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Author: Special Writer
2020-08-13 19:08
Last update date: 2020-08-13 19:08The Standing Committee of the National People's Congress passed the "Decision" on August 11 to extend the term of the current Legislative Council members to no less than one year to deal with the "parliamentary vacuum period" that has postponed the Legislative Council election for one year due to the severe new pneumonia epidemic. Some people questioned the conflict between the "Decision" and the four-year term stipulated in the Basic Law, and pointed out that the Standing Committee of the National People's Congress has amended the Basic Law in disguise. In terms of legal effect and rank, the "Decision" passed by the Standing Committee of the National People's Congress and the "Basic Law" enacted by the National People's Congress, who is higher and lower? How should we understand the relationship between the two? Does the former challenge or even modify the latter? In this regard, Luo Weijian, an expert on the Constitution and the Basic Law and a professor at the Faculty of Law of the University of Macau who is the vice chairman of the National Association of Hong Kong and Macau Studies, gave a specific explanation.
Written by: Luo Yu
The Decision and the Basic Law should not be directly compared
Luo Weijian pointed out clearly that the Decision and the Basic Law should not directly compare the level of legal effect because they are not in the same legal system. He explained that the "Constitution of the People's Republic of China" divides the system of regulatory documents into five levels of effectiveness-the highest level is the Constitution, which has the highest legal effect, and all laws, administrative regulations, local regulations, autonomous regulations and separate regulations, Regulations must not conflict with them; secondly, the basic laws enacted by the National People’s Congress; thirdly, the laws passed by the Standing Committee of the National People’s Congress; secondly, the administrative regulations passed by the State Council; Local regulations designated by the National People’s Congress. In this system, the legal effect of different regulatory documents is directly proportional to the status of the state system that is responsible for formulating; however, distinguishing the legal effect level is not to determine the level of effectiveness, but to solve the problem. When there is a conflict of laws, how to choose the priority applicable norms.
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Then, is the "decision" passed by the Standing Committee of the National People's Congress equivalent to the "law" passed by the Standing Committee of the National People's Congress, and what does it have to do with the "law" enacted by the National People's Congress? According to the legislative system of the People’s Republic of China, the National People’s Congress is the highest organ of state power and can formulate legal documents within the scope of China’s sovereignty and even change its legal effect. As for the Standing Committee of the National People's Congress, it is a permanent organ of the National People's Congress, which can formulate national legal documents in accordance with the law and even change its legal effect. However, since the National People's Congress will only hold one meeting a year, during its adjournment, the Standing Committee of the National People's Congress will act on behalf of some of the powers of the National People's Congress conferred by the Constitution, which can make certain supplementary provisions to the laws enacted by the National People's Congress.
Luo Weijian pointed out that the constitution and laws are abstract and universal rules of conduct; while the "Decision" of the Standing Committee of the National People's Congress is based on a specific special event—for example, the Hong Kong Legislative Council The lack of elections due to the epidemic caused a vacuum in the parliament, and the existing Basic Law, Legislative Council Regulations, and Rules of Procedure have no applicable handling regulations. Therefore, the SAR government submits an emergency report to the State Council, and the State Council submits it to the Standing Committee of the National People's Congress. "Decision". Luo Weijian also emphasized that the above-mentioned "Decision" does not mean that the term of office of the Legislative Council will become five years in the future, because it is only a special decision made under certain circumstances and does not have the universality of general laws.
Zhang Daming, the chief lecturer of the Faculty of Law of the University of Hong Kong, questioned that from the perspective of common law, the Basic Law stipulates that the term of office of members of the Legislative Council is four years, and the "Decision" of the Standing Committee of the National People's Congress is like rewriting the Basic Law. (Profile picture)
The Standing Committee of the National People's Congress is not revising the Basic Law
Zhang Daming, the chief lecturer of the Faculty of Law, Hong Kong University, questioned that from a common law perspective, the Basic Law stipulates that the term of office of members of the Legislative Council is four years. The Decision of the Standing Committee of the National People's Congress is like rewriting the Basic Law; but if you look at the characteristics of mainland law (The socialist legal system with Chinese characteristics), the "Decision" of the Standing Committee of the National People's Congress certainly makes sense, because the highest authority itself is the law itself. However, Luo Weijian does not agree with the "revision of the Basic Law," nor does he believe that the Standing Committee of the National People's Congress "does what he wants."
Luo Weijian said that the "decision" made by the Standing Committee of the National People's Congress is not in a vacuum, and has the legitimacy conferred by the Constitution and the Basic Law-the Constitution stipulates that the National People's Congress, as the country's highest authority, can make provisions for some basic systems. For example, the "Special Administrative Region" system is derived from the "Basic Law" passed by the National People's Congress. Therefore, the final decision-making power of the relevant system remains in the hands of the National People's Congress, not the legislature of the Special Administrative Region. Furthermore, the Basic Law also specifies Although its "right to interpret" belongs to the Standing Committee of the National People's Congress, the "right to modify" belongs to the National People's Congress, not the Standing Committee of the National People's Congress. He further explained that the Chief Executive is responsible for the implementation of the Basic Law. If the Chief Executive encounters difficulties that cannot be resolved within the scope of his powers during the implementation process, he must submit it to the Central People’s Government (State Council) or the National People’s Congress in accordance with the Basic Law. In accordance with the Constitution and the Basic Law, the Standing Committee of the National People's Congress will make some exceptional supplementary provisions in response to some unprecedented circumstances.
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Compared with "revision of the Basic Law," Luo Weijian believes that the "Decision" of the Standing Committee of the National People's Congress is more inclined to "interpret the Basic Law" and has a legal basis. He said that in the process of implementing the Constitution and the Basic Law, various new and unexpected problems will be encountered. The legal interpretations and supplementary provisions made by the Standing Committee of the National People's Congress are equivalent to the documents being interpreted. Effectiveness; therefore, the "Decision" of the Standing Committee of the National People's Congress can also be used as an interpretation of the Basic Law by the Standing Committee of the National People's Congress-both have the same effect.
It is worth mentioning that the “CPC Central Committee’s Decision on Several Major Issues concerning Upholding and Improving the Socialist System with Chinese Characteristics and Promoting the Modernization of the National Governance System and Governance Capacity” adopted at the Fourth Plenary Session of the 19th Central Committee of the Communist Party of China at the end of last year mentioned the need to uphold peace Improving the system of "one country, two systems", including "improving the system and mechanism for the appointment and removal of the chief executive and principal officials of the central government, and the interpretation system of the Basic Law by the Standing Committee of the National People's Congress"-many scholars interpreted this as "constant interpretation of the law"化". If the "Decision" of the Standing Committee of the National People's Congress can be regarded as the interpretation of the Basic Law by the Standing Committee of the National People's Congress, it can be foreseen that the SAR government may actively refer to the Central People's Government and other relevant measures on various new issues in the future.
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