TU Kai*

 

 

Keywords: basic rights · family life · constitutional review · basic law · Guangdong-Hong Kong-Macao Greater Bay Area

 

 

During the implementation of “one country, two systems,” a question that has consistently raised concerns is whether there are differences in the basic rights enjoyed by Chinese citizens living in the Chinese mainland compared to those in Hong Kong and Macao, the two special administrative regions (SARs). If there are differences, how should we approach the theoretical understanding and practical implications of these disparities?

 

The Constitution and the Basic Law jointly constitute the constitutional basis of the Special Administrative Regions.¹ The Constitution holds the highest and most universal authority within the entire territory of the country, including the special administrative regions. This viewpoint has become a consensus within the field of constitutional law and is recognized in China’s political discourse.² Meanwhile, several generations of scholars engaged in Basic Law research widely acknowledge that the fundamental rights of residents in Hong Kong and Macao are primarily guaranteed directly by the two Basic Laws.³ The Article 11(1) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (hereinafter referred to as the Hong Kong Basic Law) clearly states: “In accordance with Article 31 of the Constitution of the People’s Republic of China, the systems and policies practiced in the Hong Kong Special Administrative Region, including the social and economic systems, the system for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and judicial systems, and the relevant policies, shall be based on the provisions of this Law.” The Basic Law of the Macao Special Administrative Region of the People’s Republic of China (hereinafter referred to as the Macao Basic Law) also has similar wording in Article 11.⁴

 

The basic rights of residents in Hong Kong and Macao are directly protected by the Hong Kong Basic Law and the Macao Basic Law, respectively. Over the past two decades, these legal frameworks have played a significant and positive role.⁵ During the initial formulation of the Basic Laws, one of the most significant concerns for the drafters was the protection of residents’ rights, and they reached a high degree of consensus on this issue. However, this arrangement has also given rise to noteworthy issues. In essence, the effective protection of basic rights by national authorities is essential for fostering citizens’ constitutional awareness and national identity. Both Basic Laws specify “residents” rather than “citizens” as the main subjects enjoying basic rights in Hong Kong and Macao. The institutions primarily responsible for directly protecting their rights are the regional authorities rather than national constitutional bodies. This objectively affects how Chinese citizens living in Hong Kong and Macao perceive the direct application of the national constitution in their daily lives. It may not facilitate their conscious and in-depth understanding of the content, values, and functions of the national constitution. Han Dayuan had long foreseen that this perceived gap in necessary attention could introduce a certain degree of uncertainty in the process of “bringing hearts back” to the nation.⁶ Chen Duanhong also raised crucial questions: “What should be the content of Chinese citizenship granted to permanent residents in Hong Kong who are Chinese citizens? How should their basic rights correspond to the Hong Kong Special Administrative Region authorities and the national government? How can their sense of citizenship be nurtured?”⁷

 

During the formulation of the two Basic Laws, earlier scholars envisioned that comparative research between the Chinese mainland and Hong Kong and Macao SARs’ legal systems would make a unique contribution to knowledge accumulation and social progress. Mr. Pan Handian once said, “Under the concept of ‘one country, two systems,’ China is facing a situation where various legal and political systems with different legal backgrounds coexist. This raises questions about how to adjust and coordinate the legal relationships between these different legal systems and how to resolve inevitable legal conflicts.” He pointed out that for Chinese legal scholars, “conducting comparative research in this field is an urgent historical task.”⁸ However, the discipline of comparative law was initially imbued with the vision of “uniform private law” from its inception.⁹ For a long time, comparative research between the Chinese mainland and Hong Kong and Macao SARs has focused mainly on resolving private law conflicts.¹⁰ For a period of time, the academic consensus was that the resolution of legal conflicts arising from civil interactions between regions could be achieved through interregional conflict laws.¹¹ In recent years, with the development of practice, topics such as civil judicial assistance, cross-border cooperation agreements, and

local collaborative legislation have also become areas of interest.¹² Professor Zheng Yongliu’s concept of the future “Chinese legal circle” in 2012 proposed the idea of “policy interpretation through consensus,” meaning that a standard based on generally consistent legislative policies can be used to interpret the different laws and concepts between the Chinese mainland and Hong Kong and Macao SARs.¹³ He believed such an approach would be “more fundamental and effective” for integrating various legal domains in China.¹⁴

