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Written by: Huang Yunna
2020-06-15 19:00
Last update date: 2020-06-15 19:01"Of course I hope that if we can use the current judicial system in Hong Kong, we should try our best to use it. If it cannot be solved, we will make appropriate changes."-The legislation of the "Hong Kong version of the National Security Law", which is personally operated by the Standing Committee of the National People's Congress, is coming soon. There is no lack of panic and worries in social discussions, and Zhu Guobin, a professor at the Law School of the City University of Hong Kong who has been in Hong Kong for 25 years in legal research and teaching, understands both Hong Kong people’s concerns and the central government’s measures. He had a dialogue with "Hong Kong 01" a few days ago, from the "Hong Kong version of the National Security Law" to "improving the interpretation system of the Basic Law by the Standing Committee of the National People's Congress" and "improving the SAR government's responsibility system to the central government". The central government takes "ruling Hong Kong according to law" as the main means of practicing "one country, two systems" to worry and expect.
(Interview bis)
The central government takes "ruling Hong Kong according to law" as the main means of practicing "one country, two systems". (Profile picture)
In the article "Hong Kong Version National Security Law｜Worries and Expectations of the Central Government in Governing Hong Kong by Law (Part 1)-People's Congress may often interpret the law", Zhu Guobin explained the relationship between the "Hong Kong Version National Security Law" and Article 23 of the Basic Law. He analyzed that because of their different ranks and different scopes and contents, they can be simply understood as "the two sets of "National Security Laws" are individual and add up to be a whole." The implementation of the former depends on the special zone. Of cooperation. On the other hand, as Li Zhanshu, chairman of the National People's Congress, also mentioned in the work report, in addition to establishing and improving the legal system and enforcement mechanism of the SAR government to maintain national security, it will also proceed to "improve the NPC Standing Committee's legal interpretation of the Basic Law" Zhu Guobin speculates that the Standing Committee of the National People's Congress may often exercise the power to interpret the Basic Law in the future to quell people's dispute over the understanding of the provisions.
Further reading: Hong Kong version of the National Security Law｜Worries and expectations of the central government governing Hong Kong according to law (Part 1)-People's Congress may often interpret the law
In this article, Zhu Guobin will continue to analyze the central government's future trends in improving the system and mechanism for the accurate implementation of the Constitution and the Basic Law, including "improving the system and mechanism for the appointment and removal of the chief executive and principal officials of the special administrative region by the central government," and "sound The system in which the Chief Executive of the Special Administrative Region is accountable to the Central Government."
Zhu Guobin believes that to effectively practice "ruling Hong Kong according to law", all parties must take the Basic Law seriously. (Photo by Huang Baoying)
Special zone officials' "appointment and removal system" to be improved
Hong Kong 01: In fact, various systems and mechanisms to improve the accurate implementation of the Constitution and the Basic Law were proposed as early as the "Decision" of the Fourth Plenary Session of the Central Committee at the end of last year, in addition to the above two work involving national security and legal interpretation In addition, the "Decision" of the Fourth Plenary Session also clearly "improves the system and mechanism for the appointment and dismissal of the Chief Executive and principal officials of the Special Administrative Region by the Central Government" and "improves the system of the Chief Executive’s accountability to the Central Government." From the current situation, what are the deficiencies and gaps in these two systems? What impact has it caused? Specifically, how will it be further improved?
Zhu Guobin: Article 15 under Chapter 2 of the "Basic Law" of Hong Kong "Relationship between the Central Government and the Hong Kong Special Administrative Region" states: "The Central People's Government appoints the Chief Executive of the Hong Kong Special Administrative Region and principal officials of the administrative organs in accordance with the provisions of Chapter 4 of this Law "Article 48 of Chapter IV is about the authority of the Chief Executive of the Hong Kong Special Administrative Region. For example, Article 48(5) mentions that he wants to "nominate and report to the Central People’s Government to appoint the following principal officials: directors of various divisions, deputy directors, Directors of Bureaux, Commissioner of Integrity, Director of Audit, Commissioner of Police, Commissioner of Immigration, Commissioner of Customs and Excise; it is recommended that the Central People's Government be relieved of the above official duties."
The "Decision" of the Fourth Plenary Session clearly stipulates "to improve the system and mechanism for the appointment and dismissal of the chief executives and principal officials by the central government" and "to improve the system for the chief executives of the special administrative regions to the central government." Literally, the term "Basic Law" is "appointment", but the "Decision" of the Fourth Plenary Session uses the "appointment and removal system", and says that "the system and mechanism should be improved"; we can read that the Fourth Plenary Session The decision means that the current system needs to be improved.
