摘要(Abstract)：
自讨论政改以来,香港一些人士不断提出必须以"公民提名"去提名特首候选人;然而,《基本法》从未提及"公民提名"。《基本法》作为具体落实"一国两制"的最高法律,其地位仅次于《中国宪法》。本文作者认为香港人探讨政改之路的前提是,必须先了解《基本法》在"一国两制"下的宪制角色。作者认为香港要走自己的民主路,必须要让香港人认识《基本法》的本质、《基本法》与中国宪制的关系等,并提出在政改的路途上,无论哪个方案,都必须回到《基本法》,任何偏离都是浪费时间。对香港来说,政治改革必须建立在一国两制及《基本法》的宪制基础上,过程才得以稳定和平,否则只会事倍功半。
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作者(Author): 梁美芬;
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参考文献(References)：
- 1 PRISCILLA LEUNG MEIFUN,HONG KONG BASIC LAW:HYBRID ON COMMON LAW AND CHINESE LAW(Lexis Nexis,2007).
- 2 Id.
- 3 According to the Decision of National People's Congress on June 28,1990,Chinese version prevails that if the English version and Chinese version of the Basic Law contradict with each other.
- 4 Prof.Xu Chongde said that"subsequent to 2007"should refer to years after 2007,whereas Prof.Xiao Weiyun insisted that the legislative intent of the phrase should include 2007 as ten years after the handover was the time to review the political structure in Hong Kong.PRISCILLA LEUNG MEIFUN,supra note 1,238-256.
- 5 The Interpretation by the Standing Committee of the National People's Congress of Article 7 of Annex I and Article III of Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China(adopted at the Eighth Session of the Standing Committee of the Tenth National Peoples Congress on April 6,2004).
- 6 Decision of the Standing Committee of the National People's Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region in the Year 2007 and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2008(adopted at the Ninth Session of the Standing Committee of the Tenth National People's Congress on April 26,2004).PRISCILLA LEUNG MEIFUN,supra note 1,238-256.
- 7 First paragraph of article 45 of the Basic Law states:"the method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress.The ultimate aim is the selection of the Chief Executive by universal suffrage upon the nomination by a broadly representative nominating committee in accordance with democratic procedures".
- 8 Para 1 and 2 of Annex I states:"the Chief Executive shall be elected by a broadly representative Election Committee in accordance with this Law and appointed by the Central People's Government.The Election Committee shall be composed of 800 members...".
- 9 Supra note 6.
- 10 Consultation Document on the Methods for Selecting the Chief Executive and for Forming the LegCo in 2012.See also Decision of the Standing Committee of the National People's Congress on Approving the"Amendment to Annex I to the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China Concerning the Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region"(adopted at the Sixteenth Session of the Standing Committee of the Eleventh National People's Congress on August 28,2010).
- 11 Benny Tai,Civic Disobedience Is the Biggest Damaging Weapon,Hong Kong Economic Journal(2013).
- 12 Chen Wenmin,The Principle of Loving the Motherland and Loving Hong Kong Was Contained in the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China,the Provisions of Which Safeguard Hong Kong People Enjoy the Right of Universal Suffrage,Hong Kong Economic Journal(2014);Lin Xingzhi,The Settlement of Problems through Collaborative Efforts Instead of One-side Comments,Hong Kong Economic Journal(2013);Lin Xingzhi,Serious Treatment of Universal Suffrage and the Necessity of Civic Nomination,Hong Kong Economic Journal(2014);Chen Jialuo,The Details of Preselection Filters,Also on Measures for the Election of the Chief Executive of Hong Kong by Universal Suffrage,Ming Pao(2013).
- 13 Mo Jihong,The Obligation of Loving the Motherland and Loving Hong Kong and Promotion of Public Appearance of Candidates under Oath,Wenwei Po,April 16,2014;see also Rao Geping,International Covenant on Human Rights in Hong Kong:Misinterpretation of International Covenant,Sino News,August 29,2014.
- 14 THE STATE COUNCIL INFORMATION OFFICE,PRC,THE WHITE PAPER ON THE PRACTICE OF THE"ONE COUNTRY,TWO SYSTEMS"POLICY IN THE HONG KONG SPECIAL ADMINISTRATIVE REGION(2014).
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- 16 Decision of the Standing Committee of the National People's Congress on Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016(adopted at the Tenth Session of the Standing Committee of the Twelfth National People's Congress on August 31,2014).
- 17 Hong Kong Federation of Students Urges Dong's Clear Response,"One Country,Two Systems"Will Enter in Winter without the Examination of the 831 Decision,Hong Kong Economic Journal(2014).