 

Comparative research on legal interpretations related to fundamental rights in the Chinese mainland and Hong Kong and Macao SARs has only begun to have the necessary conditions in recent years. Over the past decade, the comprehensive online publication of judicial judgments in the Chinese mainland has allowed scholars to examine the reasoning of judicial authorities closely.¹⁵ An even more significant opportunity arose when the Legislative Affairs Commission of the Standing Committee of the National People’s Congress (NPC) (hereinafter referred to as the NPC Legislative Affairs Commission) began to publish reports on its work of reviewing records since 2017.¹⁶ Starting from 2018, “constitutional review” was listed as one of the “main tasks for the next year.”¹⁷ The annual reports on the review of local regulations and other issues related to constitutionality and legality have provided more specific opinions. This has offered better materials for analyzing the understanding of constitutional provisions and concepts by authoritative agencies. This article intends to use the release of the 2021 Report on the review of local regulations by the NPC Legislative Affairs Commission as an opportunity to compare the interpretations of core aspects of the right to family life at the constitutional level between the Chinese mainland and

Hong Kong and Macao SARs. This analysis seeks to provide a preliminary answer to the initial question raised in this article. Surprisingly but perhaps unsurprisingly, it may be discovered that, at least with regard to the constitutional aspects of the right to family life, there is a clear trend of convergence in the interpretations between the Chinese mainland and Hong Kong and Macao.

 

 

In the report titled Report on the Review of the Work of Filing and Review of the National People’s Congress Standing Committee’s Legislative Affairs Commission in 2021 delivered by Director Shen Chunyao on December 21, 2021, it was mentioned: “In some local regulations, it is stipulated that the relevant administrative department may request the parties to undergo parentage testing in order to investigate illegal family planning facts; those who refuse to cooperate shall be fined from RMB 10,000 to RMB 50,000.”¹⁸ The NPC Legislative Affairs Commission, after review, concluded that “parental relationships involve the dignity, identity, privacy, and harmony and stability of family relationships of citizens, which are fundamental rights of citizens protected by the Constitution and laws. Local regulations should not specify mandatory paternity testing, nor should they set corresponding administrative penalties, disciplinary measures, or handling measures for this matter.”¹⁹ The report mentions constitutionally protected “fundamental rights” including “the dignity, identity, privacy, and harmony and stability of family relationships” among others. The core content of concepts such as “human dignity” and “privacy” has been extensively studied in China’s legal academia, and their implications are relatively clear.²⁰ While Articles 48 and 49 in China’s Constitution mention rights related to the “family”, particularly in terms of “parent-child relationships” (in contrast to “marital relationships”), the exact implications of these rights may still require further clarification.

 

China’s Constitution addresses individual rights related to the “family” in Article 48 and Article 49(1). Article 48 stipulates that women have the same rights as men in family life. Article 49 states that the state protects marriage, family, motherhood, and childhood. In the Macao Basic Law, Article 30(2) states that Macao residents enjoy the right to personal honor and privacy of private and family life. Article 38 mentions the term “family” and states that the right of Macao residents to establish a family is protected by law. Interestingly, the term “family” does not appear in the Chinese text of the Hong Kong Basic Law when it discusses the basic rights of residents. In the Hong Kong Basic Law, Article 37 merely mentions that the freedom of marriage of Hong Kong residents shall be protected by law. However, in the English version of the Hong Kong Basic Law, the term “family” is mentioned abruptly. In a direct translation, its wording is quite similar to Article 38 of the Macao Basic Law, stating that Hong Kong residents have the freedom to establish a family.

 

From a literal interpretation of the text, it may seem that there are significant differences in how the Chinese mainland and Hong Kong interpret the constitutional implications of family rights. However, researchers should not hastily conclude that “family life” as a basic constitutional right means equality among family members in the Chinese mainland, personal privacy regarding family matters in Macao, and has no explicit mention in the Hong Kong Basic Law. ²¹ This article will explain that this does not align with reality.