The "appointment and removal system" includes both appointment and removal, that is to say, the Central People's Government not only has the right to appoint, but also has the right to remove. According to Article 48 of the Basic Law, the Chief Executive "nominates and submits", so the initiative to appoint and waive whom lies with the Chief Executive. In this case, what needs to be improved?
I reasoned from a theoretical perspective that it may include the following aspects: First, it is necessary to form a written (even internal) system and mechanism, that is, the appointment system, the removal system, the official performance evaluation system, the disciplinary system, etc., which violates the criminal law Except for the system; second, the central government may wish to participate in the nomination decision-making process, that is, during the nomination process, the central government should be consulted, or take a step back, saying that the central government has the power not to accept candidates nominated by the Chief Executive; third, for those performances For incumbent senior officials who are poor or passive, the Central Government may issue inquiries and warnings to the Chief Executive, and even propose removal suggestions.
As for "improving the system in which the Chief Executive is accountable to the central government," there is room for understanding and development. It must be made clear that the Basic Law stipulates the Chief Executive’s "dual identity" and "triple responsibility system", that is, the head of the special administrative region, which is responsible to both the Central People's Government and the special administrative region (Article 43). Be accountable to the Legislative Council (Article 64).
So how should it be sound? Speaking from the text, there should be the following possibilities: First, we must improve the reporting system and change the annual report to a shorter time and special reporting system; second, actively and effectively implement Article 48 (8) to implement the Central People’s Government With regard to the directives issued on matters related to this law, Article 48(9) represents the Hong Kong Special Administrative Region Government’s handling of foreign affairs and other matters authorized by the Central Government, etc., because the Central Government’s power of directives is an effective mechanism for the reverse implementation of the Chief Executive’s system; Third, and also in practice, the Central People's Government has the ultimate power to decide on the candidates for the Chief Executive.
The current appointment and removal mechanism for SAR officials needs to be improved. (Profile picture)
Deviations in perception of "one country, two systems"
Hong Kong 01: This series of work is actually to promote the "organic integration" of the central government's comprehensive governance and Hong Kong's high degree of autonomy, so that "one country, two systems" is back on track and stable. However, for the general Hong Kong people who are used to "river water does not commit well water", emphasize "two systems" and ignore "one country", and mistakenly believe that "high degree of autonomy" is equivalent to "complete autonomy", the above-mentioned work policy is within a quarter of an hour. I am afraid it is difficult to understand or even accept. What do you think caused the misunderstanding in Hong Kong? If we talk about the "elastic" or "soft and hard" attitude, it is undeniable that the central government's administration of Hong Kong in recent years has a clear tendency to "tight" or "hard". Is this Hong Kong people's share of "self-actualization"? Is there any room for adjustment in the future?
Let me talk about the institutional reasons first. "One country, two systems" gives the Hong Kong Special Administrative Region a great deal of room for system operation and the conditions for the two systems to operate on their own. On the one hand, in order to maximize the possibility of benefit, the Hong Kong SAR government has been exhausting such institutional resources, such as free travel, timely financial support from the central government (such as during a financial crisis), etc.; on the other hand, the central government highly believes in the SAR, and After the reunification, he has been supporting the SAR government and meeting various requirements. Therefore, many people in the Mainland have criticized Hong Kong as a "spoiled child". From the perspective of system design, the Hong Kong government's exhaustion policy is also justifiable.
Let me talk about the reasons of real politics. The democratization trend, electoral politics, and extreme democratization processes have exacerbated the SAR’s estrangement from the central government, magnified the contradiction of “one country, two systems”, and even increased the resistance of some people to the central government. The propaganda of the regiment brought unrealistic imagination (such as revolution, revolution of the times, democratic resistance to the Communist Party, etc.).
As for cultural reasons, Hong Kong residents are accustomed to freedom, not used to being restrained, but also have the kind of thinking that the emperor is far away. Moreover, where the commercial culture is developed, the official cultural soil is already relatively poor, and the officialdom habits are also weaker.
In terms of historical reasons, there was a gap between the government elite and the people in the era of the British government in Hong Kong. The policy of "active non-intervention" and "small government" widened the gap between people and the government, and people are accustomed to it.
Finally, from the perspective of human nature, "going to the end" is the general mentality of Hong Kong people, and it does not consider how to return when it is needed.
You asked the central government's strategy of governing Hong Kong in recent years, which clearly tends to be "tight" or "hard". Is this "self-actualization" caused by Hong Kong people? In a sense, it is true. Of course, this also has something to do with China's internal affairs. For example, the governance of the mainland has become more centralized; and the relationship between internal affairs and diplomacy is deeply involved. For example, the trade war and the Sino-US "New Cold War" objectively increase the central government's Control willingness and intensity.