- 18 HK BASIC LAW MOVE"TIMELY,NECESSARY",CHINA DAILY,at http://www.chinadaily.com.cn/english/doc/2004-04/07/content_321168.htm(Last visited on April 7,2007).
- 19 Section 7 of Annex I,Basic Law.
- 20 PartⅢof AnnexⅡ,Basic Law.
- 21 Article 88 of The Legislation Law of PRC promulgated in 1994.
- 22"Know yourself and know your enemy,you will win every war"in SUN TZU,THE STRATEGY.
- 23 PRISCILLA LEUNG MEIFUN,supra note 1,43.
- 24 Article 5 of Basic Law¶ 2 of the Preamble of the Basic Law.
- 25 The good side of the existing system of a capitalist Hong Kong includes a low tax system,free economy,free port and a very healthy financial pocket.
- 26 Aristides Hatzis,Professor at the University of Athens,also complains that"spending is popular for politicians because it buys votes in the short-term;after all,in the long-term we will all be dead,or at least not in power.It is popular with the voters because they tend to see government benefits as a windfall.They do not see the money as coming from their own pockets,but from"the government",or at least from someone else's pockets".
- 27 WANG ZHENMIN,NOMINATION RIGHTS SHOULD BE EXERCISED BY ELITES,SING TAO NEWS,at http://std.stheadline.com/archi ve/fullstory.asp?andor=or&year 1=2014&month 1=1&day 1=19&year2=2014&month2=1&day2=19&category=all&id=20140119a07&keywordl=&keyword2=(Last visited on January 19,2014).
- 28 According to article 43 of the Basic Law:"the Chief Executive of the Hong Kong Special Administrative Region shall be accountable to the Central People's Government and the Hong Kong Special Administrative Region(HKSAR)in accordance with the provisions of this law".The Chief Executive of the HKSAR Government has a dual role:he/she is both the head of Hong Kong SAR Government as well as an official under the State Council of the Central Government.In the mind of the Central Government,the method of selecting the Chief Executive definitely concerns Central-local relationship.Apart from the HK Government,the Central government also enjoys the power to initiate the amendment proposal concerning political reform if they find there is a need.This is a reasonable interpretation under"One Country Two Systems".
- 29 The Basic Law is the highest law of Hong Kong and a special national law in China.See PRISCILLA LEUNG MEIFUN,supra note 1,12.
- 30 Article 45 of the Basic Law says:the method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress.The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.
- 31 Article 68 of the Basic Law states:Hong Kong's method for forming the Legislative Council shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress.The ultimate aim is the election of all the members of the Legislative Council by universal suffrage.
- 32 This is the difference between common law and Chinese law.In China,while their courts enjoy judicial interpretation power in adjudicating,NPCSC as the highest authority also reserves legislative interpretation power in case the ambiguity of the law arises and there is the need to interpret the law for the good of the country.This is the characteristics of China law while in common law,only the courts have interpretation power on laws;no other authority enjoys such power apart from the court.This sharp difference between common law and Chinese law explains why there is confrontation between CFA and NPCSC when the latter exercises their interpretation power under article 158(1)of the Basic Law.
- 33 For example,article 42 of the PRC Legislation Law states:the power of the interpretation of laws shall be vested in the Standing Committee of the National People's Congress.Under the following circumstances,the Standing Committee of the National People's Congress shall deliver its interpretation:(1)The stipulations of the laws require clearer and specific meanings;(2)After the laws have been promulgated,there appear"new circumstances"which require stipulations on the basis of their application.
- 34 Article 63 of the PRC Legislation Law stipulates that:the people's congresses and their standing committees of provinces,autonomous regions and municipalities directly under the Central Government may,according to the specific situations and needs of their administrative regions,enact local regulations which shall not contravene the Constitution,laws and administrative regulations....When the standing committees of the people's congresses of provinces and autonomous regions in examining the local regulations reported by the large cities find that the local regulations contravene the regulations of the people's governments of the provinces or autonomous regions concerned,they shall deal with the issue accordingly.
- 35 PRISCILLA LEUNG MEIFUN,supra note 1,12-13(2007).See PrisciUa Leung Meifun,Introduction,China Law Reports(1992-1994),Butterowrths Asia,177(2002).See XU CHONGDE,CHINESE CONSTITUTIONAL LAW,at 12-13(People's University Press,1989).
