Questions focused in this paper At the end of last century, with the return of Hong Kong and Macau to the motherland, China saw the birth of two new special administrative regions and was undergoing an unprecedented social transformation. In accordance with the principle of one country two systems and the basic laws, Hong Kong people administers Hong Kong, Macau people administers Macau, and both special administrative regions enjoy high degree of autonomy. With the successful advancement of the cause of one country two systems, more profound questions have surfaced with social transformations in Hong Kong and Macau, for example, the public feeling and local people’s identity with the motherland, the appropriate understanding of the principle of one country two systems and the basic laws. We may notice that there is an exceptional phenomenon in today’s society in Hong Kong: some local people will tend to regard the SAR as independent or quasi-independent political entity outside China’s mainland, talking about only the “two systems”without the “one country” premise, respecting only the Basic Law and local laws in Hong Kong, emphasizing high-degree of autonomy in the Basic Law in contrast to the central authority. Those opinions will not be sustained in both legal and jurisprudent terms, and may cause negative influence in practice for the implementation of one country two systems. This paper will discuss the above questions from a perspective of mainland scholars, proceeding from the power of the central authority to govern Hong Kong and Macau.
A state’s power to govern could be generally understood as administering and governing power of the state on territory, residents and other affairs on the basis of sovereignty and constitutionalism. Any sovereign country across the world has this governing power. How can we define China’s power to governing the two SARs? And what is the basis of the governing power? The following section will focus on the concept of state sovereignty and China’s constitutionalism.
I. State sovereignty and China’s resumption of its sovereignty over Hong Kong and Macau
State sovereignty as a concept in modern sense originated from sixteenth century’s Europe, and was later widely accepted by the international society and academia. Black’s Law Dictionary gives the following authoritative definition to “sovereignty” : “The supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; the supreme will; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent.” Here, the state sovereignty is defined as a “supreme, absolute and unrestrained power”, which has become a mainstream academic view.
After the code war, the principle of state sovereignty bore the brunt of great shocks, but almost all countries have been holding fast to rights and interests based upon sovereignty that is up to now the legal foundation of state powers. Modern international law still acknowledges that sovereignty is the fundamental character and core element of a state, also a main symbol of modern country different from regions or political entities. Jurisdiction is the core implication of state sovereignty. The Oxford Companion to Law explains under the entry of “state” that the inevitable result of the state will be the possession of jurisdiction that includes legislative, executive and judicial powers. The Oxford Companion to Law also points out that the administering function of modern state is expanding into every aspect of social life, covering not only the traditional jurisdiction but also large amount of social affairs. Therefore, we are using the term of “the power to govern” to reflect both the jurisdiction and administering power of the state on the basis of its sovereignty.
The definitions of state and sovereignty in the above two well-known legal dictionaries might become an academic criteria for us to examine questions of sovereignty and state’s power to govern. China’s resumption of sovereignty over Hong Kong and Macau put an end to the colonial rule of the Great Britain and Portugal in Hong Kong and Macau, an event that was considered of great political and legal significance for the unification and territorial integrity of the country. The return of Hong Kong and Macau to the motherland signified that China since that moment would resume the “supreme, absolute and unrestrained” sovereign power over the two regions. To be more specific, the central authority has the right to lay out guidelines and policies concerning the administering of Hong Kong and Macau, deciding the legal position and administrative division of Hong Kong and Macau in China’s constitutionalism, mapping out the legal framework of the two SARs in accordance with the Chinese constitution, regulating the regional systems practiced in two regions, etc. All of those powers will derive from a concept of state sovereignty, and will be existing power of a sovereign country. It is a definite legal fact and a basic premise that Hong Kong and Macau have returned to the motherland, being under the sovereign power and governance of China. To admit this fact, we could not deny the state’s power to govern the two special administrative regions. As to the ways of governance, we will discuss in later sections.
II. The basic state policy of “one country, two systems” in administering Hong Kong and Macau
For China, how to govern Hong Kong and Macau is a question faced by the government at the same time when the government decided to take back the two regions; while to maintain long-term prosperity and stability of Hong Kong and Macau is an equally important goal with maintaining the national unification and territorial integrity. In view of the history and reality of Hong Kong and Macau, and the difference between the two SARs and the mainland, the state did not adopt the existing nationally unified governing model in two SARs, having no intention of transplanting the mainland system and governing model to Hong Kong and Macau, nor did the state directly designate officials to administer local affairs. Instead, the central authority followed a basic national policy of “one country, two systems”proposed by the old generation of leaders represented by Deng Xiaoping. The so-called “one country, two systems”means that on the premise “one country”, the two SARs will be allowed to maintain and develop in the long run the capitalist system, at the same time, Hong Kong people will administer Hong Kong by themselves, Macau people will administer Macau by themselves, and both SARs will enjoy high degree of autonomy under the framework of the Basic Law. In other words, “one country, two systems” could be understood as a guiding principle or means adopted by the state (through its central authority) to exercise state sovereignty in administering Hong Kong and Macau at a new era.
