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Jurisprudence Analysis of the National People’s Congress to Improve Hong Kong’s Electoral System|Li Haoran

2021-03-07T07:16:24.226Z


In order to improve the electoral system of the Hong Kong Special Administrative Region, the National People's Congress authorized the Standing Committee of the National People's Congress to amend relevant content in Annex 1 and Annex 2 of the Hong Kong Basic Law. The legal principles of the relevant amendments are based on Article 159 of the Basic Law. There are four


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Written by: Li Haoran

2021-03-07 15:01

Last update date: 2021-03-07 15:03

In order to improve the electoral system of the Hong Kong Special Administrative Region, the National People's Congress authorized the Standing Committee of the National People's Congress to amend relevant content in Annex 1 and Annex 2 of the Hong Kong Basic Law.

Legal basis for relevant amendments

There are four paragraphs in Article 159 of the Basic Law, which describe in detail the right to amend the Basic Law and procedures.

The first paragraph clearly stipulates that the right to amend the Basic Law belongs to the National People's Congress.

The second paragraph stipulates that the right to propose amendments to the Basic Law belongs to the Standing Committee of the National People's Congress, the State Council and the Hong Kong Special Administrative Region; in other words, all three have the power to initiate amendments to the Basic Law.

The remaining part of the second paragraph and the third paragraph stipulate the specific procedures for the Hong Kong Special Administrative Region to initiate amendments.

The fourth paragraph stipulates that the amendments to the Basic Law must not contravene the established basic guidelines and policies of the People's Republic of China towards Hong Kong.

This time the National People’s Congress authorized the NPC Standing Committee to make relevant amendments, based on the fact that the Basic Law is a national law enacted by the National People’s Congress. The National People’s Congress naturally has the right to interpret and revise the Basic Law; that is, Article 159, paragraph 1. description of.

In fact, from a deeper legal perspective, any institution that makes laws has the right to modify the laws it makes.

Therefore, the description in the first paragraph is both a regulation and an explanation of legal principles.

In addition, it should be noted that, in accordance with the second paragraph of Article 159 of the Basic Law, there are three subjects with the right to make amendments.

However, the establishment of this proposal right does not therefore exclude the NPC’s right to amend the Basic Law, which includes initiating amendments.

Therefore, it can be seen here that if the three parties want to initiate amendments, they are exercising the right to propose to the National People's Congress, which is different from the nature of the amendment rights exercised by the National People's Congress.

When the political reform plan failed to pass, it meant that the original election plan in the Basic Law would not work.

Since the National People's Congress has the right to amend the Basic Law, when there are deficiencies in the system and Hong Kong itself cannot solve it, the intervention of the National People's Congress is logical.

The right to propose amendments to the Basic Law belongs to the Standing Committee of the National People's Congress, the State Council and the Hong Kong Special Administrative Region, all of which have the power to initiate amendments.

(Information Picture/Photo by Zheng Jianfeng)

Recall that when the Basic Law was drafted, if someone wanted to disrupt Hong Kong's constitutional order and harmed national security, could the central government step in to resolve some mistakes?

I believe no one will answer that the central government does not have this power, and certainly no one thinks that the central government will agree to give up this power and leave it to Hong Kong to handle it.

If this is the case, it is complete decentralization.

However, under the constitutional framework of the Basic Law, Hong Kong enjoys a high degree of autonomy.

According to this spirit, if an extreme situation occurs in Hong Kong and cannot be resolved by itself, the central government has the right to resolve the relevant issues.

In fact, the Central Government holds the power in the Basic Law to resolve matters that Hong Kong cannot handle by itself, including matters such as public order, social order, and safety.

Whether the modified content is reasonable and legal

The whole nation has the right to amend and interpret the Basic Law.

The next point is whether the modified content is reasonable and legal?

This requires comparison with the provisions of paragraph 4 of Article 159 of the Basic Law. Any amendments must not contravene the requirements of Hong Kong's established basic policies.

For example, if the "Basic Law" is amended so that Hong Kong will no longer practice capitalism and become socialist, of course this is obviously not in line with the provisions and spirit of the "Basic Law".

However, what is now proposed is only to amend the election method, which is fully in line with the scope of the Basic Law, and the extent of the amendment is also appropriate.

For example, the legislative council seats of the super district councils are used to illustrate: when the Basic Law was drafted, there were no super district council seats. This was based on the principle of gradual and orderly progress.

However, after a period of practice, problems have been discovered in this attempt. It may be that the district councils, as a regional advisory organization, cannot be matched with the political legislature. Therefore, it is necessary to make amendments.

From the point of view of election methods, the Super District Council seats are elected through indirect elections, so why can't they be replaced by another indirect election?

This change has not been retrogressive, and it is in line with the principles and spirit of the Basic Law, including gradual and orderly progress.

Even the "Sino-British Joint Declaration" is used to measure this amendment, and there is no violation.

In the Sino-British Joint Declaration, it is proposed that the chief executive of the special zone shall be elected or negotiated, and the legislature shall be elected.

The specific methods for the formation of the Chief Executive and the Legislative Council are all derived from the provisions of the Basic Law.

And this amendment is to continue to maintain the principle of electing the two. It only modifies the specific methods of elections. Therefore, it is also in line with China's position in the "Sino-British Joint Declaration."

The Standing Committee of the National People's Congress will review the arrangements for Hong Kong's electoral system.

(Xinhua News Agency)

The National People's Congress authorized the Standing Committee of the National People's Congress to deal with election arrangements in Hong Kong.

Whether this amendment has a sufficient legal basis depends on the NPC’s right to amend the Basic Law, and whether the content and extent of the amendment comply with the provisions of the Basic Law.

The Basic Law was formulated by the National People's Congress, and the National People's Congress naturally has the right to amend and interpret the Basic Law.

When the system failed to reform, and Hong Kong itself was unable to solve the problem, the National People’s Congress used its existing power to initiate appropriate amendments as the last guarantee. This is reasonable and legal, and conforms to the provisions and principles of the Basic Law. And spirit.

Li Haoran

Member of the Basic Law Promotion Steering Committee of the Hong Kong Special Administrative Region Government

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Source: hk1

All news articles on 2021-03-07

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