The white paper on the implementation of "One Country, Two Systems" discusses the establishment of some form of constitution in Hong Kong. Some people have asked whether the Basic Law is actually a de-facto constitution.

But to call the Basic Law a constitution or even a mini-constitution brings up many questions. It is a misnomer, akin to calling a movie a "silent movie" when most movies have sound.

The reasons are actually simple, though not easy to explain. One of the main definitions of a constitution is "the most fundamental body of laws" or "the highest laws" of an organization, usually a nation. If we define the Basic Law as a constitution, according to the definition just given, it would indeed equate to the fundamental, or highest laws of Hong Kong. However, China already has a Constitution - one which is more fundamental and superior to the Basic Law.

The Basic Law is a national law for the whole nation. It is not just a regional law, but the higher laws of the nation, and also for the SAR. But it is the Constitution itself which is final - not the Basic Law.

Evidence for this is provided in the Basic Law itself. For example, the Preamble of the Basic Law states that the HKSAR would be established in accordance with the provision of Article 31 of the Constitution of the People's Republic of China (PRC). So Article 31 is the basis for the establishment of Hong Kong. The same preamble affirms "in accordance with the Constitution of the PRC, the National People Congress (NPC) hereby enacts the Basic Law of the HKSAR of the PRC". It implies the whole Constitution is the foundation for the enactment of the Basic Law. Without such a foundation, there could not have been a Basic Law.

And without the Constitution, the Basic Law would be incomplete and unworkable. For instance, the functions and powers of the NPC, which enacts the Basic Law, have been defined in the Constitution. The functions of the NPC Standing Committee, which interprets the Basic Law and the functions of the central government and appoints the Chief Executive of the SAR, are outlined in the Constitution, too. If we pretend the Constitution does not exist then the Basic Law is like "water without a source, or a tree without roots".

It should also be noted that the "fundamental rights and duties of the residents" are provided for in Chapter III of the Basic Law, without mentioning those of citizens living in the SAR. This is not negligence on behalf of the Basic Law because citizens' rights are discussed in Chapter II of the Constitution.

Some may still ask why we cannot call the Basic Law the constitution of the SAR?

One way of answering this is to note that the same situation also applies in the United States in regard to the relationship between state constitutions and the Federal constitution.

Examining the differences between a "unitary nation" and a "federal nation" can also help clarify this. National structures worldwide can be classified as either unitary, federal, or a combination of the two.

China had been a unitary nation since the establishment of the Qin Dynasty in 221 BC. In China's case then, the overall sovereignty was held by the central authorities. They alone had the authority to delegate any necessary powers to regional institutions. There is no residual power in a unitary nation. All powers originate from the central authorities and are conferred on regional institutions as the central authority considers appropriate.

But a federal nation is different. Using the US as an example, the 13 states established before the formation of a national government in 1776 all had their own individual constitutions.

Sovereignty belonged originally to individual states - or the people of individual states. The sovereignty of these states was then transferred to federal government, collectively, via the US constitution. The sovereignty of the US was shared between the federal government and its member states.

In federal states such as the US, individual states still maintain residual powers. The US Federal Constitution 1791 said: "The powers not delegated by it to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Therefore, a large constitution and many small constitutions can exist in federal nation, but there can only be one constitution in a unitary nation like China.

Consequently, the Basic Law can be seen as an expression of constitutional law - but it is not, itself, a constitution.

The author is a HK veteran commentator and professor at the Research Center of Hong Kong and Macao Basic Law, Shenzhen University.

(HK Edition 07/03/2014 page9)