 

 

Of course, legal rights related to “family life” have not only been stipulated in China’s Constitution but have traditionally been addressed in civil law. Article 112 of China’s Civil Code states that the personal rights of natural persons arising from marriage and family relations shall be protected by law, and the fifth section, “Marriage and Family” provides detailed regulations on “family relations” and others things. Therefore, do the “family life” related rights specified in civil law and the Constitution have a consistent interpretation? If the answer is affirmative, constitutional scholars and practitioners can fully rely on the existing scholarly achievements in civil law to advance their research and work without the need for separate efforts and unnecessary duplication of resources.

 

In the 21^st century, there have been several concentrated discussions within the legal community regarding the relationship between the Constitution and civil law in China. Professor Han Dayuan summarized this in his article published in Tsinghua University Law Journal in 2016. In essence, there is no doubt that civil law in China plays and will continue to play an important role in protecting the extensive rights of the people and shaping modern social life. This is why some civil law scholars argue that civil law serves a “constitutional function.” The term “constitutional” originally implies “fundamental” and “critical.” Using “constitutional” as an adjective in this context vividly illustrates the significant role of civil law in protecting human rights, which is quite reasonable.²² However, if we rigorously analyze the question from a constitutional law perspective, does the idea that “civil law plays a ‘constitutional function’” imply that the Constitution serves as the “normative content basis for the Civil Code”? Using Professor Lin Laifan’s phrasing, can we say that the “Civil Code has a specific normative shaping function for the content of the Constitution”?²³ Or, in other words, do the Constitution’s provisions find more specific expression in the civil law (or the Civil Code) and become shaped by it?

 

Only by specifically comparing the interpretations of relevant provisions and concepts of the Constitution and Civil Code by the academic and practical communities can we convincingly answer whether the content regulated by the Constitution has been and can only be concretely formed by the civil law (or the Civil Code). Otherwise, if an affirmative answer is preconceived as a premise, it is only necessary to explain the provisions of the civil law, and the Constitution can be automatically used as the basis for interpreting these provisions. On the other hand, if a negative answer is assumed as a premise, it is difficult to explain the superficial similarity between the provisions of the two laws and challenging to determine whether this “deviation” of the civil law from the Constitution is politically correct, feasible institutionally, and practically possible. In this context, the new argument in China’s constitutional law community is that the Constitution exists as the normative basis for the Civil Code. In other words, the provisions of the Constitution only need to bind the behavior of the agencies responsible for formulating and implementing the Civil Code and do not need to and cannot be used as a basis for reviewing the specific provisions of the Civil Code. ²⁴

 

When the work of constitutional compliance review was not as vigorous as it is now, the notion that “the Constitution serves as the normative basis for the Civil Code” indeed had explanatory power sufficient to accommodate the prevailing institutional reality at that time. However, when constitutional provisions regarding citizens’ fundamental rights are directly involved in constitutional compliance review through reports from the NPC Legislative Affairs Commission, interpreting them as merely prohibitive provisions against legislative actions is no longer sufficient. Today, constitutional compliance review institutions often need to assess whether the enacted law infringes upon the fundamental rights protected by the Constitution. Only by first clarifying the core content of these fundamental rights can a true comparison and evaluation be conducted.

 

 

Before constitutional provisions have formally entered into constitutional compliance review, the Chinese mainland practical field, under the influence of departmental legal studies (mainly the civil law), has long had four main interpretations of the content of “family life” related rights: identity relations, private spheres, emotional bonds, and ethical order.

 

1. Legal identity rights. Article 112 of the Civil Code is derived from Articles 103 and 104 of the General Principles of the Civil Law and Article 112 of the General Rules of the Civil Law. Article 104 of the General Principles of the Civil Law closely follows Article 49(1) of the Constitution, stating that marriage, family, the elderly, mothers, and children are protected by law. Regarding the content specified in Article

112 of the Civil Code, the field of civil law generally regards it as “identity rights.”²⁵ Looking at the provisions in Chapter Five of the Civil Code, which deals with “Marriage and Family,” the concept most relevant to the discussion in this article is the right and obligation of parents to educate and protect their minor children, as stipulated in Article 1068. Liu Yanhong suggests, “While our legislation does not directly use the term ‘parental rights,’ the parental rights arising from blood ties and identity between parents and children are undeniable in practice.” Article 1068 of the Civil Code indeed pertains to these “parental rights.”²⁶

