Study On The Application Problems Of The Constitution In The Hong Kong Special Administrative Region

Since the return of Hong Kong,due to the differences between the relevant provisions of the Constitution and the Basic Law of Hong Kong,the central government has not responded positively to which specific clauses of the Constitution are apply to the relevant constitutional practices,nor has it clearly declared its constitutional basis.Whether the Constitution can be applied in the HKSAR and how it could be applied have been controversial in the theoretical circles.in the theoretical circle.This paper studies this problem from the following five aspects.The first part gives an overview on the application of the Constitution in Hong.Firstly,this paper starts with the basic concepts,it defines the concept of the"application of constitution" and compares it with related concepts from the perspective of Jurisprudence.Then it reviews the origin and development of the issue,through the analysis of the relevant clauses of the Constitution and the Basic Law,it holds that the application problems of the Constitution in Hong Kong Special is directly due to the contradiction and ambiguity in their textual representation.What’s more,according to examining the historical background of the formulation of the Basic Law,it traces the legislative purposes of the relevant clauses of the Constitution and the Basic Law of Hong Kong.The second part analyses and demonstrates the validity of the Constitution in the HKSAR,which is the foundation of constitutional application in Jurisprudence.Firstly,the relationship between the application of the Constitution and the effectiveness of the Constitution is discussed.It is considered that the effectiveness of the Constitution must be determined as the premise of the application of the Constitution.Then,it analyses the constitutional basis of the HK,and the relationship between the Constitution and the Basic Law.According to the analyses,it deems that the Basic law is a special subordinate law of the Constitution.The third part studies the specific application methods of the Constitution in Hong Kong.Firstly,it analyzed the application mode of national laws in HK,which could not be used to the Constitution.Then,it investigated the constitutional application practice of the NPC and its Standing Committee,combs the indirect identification of constitutional application in judicial practice(through precedents)in Hong Kong.Based on the analysis,it is pointed out that the dilemma stems from the disconnection between theory and practice.The fourth part studies the relevant theories of the specific application of the Constitution in Hong Kong,which could be divided into three approaches,"overall application","indirect application" and "dual application".After concretely analyzing the advantages and disadvantages of them,this paper considered that the "dual application" theory is more applicable,though it still has some defects and needs to keep improving.The fifth part puts forward some suggestions on the improvement of the application of the Constitution in the HKSAR in theory and practice.Firstly,according to the practical needs,this paper thinks that the dual application theory is more suitable for the application of the Constitution in Hong Kong,which could be improved by typing the constitution clauses.Besides,it gives some principles that need to be adhered to in the light of the constitutional practices,which believes that the application of the specific provisions of the Constitution in Hong Kong should be mainly in the form of principled application and indirect application,which means that the stability and implementation of basic law need to be guaranteed,while NPC needs to keep restraint when it makes the relevant constitutional decisions,and we should pay more attention to strengthening the role of the interpretation law bye of the standing committee of NPC in the application of the Constitution.