The “one country, two systems” principle is a holistic guideline consisting of two parts that are interdependent and interrelated. However, it should be noted that the two parts are not with equal importance because “one country” is at dominating position and highlighting the state sovereignty and its unified power of governing. On the premise of“one country”, we have “two systems” and two basic laws guaranteeing coexistence and development of “two systems”. Single-sided emphasis of “two systems”, especially the one system practiced in Hong Kong and Macau, will lead to devastated end.
“One country” and “two systems” in essence will be a relationship of dominating and being dominated, determining and being determined, also a reflection of relationship between central authority exercising governing power on behalf of the state and the local regions. Accurate and comprehensive realization of the relationship between “one country” and “two systems” is key to the implementation of the guiding principle.
III. Hong Kong and Macau special administrative regions under the Chinese constitutionalism
Constitutionalism could be generally understood as the structure and formation of a state on the basis of the constitution. The return of Hong Kong and Macau to the mother land indicates that the two regions have been completely free from the constitutional framework of the Great Britain and Portugal and taken over by the Chinese constitutionalism. Similar to most countries in the world, China adopts a unitary or centralized structure of state, in which the relationship between the state holistic power and the power of its constituting part will be regulated, a centralized political tradition that could be dated back to the Qin Dynasty two thousand years ago. The country now establishes its unitary structure of state upon the basis of a constitution which is the only one basic law across the land, with only one top state organ of power and one top executive organ. Under the current constitutionalism, all state powers have been centralized to the central authority. The central authority is responsible to govern the country in accordance with the law, and out the state’s administerial need, the whole country has been divided into different administrative regions under the sanction of the central authority. There are now in China twenty two provinces, five minority autonomous regions, and four municipalities under the direct control of the central government, amounting to thirty one tier one local administrative regions. Hong Kong and Macau are the most recent additions to the tier one ranking of China’s administrative regions, and both would be obliged to the constitutional rule of the country. The central authority’s rule in Hong Kong and Macau is an innate power towards its own territorial instead of a newly invoked power that is forced upon the two regions. This power exists from the moment that China recovered its sovereign power in Hong Kong and Macau, and will be seen during the whole process of the implementation of one country two systems.
The Constitution of China and basic laws of Hong Kong and Macau provide for the legal position of the two special administrative regions in China’s constitutionalism: Hong Kong and Macau are an inalienable part of the People’s Republic of China, with high degree of regional autonomy and under the direct control of the central government, which indicates that the central authority has the power to govern its two special administrative regions and the two regions are subordinated to the control of the state. Under such a system, Hong Kong and Macau have been permitted to practice a different social system, enjoying at the same time high degree of autonomy unavailable to any other mainland administrative regions in our unitary country. They are both exceptions an significant breakthroughs. However, this kind of exception and breakthrough will not suffice to change the legal position of both SARs, nor to say their relationship with the central government. We often mention the concept of state identity, which will embody a close association with the state governance.
IV. Major contents of the state’s power to govern Hong Kong and Macau
The State’s power to govern Hong Kong and Macau basically is a part of the state’s holistic power to govern its territory, which is also a concrete reflection of the exercise of the state’s sovereign. Seen from a perspective of constitutionalism, the power to govern will be realized by the central authorities including the National People’s Congress and its standing committee, President of the P.R.C. and the State Council, who would be generally called “the central” or“zhongyang”.
