Neither the Chinese Constitution nor the Basic Law empowered the SAR Government to conduct a "referendum". The political parties that forced the Hong Kong government to hold a by-election in their effort to create a "referendum" are in fact bringing about a fundamental challenge to "One Country, Two Systems" and to Chinese constitutional law.

Wong Yan-lung, the Secretary for Justice, has stated that a referendum is not "in accordance" with the Basic Law. Nonetheless, the government will fund the by-election as provided in the Rules of the Legislative Council. Article 8 of the Basic Law states that "the laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region." It is obvious that the Basic Law ranks above any other local Hong Kong laws, and in the event where local laws contravene the Basic Law, it will be nullified automatically. If the "referendum" is not in accordance with the Basic Law, then the provision under the Legislative Council Ordinance which provides for a resignation to become a de-facto "referendum" in the present form shall be amended. If not, is it not a self-contradiction to permit a local law which is lower on the hierarchy of law to contravene the Basic Law, which is the highest law of Hong Kong?

Referenda held in many countries worldwide are governmental initiatives, which must be provided for and regulated by the respective constitutions. Issues to vote at referenda must also be set by the government. Money must be spent by the government. Even in the US where a federal system is observed, if a state wishes to hold a referendum, it has to do so in the manner explicitly stipulated by the constitutional law of that particular state.

In 1982, China and the UK began several rounds of diplomatic discussion with regard to the future of Hong Kong. In 1984, the Joint Declaration was signed, and it was officially declared that from July 1, 1997 onwards, China would regain its sovereignty over Hong Kong. The Joint Declaration enjoys the status of an international treaty, and in order to fulfil its obligation under the Joint Declaration, the Chinese government has to enact a piece of national legislation that would not contravene the Chinese Constitution, the highest of the legal hierarchy. Thus, there must be a provision in the Chinese Constitution which allows Hong Kong SAR and Macao SAR to practice different legal and political systems, and corresponding legislation which ensures that other provinces respect and abide by these laws to ensure "One Country, Two Systems" is possible.

The Basic Law is the national law China enacted as the nation regained sovereignty over Hong Kong and to bring about "One Country, Two Systems". However, any special powers enjoyed by Hong Kong must fall within the framework of "One Country, Two Systems". The Central Government retains the ultimate jurisdiction over matters which fall outside Hong Kong's autonomy, while Hong Kong has jurisdiction only over matters within its autonomy.

It is evident that provisions for referenda are not provided under Basic Law nor in the Chinese Constitution. Thus, if referenda contradict the Basic Law, the Legislative Council Ordinance, only as a local law, cannot justify the by-election held for a so-called de-facto "referendum".

The author is a legislator and associate professor of the Law School of City University of Hong Kong

(HK Edition 04/22/2010 page1)