- 36 Article 64 of the PRC Legislation Law.Article 64 states,for example:(1)"Matters which require concrete decisions to meet the'specific needs'of the local administrative regions in order to enforce the relevant laws and administrative regulations.(2)Matters within the sphere of local affairs which require local regulations.Provinces,autonomous regions and municipalities directly under the Central Government may,according to the"specific situations and needs"of their regions,enact local regulations.After the laws and administrative regulations promulgated by the country become effective,the local regulations shall,to the extent of inconsistency,become ineffective and the enacting authority shall promptly amend or repeal such local regulations.See Paragraph 3of article 17 of the Basic Law."
- 37 PrisciUa Leung Meifun,Basic Law Disputes and PRC Law on Legislation,Hong Kong Lawyer,88.
- 38 Id.
- 39 Articles 158 and 159 of the Hong Kong SAR Basic Law.See PRISCILLA LEUNG MEIFUN,supra note 1,12-13.
- 40 Article 64 of PRC Legislation Law.
- 41 Decision of the NPC to approve the Proposal of the Basic Law Committee on April 4,1990.According to article 17,18,158,159the Hong Kong Basic Law Committee shall be consulted before the interpretation,amendment,returning of Hong Kong laws and adding or deleting national laws into Annex HI of the Basic Law.
- 42 Paragraph 2 of article 17 of the Basic Law indicates that laws enacted by the legislature of the Hong Kong SAR must be reported to the NPCSC"for record";and notes that the reporting for record shall not affect the entry into force of such laws.Article 88 of the PRC Legislation Law states a similar mechanism,"administrative regulations shall be reported to the NPCSC'for record';local regulations enacted by people's congresses and their standing committees of provinces,autonomous regions and municipalities directly under the central government shall be reported to the NPCSC and the State Council'for record';provisions enacted by authorised authorities shall be reported to the authority prescribed by the authorisation for record."Paragraph 3,as quoted above,states that if the NPCSC,"after consulting the Committee for the Basic Law of the Hong Kong SAR Standing Committee may'return'the law in question but shall not amend it...",on April 4,1990.
- 43 Hints are found in the PRC Legislation Law.For example,PRC Legislation Law explains the applicability of reporting for record.Article 88 of the Law indicates that according to the authority framework,the NPC has the power to amend or repeal inappropriate laws enacted by the NPCSC,and has the power to repeal autonomous regulations and separate regulations already"approved"by the NPCSC that are later found to contravene the Constitution.Article 89 of the Law frequently mentions that all administrative regulations,local regulations,autonomous regulations,separate regulations and rules shall be reported to the responsible organisations in accordance with the following requirements within 30 days of promulgation"for record".
- 44 The NPC Decision of the Preparatory Committee on establishment of the Provisional Legislative Council in HKSAR on March 24,1996.
- 45 The 2014 Decision led to a big controversy in Hong Kong.Some oppositions suggest to reprimand the NPCSC and to declare the2014 Decision to be against the Basic Law and,therefore,void.These views reflect that many people in Hong Kong still misunderstand the constitutional framework of One Country Two Systems.According to the Chinese legal hierarchy and constitutional framework,NPCSC is a national legislature while Hong Kong Legislative Council is a local legislature.Hong Kong Legislative Council in fact has no jurisdiction to reprimand the NPCSC.
- 46 The 2011 Election Committee sub-sector elections:Catering(17),Commercial(First)(18),Commercial(Second)(18),Employers'Federation of Hong Kong(16),Finance(18),Financial Services(18),Hong Kong Chinese Enterprises Association(16),Hotel(17),Import and Export(18),Industrial(First)(18),Industrial(Second)(18),Insurance(18),Real Estate and Construction(18),Textiles and Garment(18),Tourism(18),Transport(18),Accountancy(30),Architectural,Surveying and Planning(30),Chinese Medicine(30),Education(30),Engineering(30),Health Services(30),Higher Education(30),Information Technology(30),Legal(30),Medical(30),Agriculture and Fisheries(60),Labour(60),Religious(60),Social Welfare(60),National People's Congress(36),Legislative Council(60),Chinese People's Political Consultative Conference(55),Heung Yee Kuk(28),Hong Kong and Kowloon District Councils(59),New Territories District Councils(62).
- 47 Id.
- 48 Annex I of the Basic Law
- 49 WANG ZHENMIN,supra note 27.
- 50"Golden egg"is the nickname of Hong Kong.
- 51"Elites"refers to the top 5 percent of talents in Kong Kong.Ambrose Kam,the Administrative Absorption of Politics in Hong Kong:Emphasis on the Grass Roots Level Asian Survey IS:422-39(1975).
- 52 WANG ZHENMIN,supra note 27.
