonomy in executive power is granted in Article 151 of the BL:

“The HKSAR may on its own, using the name "Hong Kong, China", maintain and develop relations and conclude and implement agreements with foreign states and regions and relevant international organizations in the appropriate fields, including the economic, trade, financial and monetary, shipping, communications, tourism, cultural and sports fields.”

Knowing the HKSAR does not have the authority over defence or foreign affairs, however, it may still conduct “external affairs” as authorised by the CPC under the BL. The BL allows the HKSAR to raise different opinions of its own in a subordinate form. The CPG allows it to have its own representatives in international organisations, for example, in World Health Organisation, World Trade Organisation and the United Nations, etc. Besides, HKSAR can also participate in international events, i.e. in Olympic Games, under “Hong Kong, China”, which is distinct from “People's Republic of China”. Only under “One country, two system” there could be two members within the same country. Hong Kong is therefore enjoying a high degree of autonomy in executive power.

Still, Hong Kong is lacking of executive power to conduct universal suffrage in 2007 and 2008, which was originally promised in the BL. Article 45 of the BL (BL45) stated that

“The method for selecting the Chief Executive shall be specified in the light of the actual situation in the HKSAR and in accordance with the principle of gradual and orderly progress.”

However, the NPCSC delayed the progress of universal suffrage by interpreting BL45. Many pan-democrats object the postponement of universal suffrage, and claimed that Beijing’s acts are due to mistrust towards Hong Kong. As some mainland columnists suggested that Beijing would not appoint a CE who is not pro-Beijing, showing Beijing’s autonomy granted to Hong Kong is challenged.

Autonomy in judiciary power

Beijing’s interpretative authority under Article 158 of the BL affected the judiciary independent of Hong Kong and it continues to cast a shadow over the rule of law in Hong Kong. In one of the leading cases, Ng Ka Ling v Director of Immigration, the CFA held that the people from mainland China had the right of abode in Hong Kong if one of their parents is a citizen under Article 24 (2)(3). However, if such policy is implemented, it will open the floodgate because 1.6 million people will fall into the category. Due to the fear of the sudden influx of these new immigrates, the Hong Kong government felt that it is necessary to refer the case to Beijing. NPCSC therefore insisted on a new interpretation of the Law under Article 158 thereafter, hope to settle the issue. They claimed that the right of abode of the mainland born Chinese is an affair of “Central Authorities and the Region” under Article 158. However, the interpretation made raised more questions than it aimed to solve. The major concern in the CPG was the CFA claimed that it had the jurisdiction to interpret the relevant provisions of the BL in adjudicating these cases, or is bound to seek an interpretation of such provisions from NPCSC pursuant to Article 158. In Cheung Lai Wah case, the judges concluded in paragraph 61 that:

“What has been controversial is the jurisdiction of the courts of the Region to examine whether any legislative acts of the National People's Congress or its Standing Committee (which we shall refer to simply as "acts") are consistent with the BL and to declare them to be invalid if found to be inconsistent. In our view, the courts of the Region do have this jurisdiction and indeed the duty to declare invalidity if inconsistency is found. It is right that we should take this opportunity of stating so unequivocally.”

However, Article 31 of the Constitution of the PRC stated,

   “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 NPC in light of specific conditions.”

Keeping in mind that the NPC and the Standing Committee of the People's Republic of China is the highest organ of state power, the authority of the BL comes from the law enacted by them. CFA’s power has to be within the confines of Hong Kong’s internal affairs, and not those including affairs relating to the mainland China. When the Court made a judgment on issues related to “the Region and the CPG”, it would be considered out of its “limits of the autonomy” and be referred to as "a judicial reference". Therefore, it is absurd for the CFA to announce NPC’s or its Standing Committee’s interpretation is void in Ng’s Case in Beijing point of view.

