(this is only a draft)

Introduction

When the sovereignty of Hong Kong was transferred from Britain to the People’s Republic of China (PRC), the former Crown colony was turned into a Special Administrative Region (SAR). Under the new constitutional order, the SAR is allowed a “high degree of of autonomy and enjoy executive, legislative, and independent judicial power”.[1. The Basic Law of Hong Kong (“BL”), Article 2.] The “socialist system” and policies in the rest of PRC are not practiced in the SAR.[2. Ibid., Article 5.] Despite the “high degree” of autonomy, there are areas over which the SAR does not have control. Defence is one of them.[3. Ibid., Article 14.] The Beijing authority will station its troops in Hong Kong. Expenditure for the garrison is also borne by the Beijing authority.[4. Ibid., Article 14(5).] The SAR does not have its own army.

As the title has already indicated, this article investigates whether or not Hong Kong citizens can and should be allowed to join the People’s Liberation Army. Relevant laws will be examined in answering the former issue, and the situation in the United Kingdom and the United States in relation to their respective dependent territories will be investigated in answering the latter issue.

Hong Kong after the transfer of sovereignty

Previous English-influenced laws remain in force in Hong Kong, except for those which contravene the city’s mini-constitution.[5. Ibid., Articles 8 and 160.] Generally, PRC laws are not applied to the SAR, except for a selected few.[6. Ibid., Article 18.] Those are mainly related to the national identity, territorial sovereignty, and the act of state.[7. Ibid., Annex III.] However, the Military Service Law of PRC, which stipulates, inter alia, the enlistment method of the People’s Liberation Army (PLA), is not on the list. It can be inferred, literally, that the Military Service Law does not apply to the SAR. Considering that there are not statutes in the Hong Kong law that stipulates how Hong Kong permanent residents can be recruited into the PLA (there cannot be such legislation anyway – defence is not within the purview of the SAR), the author argues that, prima facie, Hong Kong citizens are denied the right to serve their sovereign in a military manner.

The above, the author admits, is only an inference from the literal reading of the laws. How they should be correctly interpreted in law is of course another matter. The power to interpret the city’s mini-constitution, along with the power to amend it, is vested in Beijing.[8. Ibid., Articles 158 and 159.] Interpretations released by the Beijing authority are automatically binding to Hong Kong courts.[9. Ibid., Article 158(3).] The Court of Final Appeal has previously succumbed to the position.[10. Lau Kong Yung v Director of Immigration FACV 10/1999.] There has been no interpretation released regarding the People’s Liberation Army yet. A literal reading of the mini-constitution suggests that such interpretation can only be sought by the Court of Final Appeal in Hong Kong, in adjudicating an arguable case.[11. BL, Article 158(3).] Although the first-ever interpretation of the mini-constitution was sought by the executive branch of the SAR,[12. The Interpretation by the Standing Committee of the National People’s Congress of Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Tenth Session of the Standing Committee of the Ninth National People’s Congress on 26 June 1999).] it was after the government was not satisfied with a Court of Final Appeal decision.[13. Ng Ka Ling v Director of Immigration FACV 14/1998.] Arguably, if there is no court case, there is no interpretation. Since there is no constitutional review about Hong Kong permanent residents’ right to join the PLA so far, there is no interpretation to rebut the presumption that Hong Kong permanent residents are denied from so doing yet.

Surrounding evidence also supports the proposition. A member of the Central Military Commission purportedly had said that although he would welcome Hong Kong residents to join the PLA, the government had to “sort out the legalities” first.[14. Unspecified reporter, ‘Deprived no longer: Hong Kong people get to go to war’ CNN International (8 June 2011) <http://travel.cnn.com/hong-kong/life/chinese-army-may-recruit-hong-kong-311670>] A member of a major pro-Beijing political party in Hong Kong had also submitted a proposal to allow to Hong Kong residents join the PLA voluntarily to the The Chinese People’s Political Consultative Conference.[15. Joyce Ng, ‘Joining the PLA will help young Hongkongers ‘understand the country better’ South China Morning Post (Hong Kong 24 Feb 2015) <http://www.scmp.com/news/hong-kong/article/1721946/joining-pla-will-help-young-hongkongers-understand-country-better>] These support the proposition that the Military Service Law of PRC does not apply to the HKSAR.