In accordance with article thirty one, sixty two and eighty nine of the Constitution of P.R.C, as well as two basic laws in Hong Kong and Macau, the central authority’s constitutional power to govern Hong Kong and Macau will cover three aspects: firstly, to formulate basic guidelines and policies after recovering of sovereign rights in Hong Kong and Macau; secondly, to establish Hong Kong and Macau special administrative regions and to formulate basic laws for the two SARs; thirdly, the central authority, in accordance with the basic laws, begins to exercise its power to govern the two SARs and deal with local affairs. The first two aspects could be considered “past tense” powers, while the last aspect is an ongoing power that has been contained in explicit words or in an implicit way and would be elaborated on in the following list:
1. power to appoint the chief executive of Hong Kong SAR and its major officials (article 15, 45, 48, 90 of the Basic Law of Hong Kong);
2. power to determine the implementation of national laws in Hong Kong SAR (article 18 of the Basic Law of Hong Kong);
3. power to interpret the Basic Law (article 158 of the Basic Law of Hong Kong);
4. power to revise the Basic Law (article 159 of the Basic Law of Hong Kong);
5. power to determine rules of appointing or electing the chief executive of the SAR, and the right to revise rules concerning the election of the SAR’s legislative body(appendixes one and two of the Basic Law );
6. power to supervise the legislations produced by the SAR’s legislative body (article 17 of the Basic Law);
7. power to administer foreign affairs relevant to the Hong Kong SAR (article 13 of the Basic Law);
8. power to administer defense affairs relevant to the Hong Kong SAR (article 14 of the Basic Law);
9. power to decide on new delegation of authority to the Hong Kong SAR (article 20 of the Basic Law);
10. power to declare a state of emergency in the Hong Kong SAR (article 18 of the Basic Law).
The central government has some other powers implied in the basic law text, except for powers mentioned explicitly by the Basic Law. For example, article twelve of the Basic Law includes the regulation that the Hong Kong SAR is under“direct control” of the central government when providing for the legal position of the SAR. The Basic Law itself does not elaborate on “direct control”, but in the Constitution we read in provision four article 89 that the central government would lead the work of state executive organs at various levels, which could be interpreted as a general provision implying central government’s power to govern the Hong Kong SAR. Another example will be article 43 of the Basic Law, in which the chief executive is supposed to “report”to the central government, but there is no elaboration on concrete procedure of reporting. The following provision two of article 48 says that the chief executive “is responsible for implementing” the basic law; the provision also provides for that the SAR government must report its financial budget and final accounts of the revenue to the central government, reporting its decisions about major personnel changes, carrying out orders of the central government concerning affairs mandated in the Basic Law, dealing with centrally sanctioned foreign affairs and other affairs, etc, which indicates that the central government could supervise and mandate specific executive affairs concerning the SAR government.
Determined by a constitutional structure based upon a unitary power relationship between the central and the local, there is no such a problem of “residual power” between Hong Kong and the central government. The theory of residual power is peculiar to federalist states, but could not be applied to Hong Kong. Hong Kong does not have inherent power and its local jurisdiction (autonomy) has been strictly restrained by specific provisions in the Basic Law, including only powers that have been authorized by the central government. If there exist some powers that would be relevant to the local administration but not be explicitly sanctioned by the Basic Law, those powers in principle should be reserved to the central government. However, the central government may at any time decide to confer those powers on the Hong Kong SAR according to the local need and practical situation(article 20 of the Basic Law). In accordance with the Basic Law of Macau, the above regulating model, except for some particular exceptions, applies also to Macau SAR.
V. State’s power to govern and its relationship with autonomy of SARs
1. Two aspects of the state’s dominion over Hong Kong and Macau
The state’s dominion over Hong Kong and Macau has undergone fundamental change since the returning of both regions to the motherland. Before their returning, Hong Kong and Macau were respectively under the colonial rule of the Great Britain and Portugal. The two foreign powers directly appointed governors to rule the two overseas colonies, which in essence would be a model featured by the British people governing Hong Kong and the Portuguese governing Macau. There was no such a thing as Hong Kong and Macau people’s self-rule, not to mention a high degree of autonomy in two regions. According to the guideline of “one country, two systems” and the Basic Law, the state’s dominion over two former colonies covers two aspects: on the first level is the state’s direct dominion over Hong Kong and Macau, and the central authorities on behalf of the state will be in charge of conducting affairs relevant to state sovereignty or affairs involving both the central and the two SARs; on the lower level is the administering of local affairs by local authorities under the sanction of the state, featuring the local people’s self-rule.
The dominion on the above two levels diversifies greatly in terms of both the source of governing power and nature. The state’s dominion over two SARs indicates the governing power of the central authority, reflecting the “one country”guideline; while the local self-rule signifies “two systems”, guaranteeing the autonomy of both regions and their internal rules. The state’s dominion over Hong Kong and Macau is based upon its sovereignty, and the latter power of self-rule comes from local administering functions sanctioned by the state. Both dominions are based upon the Constitution and the Basic Law, an integral part of practicing one country two systems, Hong Kong and Macau people ‘s self rule and high degree of autonomic powers.