Who is messing with Hong Kong? (Profile picture)
Improvement and inadequacy of the rule of law in the Mainland
Hong Kong 01: Judging from the above-mentioned trends, the central government is using "ruling Hong Kong according to law" as the most important means of practicing "one country, two systems". For a period of time, Hong Kong and Macao research institutions at all levels in the Mainland have also been committed to providing "ruling Hong Kong according to law". A large number of legal principles. However, whenever we talk about "law", Hong Kong always thinks that the Mainland's judicial system is not reliable because of some stereotypes that involved the central government's "rule of man". May I ask how to understand the concept of "rule of law" in the Mainland? How is it deeply influenced by traditional Confucian and legalist ideas? What has changed in recent years? What improvements have been made on the issue of implementation?
However, from a purely academic perspective on the status quo of the rule of law in the Mainland, on the one hand, we must see that the level of rule of law in the mainland has been greatly improved, and on the other hand, we must recognize the following issues: (1) The level of development of the rule of law in the Mainland and Hong Kong is different, regardless of From which point of view, the rule of law in Hong Kong is higher than that in the Mainland; (2) The rule of law in the Mainland is still at a level where there are laws that must be followed, and there are many legal documents that are not equal to the realization of the rule of law; (3) In reality, some in the Mainland Local or domain law enforcement has a certain degree of arbitrariness, and the will of the chief executive and leadership intervene in law enforcement from time to time, destroying the reputation of the rule of law in the mainland; (4) The color of rule of man is still heavy, and the legal instrumentalist thinking (legalist thinking) still has a great influence It only treats the law as a pure tool, and has not yet regarded it as the fundamental system and values for governing the country; (5) There is no division of power and judicial independence in the sense of Hong Kong, only trial independence, but in fact the trial is sometimes not independent. .
After all this has been propagated by the media, especially when magnified and exaggerated, the image of the rule of law in the Mainland has become bad. The hope of our legal person is actually very simple: according to the law if there is law, no legislation, strict enforcement, equality of officials and people, and judicial independence. I very much agree that ruling Hong Kong according to law. First of all, Hong Kong should be governed by the Basic Law. All parties should return to the Basic Law and take seriously every provision of the Basic Law.
The rule of law in Hong Kong is higher than that in the Mainland, but this should not be the reason why Hong Kong people, especially legal persons, consider themselves superior. (Profile picture)
Hong Kong people have misunderstandings about the rule of law
Hong Kong 01: It is said that the "rule of law" is the cornerstone of Hong Kong. Therefore, people in the legal profession in Hong Kong regard themselves as "superior" in the "rule of law". They have always adhered to the principle of "common law" to understand legal issues, but ignore Hong Kong since the reunification. It has entered the reality of a "new constitutional order". This has caused Hong Kong to misunderstand the central government's policy of "ruling Hong Kong according to law".
Zhu Guobin: "The rule of law", the rule of law, is indeed the first core value recognized by Hong Kong people, in addition to a clean government and freedom. As mentioned earlier, the rule of law in Hong Kong is higher than that in the Mainland, but this should not be the reason why Hong Kong people, especially legal persons, consider themselves superior. Hong Kong legal persons are basically, or think of themselves as the elite of Hong Kong society.
There are several misunderstandings:
(1) Before and after the reunification, the constitutional order is different. After the reunification, the new constitution based on the Basic Law is established. The Chinese Constitution has overall effect in Hong Kong. The legal person’s thinking cannot be unchanged, and the Basic Law must be accepted as constitutional. And legality review benchmarks;
(2) To accept the fact that Hong Kong is part of the People’s Republic of China and is directly under the Central People’s Government, but this does not necessarily require you to agree with all and every value and system of the People’s Republic of China;
(3) It is not only under the common law that there is the rule of law. Many mature democratic rule-of-law countries belong to civil law or civil law legal families;
(4) "Law" in governing Hong Kong by law refers to all laws related to Hong Kong, including the Constitution, the Basic Law, a number of national laws listed in Annex III, including the upcoming National Security Law, and the National People’s Congress Standing Committee’s Basic Law. Explanation, of course, there are other laws referred to in Article 8 of the Basic Law;
(5) Don't put Hong Kong's common law and the mainland's socialist law in an irreconcilable position. It is good that the two are at peace with each other. This is the essence of "two systems."
In areas where the laws of Hong Kong and the Mainland overlap and overlap, each system should be kept as far as possible, so as not to oppose the constitutional order; if there is a legal conflict, the method of conflict resolution should be sought, including the interpretation of the law by the National People’s Congress and the constitution of the law by the court Sexual presumption and interpretation.
The above is excerpted from the 218th "Hong Kong 01" Weekly Report (June 15, 2020) "From National Security Law to Administering Hong Kong by Law-Worries and Expectations of Legal Scholars".
More weekly articles: [01 weekly report page]
The Hong Kong version of the National Security Law One Country Two Systems Special Administrative Region