特别行政区内的宪法适用问题研究

A Study on the Application of the Constitution in Special Administrative Regions

宪法作为根本法能否在特别行政区内直接适用是从香港基本法和澳门基本法制定以来就在法学界和法律实务界争论不休的问题,中国宪法学界至今仍然没有通过严密的法理论证有效地解决这个与特别行政区制度实践相关的重大理论和实践问题。事实上,基本法只是全国人大根据具体情况对特别行政区内实行的制度制定的“基本法律”,《宪法》第31条和第62条第14项规定的特别行政区制度是一套完整的宪法制度,基本法只是在确立特别行政区制度上发挥了重要作用,但并没有包揽或全部实现宪法确立的特别行政区制度的法律功能。宪法规定的特别行政区制度是一个完整地体现国家结构形式特征的地方治理制度,在法理上存在着全国人大制定一般意义上的特别行政区法的必要性和可行性。特别行政区、特别行政区机构、特别行政区全国人大代表以及作为中国公民的特别行政区居民,都具有宪法上的直接法律义务,必须要自觉遵守宪法,维护宪法权威。

Whether the Constitution, as the fundamental law, can be directly applied in special administrative regions is a question that has been debated in the legal theoretical circle and the legal practice circle since the formulation of the Basic Law of Hong Kong Special Administrative Region and the Basic Law of Macao Special Administrative Region. So far, the Chinese constitutional law circle has not provided rigorous legal proof to effectively solve this major theoretical and practical problem related to the special administrative region system. In fact, a basic law is only the “basic law” formulated by the National People’s Congress for the system implemented in a special administrative region according to specific circumstances. The special administrative region system stipulated in articles 31 and 62(13) of the Constitution is a complete set of institutions. The basic laws played an important role only in establishing the special administrative region system, but do not encompass or fully realize the legal functions of the special administrative region system established by the Constitution. From a legal point of view, the special administrative region system stipulated in the Constitution is a complete local governance system that embodies the structural and formal characteristics of the state and it is necessary and feasible for the National People’s Congress to formulate a law on special administrative regions in a general sense. Therefore, the two basic laws cannot go beyond the scope of authorization of the Constitution when setting up the special administrative region system. The common Article 5 of the two basic laws, which stipulates that “the previous capitalist system and way of life shall remain unchanged for 50 years”, needs to be interpreted in a limited way in terms of legal principles in order to comply with Article 31 of the Constitution, which stipulates that: “The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in light of the specific conditions”. In addition, the Interpretation of Article 13 Paragraph 1 and Article 19 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, issued by the Standing Committee of the National People’s Congress, explicitly takes Article 89(9) of the Constitution as a basis of interpretation of relevant articles in the basic law. Therefore, the Constitution has in fact already had a direct legal effect on the legislative and judicial activities of special administrative regions. In addition, the national laws listed in Annex III of the two basic laws that can be applied in special administrative regions also have the problem of “constitutionality”. Once the unconstitutionality issue arises, it will inevitably have a substantial impact on governance activities of special administrative regions. In short, as the fundamental law, the Constitution, by establishing the special administrative region system, has the legal effect of direct application to special administrative regions. Special administrative regions, their institutions, deputies to the National People’s Congress from special administrative regions, and residents of special administrative regions as Chinese citizens all have direct legal obligations under the Constitution.