The so-called "Five Constituencies Referendum" has been an ongoing issue for a while now, but when it comes to the constitutional debate, the author hardly sees any discussion addressing "One Country, Two Systems".

The constitutional basis of the Basic Law is derived from Article 31 of the Chinese Constitution, which states: "the state may establish special administrative regions when necessary ..." The fact that the Basic Law was drafted and passed by the National People's Congress (NPC) (but not the Legislative Council of Hong Kong) and that the power of interpretation is vested in the Standing Committee of the National People's Congress (NPCSC) verifies that the Basic Law is a piece of national law, not a piece of ordinary Hong Kong law (Article 158, Basic Law). Many people of Hong Kong are familiar only with the local laws passed by the Legislative Council and do not enjoy a similar grasp of the national laws passed by the NPC. It is thus necessary to undertake a short introduction to the latter.

The legal hierarchy of Chinese law is as follows in descending order: the Chinese Constitution, national law, administrative regulations, local regulations and finally administrative rules. The Chinese Constitution must be ratified by a 2/3 majority of the NPCSC. The Basic Law needs only to be passed by a simple majority of the NPCSC, and thus it is not a part of the Chinese Constitution as such. It is a special law of the order of precedence as are other national laws. In the hierarchy, the legal status of the Hong Kong Legislative Council is at the same level as that of a local people's congress, and thus the laws passed by the Hong Kong legislature share the same status as provincial laws. Since Hong Kong operates under "One Country, Two Systems", the laws passed by the legislature fall within the scope of autonomous administration, and may continue to follow the common law system. Except for the Hong Kong Basic Law and the national laws listed in Annex III, no other national laws of China apply to Hong Kong.

While the Central Government, provincial governments and cities shall abide by the Basic Law (Article 22 of the Basic Law), Hong Kong as a SAR also must abide by the provisions belonging to the scope of "one country". For example, we must respect and abide by the fact that China is a unitary state and that the NPC and NPCSC enjoy the powers that they have. Neither the Chinese Constitution nor the Basic Law empowers the Hong Kong SAR to hold its own "referendum". In 1988 when the Basic Law was being drafted, a member of the Drafting Committee suggested a provision on referendums, but the proposal was voted down. The Chinese government has clearly stated that it does not agree to grant the Hong Kong SAR government the right to conduct any referendum which shall fall within sovereign power. There was no provision for referendums in the Joint Declaration of 1984 nor before the handover, either.

In brief, it is very obvious that referendums clearly are not in accordance with the Basic Law and would only have detrimental effects on "One Country, Two Systems".

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

(HK Edition 04/29/2010 page1)