“一国两制”漫谈 | 宪法、基本法和《中英联合声明》是什么关系？

　　作者：萧平

　　XIAO PING

　　资深时事评论员。

　　What is the relationship between the Constitution, Basic Law and Joint Declaration?

　　基本法源于《中英联合声明》，并拓展了联合声明中中方12条对港方针政策，因此有观点说，基本法的效力源自联合声明，英方有权依据联合声明监督香港“一国两制”的执行情况。这个说法对吗？

The Basic Law of the Hong Kong Special Administrative Region was promulgated after China and Britain signed the Sino-British Joint Declaration on the Question of Hong Kong and has elaborated on the 12 basic principles and policies regarding Hong Kong that China listed in the Joint Declaration. That is why some people argue that the Basic Law is to some extent a derivative of the Joint Declaration and Britain, therefore, has the right to monitor the implementation of “one country, two systems” in Hong Kong in accordance with the Joint Declaration. But are they correct in saying so?

　　请留意，联合声明条文中，有些是中国政府声明，有些是英国政府声明，有些则是两国政府声明。采取这种形式，是因为有些内容双方意见一致而共同表述，有些不一致则分别表述，最终求同存异形成“联合”声明。联合声明包含三项内容，一是明确香港回归，二是回归前过渡期的安排，三是回归后中国政府对港方针政策。英国政府的权利和义务在前两项，这两项已经履行完毕。第三项是中国政府自己的声明，已纳入随后产生的基本法，由中国政府依据主权在香港实施，与英国没有权利义务关系。早在中英谈判时，中方就一再强调，中国政府对港方针政策纯属中国内政，无需另一国批准或监督。中国外交部一再申明，九七后香港事务是中国内政，英国无主权，无治权，也无监督权。

Let’s not forget the Joint Declaration contains separate statements by the Chinese government and by its United Kingdom counterpart as well as their joint statements. The Joint Declaration was written this way because the two governments agreed on certain points but not on others. Thus, it was necessary to include points they agreed on and those they didn’t agree on in the Joint Declaration. As it turned out, the Joint Declaration consists of three parts: namely, confirming that China would resume the exercise of sovereignty over Hong Kong; the arrangements for the transitional period before Hong Kong officially returned to the motherland; and the fundamental policies the Chinese central government would be implementing in the HKSAR afterward. The UK government had the right and responsibility to implement the first two parts but not the final part because it no longer exercises jurisdiction over Hong Kong, and China is solely responsible for the HKSAR according to the Basic Law, which became effective at the stroke of midnight on July 1, 1997. The Chinese side stressed more than once that what policies would be implemented in Hong Kong is China’s domestic affairs and need no permission or supervision from any other country. The Chinese government has also reiterated many times over the years that the UK does not have sovereign rule, governing power or supervisory power over Hong Kong affairs, which are China’s internal affairs.

　　联合声明也不是基本法的法律基础，基本法的法律基础是中国宪法。宪法31条是特区设立和特区制度立法的依据，基本法序言写明它是根据宪法制定的。宪法是基本法的母法，没有宪法就不会有基本法。中国政府将“十二条”写入联合声明，是基本法立法思路的梳理和宣示，而不是为基本法立法授权。

The statutory basis of the Basic Law is not the Joint Declaration but the Constitution of the People’s Republic of China, of which Article 31 provides the constitutional ground for the establishment of special administrative regions as well as related legislation. The Constitution is the mother of all Chinese laws, including the Basic Law of the HKSAR. Without the Constitution, the Basic Law would not have been created. The 12 principles and policies the Chinese government put in the Joint Declaration were intended to expound the legislative ideas and rationale behind the Basic Law, rather than to authorize the legislation of the Basic Law, which was promulgated in accordance with the Constitution of the PRC, not the Joint Declaration.

　　基本法是宪制性法律，却不是香港的宪法，国家宪法是全国唯一的宪法。正基于此，香港不仅要遵从基本法，也要遵从宪法。这并不是说宪法的所有条款都直接适用于香港，而是说香港作为国家的一个地方行政区，必须承认和尊重国家的制度和体制。同时，宪法中属于“一国主权”范畴的内容，则对香港直接适用。比如，台湾是中国的一部分，完成统一祖国大业是全中国人民的神圣职责，香港当然必须遵守，不能例外。

The Basic Law is a constitutional document, but it is not Hong Kong’s constitution. China has only one constitution, which is why Hong Kong must follow not only the Basic Law but also the Constitution. It does not mean that all articles of the Constitution directly apply to Hong Kong, but rather that Hong Kong, as a special administrative region of China, must recognize and respect the country’s social system and governance system. Meanwhile, the articles of the Constitution that establish the sovereign powers of “one country” directly apply to the HKSAR. For instance, the Constitution stipulates that Taiwan is a part of China, and the reunification of the Chinese nation is a sacred duty of all Chinese people, including Hong Kong society, of course.

　　基本法于香港回归之日开始实施，却提早7年颁布，让香港同胞实实在在看到了“一国两制”未来的样貌，稳定了人心。回归后，基本法更成为“一国两制”在香港实践根本的法律保障。

The Basic Law took effect on July 1, 1997, but was promulgated on April 4, 1990. It allowed Hong Kong compatriots to see how “one country, two systems” would benefit them seven years in advance and thus eased many people’s worries about the city’s future. Since taking effect nearly 23 years ago, the Basic Law has been serving the implementation of “one country, two systems” with legal assurance.

　　“一国两制”没有经验可循，由方针构想变为具体的法律制度，是一个艰巨的再创造过程。内地和香港人士共同组成起草委员会，再由香港人士组成咨询委员会，两次公开向社会征求意见，逐条推敲打磨，耗时4年8个月。如果从80年代初“一国两制”构想提出算起，中间经历中英谈判、联合声明，再到全国人大最终通过，堪称十年磨一剑。邓小平称赞这是“一部具有历史意义和国际意义的法律”，“一个具有创造性的杰作”。基本法是“一国两制”的保护神，港人应格外珍视。

“One country, two systems” is unprecedented, which is why it went through an arduous process of reinvention from a concept into an actual law — the Basic Law. It began with a drafting committee composed of experts from both the mainland and Hong Kong, which, assisted by an advisory committee composed of Hong Kong dignitaries, spent four years and eight months to complete the draft Basic Law after two rounds of public consultation over every detail. It took ten years for forging and sharpening an indefensible sword, likewise, it took a decade to hammered out the Basic Law for Hong Kong since late paramount leader initiated the "one country, two systems" framework in the early years of 1980s. Deng Xiaoping described it as “a law of historic and international significance”, as well as “a creative masterpiece”. The Basic Law protects “one country, two systems”; it should therefore be cherished by all Hong Kong residents wholeheartedly.

　　原文刊登于4月24日《中国日报香港版》