The Basic Law of the Hong Kong Special Administrative Region is the constitutional document that outlines the principle of 'one country, two systems' and guarantees Hong Kong's high degree of autonomy for 50 years after the handover. Its drafting was a complex and unprecedented process that involved extensive consultation and negotiation between China and the United Kingdom, as well as with Hong Kong society. This article traces the drafting history from the signing of the Sino-British Joint Declaration in 1984 to the promulgation of the Basic Law in 1990.
Background: The Sino-British Joint Declaration
The drafting of the Basic Law began after the Sino-British Joint Declaration was signed on 19 December 1984. The Joint Declaration stipulated that Hong Kong would become a Special Administrative Region of China on 1 July 1997, and that its existing social and economic systems would remain unchanged for 50 years. To implement these provisions, a Basic Law was required to serve as the mini-constitution for the HKSAR.
The Joint Declaration outlined the basic policies of China regarding Hong Kong, including the preservation of the common law system, the independence of the judiciary, and the protection of rights and freedoms. These policies were to be elaborated in the Basic Law, which would be drafted by a committee established by the National People's Congress (NPC).
Establishment of the Drafting Committee
On 18 June 1985, the NPC Standing Committee established the Basic Law Drafting Committee (BLDC), comprising 59 members: 36 from mainland China and 23 from Hong Kong. The BLDC was chaired by Ji Pengfei, then Director of the Hong Kong and Macau Affairs Office. The Hong Kong members included prominent figures from various sectors, such as businessmen, academics, lawyers, and community leaders. Notable Hong Kong members included Sir S.Y. Chung, Maria Tam, and Martin Lee.
The BLDC was tasked with drafting the Basic Law and ensuring it reflected the Joint Declaration's principles. To facilitate its work, the BLDC set up five special groups focusing on different aspects:
- Relationship between the Central Authorities and the HKSAR
- Fundamental Rights and Duties of Residents
- Political Structure
- Economy
- Education, Science, Technology, Culture, Sports, and Religion
These groups held numerous meetings and consultations to draft the various chapters of the Basic Law.
The Role of the Consultative Committee
In addition to the BLDC, a Basic Law Consultative Committee (BLCC) was established in November 1985 to gather public opinion in Hong Kong. The BLCC was composed of 180 members from diverse backgrounds and was chaired by Sir S.Y. Chung. The BLCC conducted extensive surveys, public hearings, and discussions to ensure that the drafting process was inclusive and reflective of Hong Kong's views.
The BLCC's involvement was crucial in legitimizing the drafting process. It organized over 200 meetings and received more than 70,000 submissions from individuals and organizations. The feedback collected was collated and submitted to the BLDC for consideration.
Key Debates and Controversies
The drafting of the Basic Law was not without controversy. Several issues sparked heated debates among members of the BLDC and the Hong Kong public.
The Political Structure
One of the most contentious issues was the design of the political structure, particularly the method of selecting the Chief Executive and the Legislative Council. The BLDC debated whether the Chief Executive should be elected by universal suffrage or by a smaller electoral college. Similarly, the composition and election of the Legislative Council were fiercely discussed. The final compromise, outlined in Annex I and Annex II, stipulated that the Chief Executive would be elected by a broadly representative Election Committee, and the Legislative Council would have a mix of directly elected and functional constituency seats.
Right of Abode
Another major debate concerned the right of abode for Hong Kong residents. The BLDC had to define who would be considered a permanent resident. The final definition, as stated in Article 24, includes Chinese citizens born in Hong Kong, those who have ordinarily resided in Hong Kong for a continuous period of not less than seven years, and certain other categories.
Interpretation and Amendment
The power to interpret and amend the Basic Law was also a point of contention. The BLDC eventually agreed that the power of interpretation and amendment would lie with the NPC Standing Committee, but the courts of the HKSAR could interpret provisions within the limits of their jurisdiction. Amendments could be proposed by the HKSAR or the NPC, but required approval by a two-thirds majority of the HKSAR's Legislative Council and the consent of the Chief Executive.
Drafting Process and Milestones
The BLDC held its first plenary session in July 1985. Over the next five years, it produced several drafts for public consultation. The first draft was published in April 1988, followed by a five-month consultation period. The second draft was released in February 1989, again with a public consultation period. The final draft was completed in February 1990.
Key milestones included:
- April 1988: Publication of the first draft for public consultation.
- February 1989: Publication of the second draft after incorporating feedback.
- 4 April 1990: The Basic Law was formally adopted by the NPC at its Third Session of the Seventh National People's Congress.
- 1 July 1997: The Basic Law came into effect upon the establishment of the HKSAR.
The final version of the Basic Law consists of 160 articles, divided into nine chapters, plus three annexes. It enshrines the principle of 'one country, two systems' and guarantees Hong Kong's high degree of autonomy, including its own legal system, currency, and customs territory.
Aftermath and Legacy
The drafting of the Basic Law was a landmark achievement that provided the constitutional foundation for Hong Kong's return to China. It was the result of years of negotiation and compromise between different stakeholders. However, the drafting process also highlighted the tensions between Beijing's desire for control and Hong Kong's aspirations for democracy.
Since 1997, the Basic Law has been the cornerstone of Hong Kong's governance. Its interpretation by the NPC Standing Committee has occasionally sparked controversy, as seen in the 1999 right of abode case and the 2014 decision on political reform. Despite these challenges, the Basic Law remains the supreme law of the HKSAR and continues to guide Hong Kong's development.
For a more comprehensive understanding, readers may refer to our article on What is the Basic Law, which explains its key provisions. Additionally, the Complete Guide to Hong Kong's Political System provides context on how the Basic Law shapes the city's governance.
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