|
The Constitutional Orders of ‘One Country, Two Systems’
233
The Joint Declaration contains detailed provisions on the systems and pol-
icies the PRC declared for practice in the HKSAR to be established on 1 July
1997. The Joint Declaration is a treaty that is binding on the Chinese and
British governments in international law, but the PRC would need to translate
its provisions into domestic law so as to provide a legal basis for the operation
of the HKSAR. The PRC undertook in the Joint Declaration that it would
enact such a law.
6
The drafting of such a domestic law began in 1985 and was
completed in 1990, when the National People’s Congress (NPC) of the PRC
enacted the Basic Law of the HKSAR of the PRC. This Basic Law would
serve as a ‘mini-constitution’ for Hong Kong after 1997. It provides for the
constitutional relationship between the HKSAR government and the central
government in Beijing; it defines the structure, mode of formation and pow-
ers of the HKSAR government; it guarantees the rights and liberties of Hong
Kong people; it sets out the social and economic policies and systems to be
practised in the HKSAR; and it also makes provisions for the continuation of
treaties previously applicable to Hong Kong in respect of the HKSAR, as well
as for the HKSAR government to conduct certain external affairs under the
authorisation of the central government.
8.2.2. The Case of Macau
The successful conclusion of the Sino–British Joint Declaration in 1984 paved
the way for the settlement of the question of Macau’s future by diplomatic
negotiation between the Chinese and Portuguese governments. The geo-
graphical size of Macau was less than 30 square kilometres, much smaller
than the 1,100 square kilometres of Hong Kong. The Portuguese settlement
in Macau had begun three centuries earlier than the British colonisation
of Hong Kong. The former took place in the mid-sixteenth century, when
China was under the rule of the Ming dynasty, the last of the dynasties of the
Han Chinese.
7
After Hong Kong became a British colony in 1842, Portugal
sought to turn Macau formally into a Portuguese colony. In 1845, Portugal
declared Macau to be a free port and appointed a Governor of Macau. In
1887, Portugal and the Qing Imperial Court entered into the Treaty of Peking,
providing expressly for Portuguese governance of Macau. Although this treaty
practised in the Hong Kong Special Administrative Region’, and ‘Hong Kong’s previous capi-
talist system and life-style shall remain unchanged for 50 years’.
6
See the Joint Declaration, Article 3(12).
7
The Qing Imperial Court was of Manchu origin from the geographical north-east of the cur-
rent territory of the PRC. It imposed its rule on China by overthrowing the Ming dynasty and
subjugating the Han Chinese to its hegemony.
234
Albert H. Y. Chen and P. Y. Lo
was abrogated by agreement between the Portuguese government and the
Nationalist government of the Republic of China in 1928, Portuguese admin-
istration of Macau continued.
8
After the 1974 Revolution in Portugal, the new government offered to return
Macau to China as part of its policy of dismantling colonial rule of territories
beyond the seas, but the offer was declined. In 1979, Portugal and the PRC
established diplomatic relations. In October 1984, China’s paramount leader
Deng Xiaoping declared that the resolution of the question of Macau’s future
would follow the example of Hong Kong. In 1986, the Portuguese and Chinese
governments commenced negotiations, leading to the conclusion in 1987 of
the Sino–Portuguese Joint Declaration on the Question of Macau (SPJD).
The SPJD was similar to the Sino–British Joint Declaration on the Question
of Hong Kong (SBJD) in both structure and content. The former consists of
a main text and two annexes, while the latter consists of a main text and three
annexes. The main texts of the SPJD and SBJD consist of seven paragraphs
and eight paragraphs respectively. Each paragraph in the SPJD has a counter-
part in the SBJD, except that the subject matter of the first paragraph of the
SPJD corresponds to that covered by the first two paragraphs of the SBJD.
Whereas the SBJD provided for the reversion of Hong Kong to China in 1997,
the SPJD provided for the reversion of Macau in 1999. The longest paragraph
in the main text of the SPJD is paragraph 2, which is divided into twelve
sub-paragraphs and sets out the basic policies of the PRC regarding Macau.
This corresponds to paragraph 3 of the main text of the SBJD, which is sim-
ilarly divided into twelve sub-paragraphs, setting out the basic policies of the
PRC regarding Hong Kong. Most of the sub-paragraphs of paragraph 2 of
the SPJD have counterparts in paragraph 3 of the SBJD.
9
The lengthy Annex I to each of the two Joint Declarations elaborates the
basic policies of the PRC regarding the HKSAR and MSAR respectively. Both
Annexes are divided into fourteen sections dealing with various topics. Most
of the sections in Annex I to the SBJD and their content have counterparts in
Annex I to the SPJD.
10
As in the case of the SBJD, the SPJD provides that the PRC’s basic policies
towards the future SAR as set out in the main text of the Joint Declaration and
as elaborated in Annex I thereto will be stipulated in a Basic Law to be enacted
by the NPC of the PRC, and ‘will remain unchanged for 50 years’. Following
8
In 1928, the Sino–Portuguese Treaty of Friendship and Trade was concluded.
9
Paragraphs 2(5) and 2(11) of the SPJD do not have counterparts in paragraph 3 of the SBJD.
10
Sections 8 (shipping) and 9 (civil aviation) of Annex I to the SBJD do not have counterparts in
Annex I to the SPJD. The subject matter of section 14 (land leases) of Annex I to the SPJD is
covered by Annex III (land leases) to the SBJD.
Do'stlaringiz bilan baham: | 
