Hong Kong Basic Law - Controversial Issues in Relation To The Basic Law

Controversial Issues in Relation To The Basic Law

After the reunification of Hong Kong in 1997, the Basic Law came under the spotlight for the following controversial issues:

• The Right of Abode issue in 1999, during which the Government sought an interpretation of Articles 22 and 24 from the Standing Committee of the National People's Congress to avoid a potential influx of over a million Mainland residents (according to Government estimates) into Hong Kong. This has triggered a debate on judicial independence in Hong Kong.

• Article 23 of the Basic Law requires Hong Kong to enact laws on its own to prohibit acts including treason, secession, sedition, subversion against the Central People's Government, and theft of state secrets. This became a subject of considerable controversy when the Government of the HKSAR attempted to introduce legislation to implement the Article in 2002 to 2003. The proposed legislation gave much power to the police, such as not requiring a search warrant to search a home of a "suspected terrorist". This has led to public outcry, and resulted in massive demonstrations (July 1 marches), where it is estimated that over five hundred thousand people took to the streets, on 1 July 2003. After the demonstrations, the government indefinitely shelved its drafted law.

• The possibility of universal suffrage in 2007 and 2008. universal suffrage for the election of the Chief Executive in 2007, and for all seats of the Legislative Council in 2008 is not ruled out under Articles 45 and 68 of the Basic Law, the conservative camp and legal experts in Mainland China have claimed that this would violate the "Principle of gradual and orderly progress" and "in the light of the actual situation" set forth in Articles 45 and 68. The controversy was finally settled through interpretation of Basic Law by the Standing Committee of the National People's Congress, which ruled out the possibility of universal suffrage in 2007 and 2008 on 26 April 2004.

• The question of whether pay-cuts for civil servants and having a deficit budget are allowed under the Basic Law. According to the Article 100 of the Basic Law, the civil servants may remain in employment with pay, allowances, benefits and conditions of service no less favourable than before the handover. Article 107 stated the SAR Government should follow the principle of keeping the expenditure within the limits of revenues in drawing up its budget. During the economic downturn after 1997, there was a growing fiscal deficit (and, in 2007/08 a record surplus). The government imposed a pay-cut on the Civil Service during the economic downturn, and then sharply increased salaries during the recovery.

• The term of the new Chief Executive after the original Chief Executive resigned. This question arose after the original Chief Executive Tung Chi-hwa resigned on 10 March 2005. The legal community and the pro-democracy camp claim that the term of the new Chief Executive should follow Article 46, that is, a 5 year term. However, the Hong Kong government, some Beijing figures and the pro-Beijing camp claim that it should be the remaining term of the original Chief Executive, based on some insignificant Chinese words in the Chinese version of the Basic Law, introducing the remaining term concept. The HKSAR government has sought interpretation from the Standing Committee of the National People's Congress on 6 April 2005, and the standing committee ruled on 27 April 2005, that the Annex I of the Basic Law requires that if any Chief Executive should resign on or before 2007, the new Chief Executive should serve out the remainder of his predecessor's term. Hong Kong residents who favour autonomy view the "interpretation" from the Standing Committee as an intrusion into the Hong Kong legal system by the central government in violation of the spirit of the One Country, Two Systems policy, compromising the rule of law.

• No formal terms for extradition of criminals exist. Article 95 provides for mutual judicial assistance between Hong Kong and the PRC; however, serious stumbling blocks, such as capital punishment stand in the way of a formal understanding of extradition. Additionally, HKSAR authorities have ruled that Articles 6 and 7 of the PRC Criminal Code does not give Hong Kong sole jurisdiction in criminal matters, particularly when a crime is committed across provincial or SAR borders. The current status quo is that Hong Kong will ask for the return of Hong Kong residents who have committed crimes in Hong Kong and are arrested in the mainland. A mainlander who commits a crime in Hong Kong and flees back to the mainland, however, will be tried in the mainland. In cases of concurrent jurisdiction, the Central Government has demanded that the trial be held in the mainland. Prominent authorities, such as Albert Chen, a professor, and Gladys Li, chairman of justice of the Hong Kong section of the International Commission of Jurists, feel that this situation has serious ramifications for judicial independence in Hong Kong.