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Hong

Kong

Three features showing its high-autonomy with the
reference to specific provision in the Hong Kong Basic
Law,


Luk T. W., Bryan

Hong Kong, indeed, is enjoying an unprecedented high degree of autonomy.


Comparing to other nations in globe, few countries would get the same degree
of autonomy same as Hong Kong.1 I would cite the time-honoured passage from
Albert H. Chen is The Concept of One Country Two Systems, to explain the
three most essential features of high autonomy in Hong Kong. His passage has
included six different features, which are authority of handling economic affair;
Independence economic and taxation system, and custom territory; Immunity
from laws enacted by China; The power of immigration control.
The first most essential feature of the Hong Kongs high degree of autonomy is
that SAR could use the name of Hong Kong, China to enter into economic
and cultural relations with other countries and participates in some
international organizations (Article 150 153).2 By applying this special right
to Hong Kong, it gives a unique authority to Hong Kong government handling
the administrative and external affairs by itself (Article 22(1)). For example,
Hong Kong has applied diplomatic sanctions to the Philippines in 2014, where
the government has canceled the visa-free privileges for Philippine official and
diplomats.3
Furthermore, the government could attend international conferences and sign
agreements with other nation using the name of Hong Kong, China (article 151
and 152). As a result, in 2010, Hong Kong has concluded around 20 foreign
agreements with foreign countries regarding to the matters of economic and
financial cooperation.4
The foreign affairs powers that Hong Kong government possessed are unique
and unprecedented. It is because there is no other city in the globe that has
such a power. For illustration: It is not impossible for London or New York
applies the sanction policy to the Philippines. It thus has enhanced the
sovereign autonomy of Hong Kong government, and allowing Hong Kong to
act like a country rather than a city. However, in fact, Central government
claims that Hong Kong is a local government, not a state of a federal nation.5
On the contrary, the federal state in United States is even less powerful than
Hong Kong. By enjoying this power, Hong Kong government can freely operate
capitalist system, like free market and laissize faire policy, without the fear of
interference from China, and to ensure the capitalist idea on economy sector
would not be affected by the socialist idea from Mainland China.

1 Gitting D., How high a degree of autonomy, Chapter 4 of Course Manual of Hong Kong Basic

Law, HKU School of Professional and Continuing Education (SPACE), page 28


2 Gitting D., How high a degree of autonomy, Chapter 4 of Course Manual of Hong Kong Basic
Law, HKU School of Professional and Continuing Education (SPACE), page 28
3 Ada Lee(2014) Hong Kong Cancels Visa-Free Privileges for Philippines officials and diplomats
Hong Kong News South China Morning Post. Retrieved from
http://www.scmp.com/news/hong-kong/article/1416732/hong-kong-cancels-visa-freeprivileges-philippines-officials-and?page=all (11th March 2014)

5 Xiao WeiYun(1990), One Country Two System And The Basic Legal System Of Hong Kong 12433

The second vital feature of high degree of autonomy in Hong Kong would be
99% of the laws enacted by Central Legislation are not applicable to the
SAR (Article 8). We must understand that the social, economic and legal
systems in Hong Kong are different from those of the rest of China. That is why
99% of the mainlands law cannot apply in Hong Kong. Therefore, there are
only 11 national laws (Annex III in Basic Law) that would apply in Hong Kong
region, which are the law of nationality, garrison in HKSAR, national emblem,
National Flag law and et cetera. Hence, more importantly, the common law
system would be preserved (Article 8).
The reason I choose this as the second choice is because it is sine qua non to
maintain the social order and protect the public interest along with personal
rights and freedoms in Hong Kong by preserving the common law system, as
the existing social structure and order are eventually following the rules from it.
If all the Central national laws apply in Hong Kong, the way of living might be
changed dramatically and the people might face a political penalty, thus
causing chaos and social confusions.
Thereupon, this feature helps to maintain the system of check and balance in
Hong Kong, so that the courts in Hong Kong would be able to practice law
through the method of doctrine of stare decisis (Article 81); the legislative
Council could enact the law by itself, which is applicable and compatible with
the environment and situation of the Region (Article 73). Due to this feature,
Hong Kong could still operate in a different system in legal and political sector
comparing to the rest of China and maintain the principle of One Country
Two Systems by upholding and enacting the law.
The third most important feature of assisting Hong Kong to operate the Two
System is Hong Kong residents do not have to pay any tax to the central
government (Article 106). It is an ad hoc policy that agreed in the Joint
Declaration, in order to protect the interest of Hong Kong people and prevent
Central government introduces a heavy tax burden on Hong Kong tax payers.
Under this provision, Hong Kong is sui generis as it is the only region in China,
excluding Macau, which does not need to pay any tax to Central government.
Therefore, the taxes collected by the SAR are use exclusively and domestic use
only. The separate taxation system has limited the power and influence of
Chinas authority in Hong Kong. It maintains differences in economic sector
between Hong Kong and other part of Mainland.
As we know that Hong Kong tax system is indeed simple and low, in which
most of the Hong Kong residents just need to pay 17% tax rate.6 However, in
China, as the economic system is based on the planned economy (socialism on
economy), the tax system is much more complicated than Hong Kong. The
range of the tax rate is 4%-45% in which the tax rate on the individual is

6 Inland Revenue Department, Tax Rate- Tax information, Inland Revenue Department of The

Government of Hong Kong Special Administrative Region. Retrieved from


http://www.ird.gov.hk/eng/tax/ind_tra.htm (30/3/2014)

depends on his monthly income.7 Therefore, the tax rate system in Hong Kong
would be an identical mean to show the system of free-market (Article 5) and
to ensure the economy in Hong Kong to function in a proper and noninterference manner.
To conclude, the three points that have mentioned above are interrelated and
showing the high degree of autonomy that Hong Kong government is enjoying
where the sovereignty is even higher than the federal state in United States.
They are operating an important function of maintaining the social order of
Hong Kong society. For instance, the independent legal system is used to
uphold the previous laws; the legislature enacts the laws that are applicable in
Hong Kong and also tackle the defect of the common law system. Plus, the
independent tax system is avoiding the economic suppression from Central
government and finally the unique power of foreign affairs that is granted to
Hong Kong government allows government to develop the economy by itself. If
any one of the features is missing, the entire Hong Kong system would be not
feasible and might not able to maintain the operation of One Country Two
System anymore.


7 Michael J. Moser, Winston K. Zee (1999), the calculation of tax the individual income tax,

China Tax Guide (third edition), Oxford University Press, Published in New York, United States .
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