2. Better understanding high degree of autonomy enjoyed by Hong Kong and Macau
To better understand high degree of autonomy enjoyed by Hong Kong and Macau will help us to better understand the state’s dominion over both regions and deal with the relationship between their high degree of autonomy and state’s power to govern. Hong Kong and Macau people’s self-rule, a high degree of autonomy, these are not contents covered by the concept of dominion power over Hong Kong and Macau. The interpretation of autonomy of both regions should be separated from the principle of one country two systems and the Basic Law.
Seen from the perspective of source of power and its nature, a high degree of autonomy enjoyed by both SARs is not an inherent power, but a conferred power after the returning of both regions to the motherland. The power comes from the state, the guiding principle of one country two systems, and the Chinese constitutionalism. Here, the state authorization doesn’t mean that the state itself has given up its powers, nor has it been deprived of powers. It is a specific means to exercise the state power, a reflection of the will of the sovereign through authorization. We may well say that a high degree of autonomy enjoyed by Hong Kong and Macau is a manner that the state exercises its dominion over Hong Kong and Macau. The autonomy in essence is a kind of state authorization, a power derived from the state sovereignty and authorized by the state to administering local affairs.
In terms of the scope of power, a high degree of autonomy enjoyed by Hong Kong and Macau would be conditioned and restrained. Firstly, the precondition should be “one country”, namely a sovereign and unified state; participants to the autonomous rule should be patriotic Hong Kong or Macau local people. The exercise of autonomy can only be realized under the presupposition of China’s sovereignty, Chinese Constitution and the basic laws in both regions. Secondly, the exercise of power and rights will be accompanied by corresponding obligations. Hong Kong and Macau should shoulder the responsibility of safeguarding state sovereignty, territorial integrity and core interest of the country while enjoying a high degree of autonomy. Meanwhile, the exercise of autonomy should not be in conflict with the rights and interests of the country. Article 23 of the Basic Law provides for these obligations in an explicit way. Thirdly, the autonomy enjoyed by both SARs is restrained rather than unrestrained or complete autonomous self-rule. Hong Kong and Macau will enjoy high degree of autonomy, administrative power, legislative power, independent judicial and final adjudicative powers only in local affairs that are irrelevant to state sovereignty and relationship between the central state and two SARs. Hong Kong and Macau special administrative regions are “under the direct control of the central government”, which indicates exactly that both regions are subordinated to the central and their autonomy is restrained and conditioned. There are certain Hong Kong people who are proposing an onesided exaggeration of autonomy of Hong Kong, trying to gain unrestrained or complete autonomy of the region, whose opinions and behaviors are in contradiction to the principle of “one country, two systems”, not in conformity with the national constitutionalism. Hong Kong, in their imagination, will become an independent or semi-independent political entity, and the “one country” premise will be endangered with the emergence of a state within a state or two states.
The accurate exercise of dominion over Hong Kong and Macau should be a combination of state’s dominion power and autonomy of two SARs. On the one hand, we should ensure that the state should exercise its sovereignty in Hong Kong and Macau, and the central authorities should exercise their powers in accordance with law; in the meanwhile, the high degree of autonomy in both regions should be guaranteed with local affairs not being interfered. On the other hand, Hong Kong and Macau, in practicing a high degree of autonomy and enjoying authority conferred by the central government, should comply strictly with the “one country” principle, safeguarding the sovereignty, unification and interests of the motherland. A high degree of autonomy doesn’t mean autonomy free from “one country” system, but a gradual integration into the central government. The dominions over Hong Kong and Macau on such two levels would be distinctive from each other and indispensable. The cooperation between the two will lead to success, otherwise interests of both parties would be damaged.
The state’s dominion over Hong Kong and Macau, and their high degree of autonomy reflect essentially the relationship between “one country” and “two systems”, the central and the local. It’s a core question in implementing the principle of “one country two systems” as well as a new question faced by the country’s constitutional system after the returning of both former colonies to their motherland. No ready lessons are available in this regard. However, we have accumulated valuable experience during the past decade. To better deal with their relationships, we need continuous study, discussion and improvement to reinforce our accurate understanding of the principle of “one country two systems”in a bid to achieve long-term stability of the country and longterm prosperity of both Hong Kong and Macau.