The conclusion is baffling. As the Nationality Law of PRC applies to the SAR,[16. (n8)] Hong Kong permanent residents of Chinese descent, even born during the colonial era, are regarded by the Chinese authority as Chinese nationals.[17. See, for example, Explanations of Some Questions by the Standing Committee of the National People’s Congress Concerning the Implementation of the Nationality Law of the People’s Republic of China in the Hong Kong Special Administrative Region (Adopted at the Nineteenth Session of the Standing Committee of the Eighth National People’s Congress on 15 May 1996).] Hong Kong permanent residents of non-Chinese descent, but who have been naturalised in accordance with the Nationality Law are equally Chinese nationals as their counterparts in mainland China. There is no provision in the Military Service Law that restricts a soldier’s place of birth. A prima facie inconsistency exists here. Technically, all Chinese nationals have a duty to perform military service when called upon. The Military Service Law is enacted “pursuant to Article 55 of the Constitution”,[18. The Military Service Law of the People’s Republic of China, Article 1.] which stipulates, “it is the sacred duty of every citizen of the People’s Republic of China to defend the motherland and resist aggression”. If many, if not most, of the permanent residents in Hong Kong are Chinese nationals, why are they denied from joining the PLA? Does Article 55 of the PRC Constitution not apply to the SAR either?

We will now turn to the situation in other sovereign states, in order to examine whether Hong Kong permanent residents are justified to join the PLA.

United Kingdom and the Commonwealth

Most former colonies of the United Kingdom have joined the Commonwealth of Nations[19. Formerly the “British Commonwealth”.] and many of them still have the British monarch as their head of state. The British monarch, therefore, is still the nominal sovereign of many of these former colonies. She, or He, as the case may be, has the duty to appoint Governors to these states.

Unlike the situation between Hong Kong and the People’s Republic of China, soldiers from across the Commonwealth have a long tradition of service in the British Army. According to the British Army,[20. The British Army, ‘A Regular Army Interim Guide for Commonwealth Citizens and their Families’ (army.mod.uk 2008) <http://www.army.mod.uk/documents/general/20080208-CommonwealthFamsGuideRegArmy-DPS%28A%29-U.pdf>, Section 3.] upon request, Commonwealth citizens living outside the UK will be invited to submit an application. The Home Office may require that the applicant have his support and accommodation during the selection process, which takes place within the UK for 6 to 12 weeks, sponsored.[21. Ibid.] A Commonwealth citizen also needs to have lived in the UK for at least 5 years before he can become a regular soldier.[22. The British Army, ‘Can I join? Eligibility for Officers and Soldiers’ (army.mod.uk 2015) <http://www.army.mod.uk/join/How-to-join.aspx>] The applicant must not have been out of the UK for a continuous period of more than 180 days during this 5 year period. This requirement does not apply to the Army Reserve.[23. Ibid.] Besides these two requirements, a Commonwealth applicant is assessed in the same way as a British applicant.[24. (n20)]

A Commonwealth citizen is defined in the British law[25. British Nationality Act 1981.] as either a full British citizen, a British Overseas Territories citizen, a British Overseas citizen, a British subject, a British National (Overseas), or a national of any of the specified countries. Before the transfer of sovereignty, Hong Kong citizens were British Overseas Territories citizens. They only lost such status upon the transfer of sovereignty.[26. The Hong Kong (British Nationality) Order 1986 stipulates that “on and after 1st July 1997 the British Nationality Act 1981 shall have effect as if in Sch. 6 to that Act (British Dependent Territories) the words ‘Hong Kong’ were omitted”.] What follows from the laws is that Hong Kong citizens were entitled to join the British Army before the transfer of sovereignty but not to join the People’s Liberation Army after. This only strikes the author as ironic. Moreover, between 1985 and 30th June 1997, the nationality British National (Overseas) (BN(O)), which arguably was tailor-made for the transfer of sovereignty, was open to Hong Kong citizens to apply. BN(O) would be granted for life upon successful registration but non-hereditary.[27. Hong Kong Act 1985.] As of today, the Commonwealth citizenship still includes BN(O).[28. (n25)] What is even more ironic is that some Hong Kong permanent citizens, even after the “transfer of sovereignty”, may be entitled to serve in their former sovereign’s armed forces but not the current’s.

United States and Puerto Rico

Puerto Rico is a territory of the United States of America. Its defence was overtaken by the United States following the Treaty of Paris of 1898 as a result of the Spanish-American War. More than 2 hundred thousand US citizens from Puerto Rico have served in the U.S. Armed Forces since 1917.[29. Puerto Rico Federal Affairs Administration, ‘Puerto Rico at a Glance’ (praff.pr.gov 2015) <http://webcache.googleusercontent.com/search?q=cache:BQ63zcavTt0J:prfaa.pr.gov/pr_factsnd2.asp+&cd=2&hl=en&ct=clnk&gl=hk>] As of 2015, there are more than ten thousand Puerto Rican active duty military personnel serving across different branches of the US Armed Forces.[30. Ibid.]