However, the argument put forward by the Hong Kong’s legal professions is it is too vague to classify those “internal” affairs and “affairs between the CPG and the Region”. Despite the fact that the interpretations of the NPCSC are only few of a zillion, they are destructive enough to the judiciary independence of Hong Kong’s legal system. In two key subsequent cases, Lau Kong Yung and Others v Director of Immigration and Director of Immigration v Chong Fung Yuen, the CFA explicitly granted that Beijing’s Article 158 authority was in essence unlimited, noting in Lau Kong Yung that

“The power of interpretation of the Basic Law conferred by Article 158(1) is in general and unqualified terms... That power and its exercise is not restricted or qualified in any way by Articles 158(2) and 158(3).”

In Chong Fung Yuen, the CFA reiterated the point, noting that

“the power of the Standing Committee extends to every provision in the BL and is not limited to the excluded provisions referred to in art. 158(3).” 

In Beijing’s eyes, the most serious problem in the ruling was CFA had put itself above the NPCSC and had “overly expanded” its powers. Ralf Horlemann, the author of Hong Kong's Transition to China Rule sees the court’s decision, not formally necessary in the circumstances of the case, was therefore a welcome opportunity for Beijing to firmly establish its authority as the final arbiter of the BL. Law Yuk-Kai, Director of the Hong Kong Human Rights Monitor even criticised that the CPG gave its own interpretation of the “true legislative intent” of the relevant provisions in the BL is “an innovative invention for political convenience”. The legal professions in Hong Kong are convinced that these cases are “bad” precedents which allow the CPG “abuse” its power of interpreting the BL. They are deeply concerned that it is a potential weapon which can cause harm to the judiciary autonomy in Hong Kong. As the judgment make in the CFA can be override by the NPCSC in the future, there would be absence of impartiality of the law because the Court is politicised. A better approach would be NPCSC proposing an amendment to Article 24 because it will minimise the destructive effect to the rule of law.

Therefore, it is likely to say, the HKSAR still enjoys autonomy in judiciary power but not in full. The genuine state of autonomy for Hong Kong is absent because the separation of power between the CPG and the Special Administrative Region is missing. 

Conclusion

Supposedly, the CPG should only be responsible for the foreign affairs and defence of the HKSAR and other issues related to “the PRC and HKSAR” under the BL. Despite we have to strike a balance between “One country” and “Two systems”, Beijing should respect the promise of autonomy for Hong Kong’s prosperity and stability. Contrarily, NPCSC used the ambiguity in the BL, to “damage” the autonomy of the Region. Therefore, NPCSC’S interpretations of the BL and other decisions signaled the absence of genuine autonomy in Hong Kong and the promise is not how originally understood.

Bibliography

Ralf Horlemann, Hong Kong's Transition to China Rule: The Limits of Autonomy (1st edn RoutledgeCurzon, London 2003)

Elsie Leung “Why the Government must seek an Interpretation of BL 53(2) from the NPCSC” <http://www.doj.gov.hk/eng/archive/pdf/sj20050419e.pdf> accessed 2 October 2009

“NPCSC's interpretation on term of new CE legal and constitutional” <http://www.info.gov.hk/gia/general/200505/08/05080201.htm> accessed 2 October 2009

Full Text: NPC Standing Committee decision on issues concerning methods for selecting HK Chief Executive and forming Legco

<http://news.xinhuanet.com/english/2004-04/26/content_1440569.htm> accessed 2 October 2009

Article 23
<http://www.article23.org.hk/english/main.htm> accessed 2 October 2009

Basic Law

<http://www.basiclaw.gov.hk/en/index>

Thomas E. Kellogg, Excessive Deference or Strategic Retreat? The Impact of Basic Law Article 158

<http://www.hkjournal.org/PDF/2008_spring/5.pdf> accessed 2 October 2009

Speech by Secretary for Security to move amendments of immigration legislation <http://www.info.gov.hk/gia/general/199907/16/0716267.htm> accessed 2 October 2009

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