- 53 Allan Meltzer and Scott Richard,political economists at the Carnegie Mellon University highlights that"with nearly universal suffrage,the median voter has less income than the average earner.The voter with an income below the median can gain if incomes above the average are taxed,and the benefits are distributed to himself and others".Francis Castles,social policy expert in the Edinburgh University also states that politicians tend to compromise with social welfare request under the democracy and political party competition.
- 54 Priscilla Leung Meifun,The Nomination Committee Benefits Hong Kong,Ming Pao,April 14,2014.
- 55 Chen Wenmin,supra note 12.
- 56 Emily Lau Waihing,Beijing Must Keep Its Word on Universal Suffrage,South China Morning Post,April 18,2014.See Lin Lizhi,Party Nomination Talks about Hong Kong'Back on Track,InMedia,January 23,2014.
- 57 At least 72 seats from the sector of the bankers and land developers,supra note 46.
- 58 60 seats from the sector of labour union.
- 59 Gu Minkang,Strengthening and Promoting the Concept of"One Country"in Hong Kong,International Law Conference of 25th Anniversary of Hong Kong Basic Law,April 11-12,2015.
- 60 Feng Keqiang's Discussion on Civic Nomination with Students of Scholarism,at http://news.sina.com.hk/news/20130921/-6-3071603/1.html(Last visited on September 21,2013).
- 61 The Research Report on Civic Nomination,Hong Kong Policy Research Institute,September 19,2013.
- 62 Id.
- 63 Priscilla Leung Meifun,supra note 54.
- 64 Id.
- 65 ABNER GREENE,"UNDERSTANDING THE 2000 ELECTION":A GUIDE TO THE LEGAL BATTLES THAT DECIDED THE PRESIDENCY(New York University Press,2001).
- 66 At http://www.hkpri.org.hk/images/docs/nomibypetition.pdf.
- 67 RIMSKY YUEN,BASIC LAW IS CRYSTAL CLEAR ON NOMINATING COMMITTEE FOR CE ELECTION,THE STANDARD,at http://www.thestandard.com.hk/news_detail.asp?we_cat=9&art_id=142004&sid=41431347&con_type=3&d_str=20140129&fc=8(Last visited on January 29,2014).
- 68 Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong.
- 69 Speech of Deng Xiaoping at a Meeting with the Members of the Committee for Drafting the Basic Law of Hong Kong SAR on April 16,1987.
- 70 Speech of Prof.Tony Carty,Nominating Committee and International Standard under the Debate of Political Reform in Hong Kong,International Law Conference of 25th Anniversary of Hong Kong Basic Law,April 11-12,2015.
- 71 Joint Declaration,supra note 68.
- 72 Submission of Hong Kong Bar Association on the Consultation Document on Methods for Selecting the Chief Executive in 2017and for Forming the Legislative Council in 2016,paragraph 12.
- 73 Id.
- 74 Speech of Lin Feng,International Standard and the Chief Executive Election in Hong Kong:Is Article 25(b)of the ICCPR Applicable?,Basic Law Conference at the City University of Hong Kong,September 20,2014.See footnote 61 of Lin Feng's speech(para.35 of the Documents Submitted in Compliance with a Special Decision of the Committee:United Kingdom of Great Britain and Northern Ireland-Hong Kong,CCPR/C/117,August 13,1996).
- 75 According to Human Rights Committee at the U.N.Eighty-sixth session,para.15,in Consideration of Reports Submitted by States Parties under Article 40 of the Covenant and of Country Situations:Second Periodic Report of the Hong Kong Special Administrative Region of the People's Republic of China,CCPR/C/HKG/2005/2 at CCPR/C/SR.2351."The government of the Region considered that the reservation to article 25(b)of the Covenant continued to be in force for a number of reasons.First,the reservation should be given its natural meaning,which was that the Hong Kong government,like the Government of the United Kingdom that had entered the reservation originally,reserved the right not to apply article 25(b)of the Covenant to the extent that it required the election of a legislative body by universal and equal suffrage.Secondly,looking at the purpose of the reservation,he said that the Hong Kong government,like the United Kingdom Government before it,wished to be free to introduce changes in the electoral system in a gradual and orderly manner.Thirdly,the reservation avoided the possibility of an absurdity that would frustrate both the purposes of the Covenant and the Region's long-term goals,namely,that a narrow,technical interpretation of the paragraph might allow a government to keep its legislative body partially appointed,i.e.,not fully elected,which would circumvent the purpose of universal and equal suffrage without technically violating article 25(b).Fourthly,the United Kingdom Government,a State party to the Covenant,was on record as stating that it considered the reservation as continuing,even if the Legislative Council were fully elected.Finally,the Government of the People's Republic of China has assumed the responsibility for the Cove