Puerto Ricans are natural-born US citizens by birth.[31. 8 U.S. Code § 1402 – Persons born in Puerto Rico on or after April 11, 1899 (1941).] Puerto Ricans enjoy most of the rights and privileges of any other US citizen born in the 50 federal states. However, Puerto Ricans have no right to determine who can become their head of state. According to Article II of the US Constitution, the President is voted by the Electors of each State. Since Puerto Rico is not an incorporated state of the federation, Puerto Ricans cannot vote in the general presidential elections. It may be argued that this is similar to the HKSAR, but the HKSAR does have its own delegation to the National People’s Congress of the PRC (NPC). The NPC will vote to decide who get the jobs high at the hierarchy, such as the Standing Committee thereof[32. Constitution of the People’s Republic of China, Article 65.] and the President of the PRC.[33. Ibid., Article 62.] The HKSAR delegation must be distinguished from the local Legislative Council (LegCo), which arguably receives more attention from the general public in Hong Kong.

However, because of their US citizenship, Puerto Ricans are eligible for the US draft. In fact, most male US citizens between the ages of 18 and 25 are statutorily required to register within 30 days of their 18th birthdays to the Selective Service System.[34. 50 U.S. Code § 453.] Citizens registered to the System are potentially subject to military conscription. As long as the person is a US citizen, there is no restriction to his place of birth in the Military Selective Service Act. The law is similar to the Military Service Law of PRC, which requires “male citizens who will be 18 years old by December 31” to register for military service by September 30 that year according to local arrangements.[35. Military Service Law of the People’s Republic of China, Article 13.]

Conclusion

If even Puerto Ricans, who are not entitled to choose their own head of state, are allowed to serve their sovereign’s armed forces, there is no reason in law that Hong Kong permanent residents who are Chinese nationals should be banned from joining the People’s Liberation Army. Neither does it make sense that Hong Kong citizens could serve in the former sovereign’s armed forces but not the current’s. If it is the case, as the mini-constitution of the HKSAR says, that the HKSAR is an inalienable part of the PRC,[36. BL., Article 1.] then excluding Hong Kong citizens from the PLA does not only deprive them of the right to pursue a career in their “motherland’s” armed forces, but also the right to defend their own home.

The author believes that the confusion stems from ambiguity of the Basic Law, that of the PRC Constitution, and that in the interrelationship between the two. In the recently held Seminar for the 25th Anniversary of the Promulgation of the Basic Law, the Chinese authority has once again declared its rights over the SAR.[37. Unspecified reporter, ‘Wang: Six rights of the Central Government over Hong Kong’ (translated) Ming Pao Canada (3 April 2015) <http://www.mingpaocanada.com/realtimenews/VAN/content_hk_NEW.cfm?aid=164431&m=0>] All comments aside, there is one statement that the author believes is worth discussion. It was said that “there are things not stipulated in the Basic Law but should be taken for granted [because they are stipulated in the Constitution]”.[38. Ibid.] “These things” are suggested to include that the head of state is the President of the PRC.[39. Ibid.] The only reference, so far, in the Basic Law, to the PRC Constitution is in the preamble, saying that “[the SAR is] established in accordance with … Article 31 of the Constitution of the People’s Republic of China”.[40. Mirroring this, Article 31 of the PRC Constitution stipulates that “the State may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in the light of specific conditions”.] On the other hand, it seems true that if the Basic Law stipulates that act of state is the responsibility of the Beijing authority, then the head of state of the HKSAR must be that of the PRC, who, according to the PRC Constitution, is the President.[41. Constitution of the People’s Republic of China, Articles 80 and 81.] That is, the statement is arguably true. But this only begs the question: To what extent? How is the PRC Constitution applied to the HKSAR, and how much thereof? There are provisions in the PRC Constitution that obviously are inconsistent with the Basic Law.[42. One obvious example is that while the very first Article of the PRC Constitution stipulates that “the People’s Republic of China is a socialist state under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants”, Article 5 of the Basic Law expressly says that the “socialist system” will not be practiced in Hong Kong. It is also emphasised in the preamble.] The author suggests further investigation regarding this issue. Lastly, there is also the ambiguity as to which of the State or the Chinese Communist Party does the People’s Liberation Army belong.