Song Sio-chong says Basic Law is legislation derived from national Constitution - which prevails throughout country, SAR included

When people are asked about Hong Kong's constitution most think of the Basic Law. But the Basic Law is merely a constitutional law rather than a "mini-constitution"; the constitution of Hong Kong is actually the same as the Constitution of the People's Republic of China.

When Hong Kong celebrates the National Constitution Day, three important things deserve our attention. First, it is of utmost importance for us to appropriately regard the Basic Law as constitutional by its nature under the umbrella of the Constitution. Unlike the United States, China is a unitary nation with only one Constitution. Other national laws passed by the national legislature cannot be called constitutions, no matter big or small, mini or macro. For this reason, all national laws listed in Annex III of the Basic Law may also be described as constitutional laws. If the Basic Law is called the "mini-constitution", such a misnomer may give the wrong impression that China has more than one constitution, contrary to the nature of China as a unitary nation.

In a federal nation like the US, the constitution (federal) was made by then-representatives of all states and approved by three quarters of all states of the nation. Other than the federal constitution, there are many constitutions (local) enacted by the legislatures of each state before or after the federal constitution. The federal constitution may be called the "big constitution" and the rest "small constitutions".

Furthermore, both unitary and federal nations have sovereignty. Without the element of sovereignty, there would have been no nation. Within unitary and federal nations, sovereignty allocation differs. Sovereignty in the former exclusively belongs to the central government, while sovereignty may be divided between the central and state governments in the latter.

The Hong Kong Special Administrative Region enjoys a high degree of autonomy, perhaps more than individual states in a federal nation enjoy, but it has neither sovereignty nor a local constitution. As an SAR under the central government of China, Hong Kong people would be misguided should the Basic Law be called "mini-constitution".

The second important thing we need to pay attention to when celebrating the National Constitution Day is the relationship between the Constitution and Basic Law. The Preamble of the Basic Law has made two important points: The HKSAR has been established in accordance with Article 31 of the Constitution under the principle of "one country, two systems"; the Basic Law has been enacted in accordance with the Constitution. Article 31 of the Constitution is referred to in the first point, whereas no specific article of the Constitution is mentioned in the second point. That is to say, the Constitution as a whole is the legal basis for drafting the Basic Law. This implies that relevant articles of the Constitution have also served as the legal source for the Basic Law.

Compared with the Basic Law and all national laws listed in the Annex III of the Basic Law, the Constitution is a higher law. Compared with the local ordinances, subordinate legislation and common law, the Basic Law including those listed in its Annex III is a higher law. Whenever they are in conflict, the higher law will prevail. Except certain provisions of the Constitution regarding the Chinese mainland's socialist system and those policies that are not applicable in the HKSAR under "one country, two systems", the Constitution together with the Basic Law should be taken into account when settling conflicts arising from implementation of "one country, two systems".

Care should be taken with the legal effects of the Constitution including those exempted for Hong Kong. Despite those provisions not directly applying to the HKSAR, the Hong Kong government and people are still obliged to uphold national unity and territorial integrity as stipulated in those provisions. They must not act against those provisions, including the ones regarding the mainland's political system whether they are on the mainland or in the SAR.

And finally, Hong Kong should take pride in and cherish its two great advantages in terms of constitutionalism and internationalism. As one of the "Four Asian Tigers", Hong Kong's prosperity became an inspiration to the mainland in its efforts to develop the economy through reform and opening-up in the 1980s. The central government tactfully designed the "one country, two systems" political setup for the return of Hong Kong, which is acceptable to both the Chinese people and international community. Continued colonialism was no longer justifiable but "one country, one system" would take time to realize so Hong Kong was given the best option - "one country, two systems". We have already had the best form of system we can ever have, which conforms to the concept of constitutionalism. It would be wrong and dangerous for the SAR to cater to the whims of the few who demand regional separation - essentially an illusion that would eventually be smashed as it violates the existing political system. After all, both constitutionalism and internationalism - the SAR's two great advantages - are highly regarded both nationally and globally.

(HK Edition 12/08/2017 page13)