 

This assessment surely makes sense. In the past, scholars believed that Chinese civil law did not have provisions for parental rights because there was no distinction between parents as guardians and other types of guardians in terms of rights and obligations. However, Article 34 of the Civil Code stipulates that the duty of guardians is to protect the personal rights, property rights, and other lawful rights and interests of the ward, without explicitly stating that guardians have the general right to “educate minors.” This difference is not insignificant. Article 1068 of the Civil Code specifically amends the wording of Article 23 of the Marriage Law, emphasizing “education” before “protecting the rights of minor children.” In real-life situations, wards protected by civil affairs departments as guardians also have difficulty receiving adult education from these government entities, and their character formation can only be achieved through the education department and schools. Therefore, it can be said that if the primary content of civil rights related to “family life” is “identity,” then one of the most crucial aspects is “parental rights.”

 

2. Privacy rights. Chinese judicial authorities sometimes consider “family life” as a private domain distinct from public spaces. For example, in the case of “Ding Wei v. Beijing Ancient Castle Books Co., Ltd.,” the Beijing Internet Court (BIC) considered that some of the parties’ correspondence “mainly contained family arrangements, ideological exchange, emotional expression, etc., all of which were purely intimate exchanges between family members”, and these “contents fall within the scope of privacy.”²⁷ This case was subsequently selected as one of the “Top Ten Hot Cases of the First Anniversary of the Establishment of the Beijing Internet Court.”

 

3. Emotional bonds. In the “Wang 1 et al. v. Lutian Township Hospital, Anxi County — Medical Malpractice Compensation Dispute Appeals Case,” the disputed issue was whether parents should bear civil liability for their negligent actions that harmed the interests of the fetus. The presiding judge’s analysis stated: “The family is an indispensable unit in society, and the law should fully respect and protect family life and its related rights. Therefore, the law should control any behavior that harms family harmony and disrupts the affection among family members. Moreover, parents all hope for their children’s healthy growth. If a child is born with defects, parents often give more love and care. If the law grants children the right to claim ompensation for their parents’ negligence before birth, it will inevitably lead to mutual opposition among family members. Even if the children eventually receive compensation as they wished, they may lose their parents’ selfless love forever.” ²⁸

 

4. Ethical order. It actually refers to parents advocating that they should be treated with “filial piety” by their children. In the case of “Wang v. Huang — Dispute over Confirming Adoption Relationship,” the Handan Intermediate People’s Court stated: “Filial piety to parents is an obligation that every child should fulfill, and a traditional virtue passed down by the Chinese nation for five thousand years. Moreover, being filial is the basic criterion for being a good person and an inherent requirement of the core socialist values. In this case, Mr. Wang and his wife have raised and nurtured Mr. Huang since childhood, supporting him to start a family and a career to the best of their abilities. Although they have no blood relationship, their long-term family life has bonded them as a family.”²⁹ In the “Zhang Yi v. Liu Chun — Divorce Dispute Case”, the Nanyang court also suggested: “Wives should learn to play multiple roles well, including being a daughter-in-law, wife, and mother. Particularly, they should start from the perspective of ‘filial piety’ to manage their relationship with their mothers-in-law.”³⁰

 

The above are interpretations of “family life” related rights by the Chinese mainland civil judicial authorities.

 

 

Regarding the core content of the “family” related rights specified in Articles 48 and 49 of China’s Constitution, the Chinese mainland academic community has also accumulated valuable research results in the field of constitutional doctrine. These can be summarized into several theories:

 

1. Institutional protection: Wang Kai, in an article published in 2013 in the journal Law Review, provided a systematic understanding of the provisions related to “family” in China’s Constitution. He argued that the protection of the “family” in China’s Constitution primarily serves as “institutional protection” aimed at safeguarding traditional and existing public and private legal systems. The protective effect is that the legislator cannot repeal the core of this system, but they can regulate non-core aspects of the system.³¹ In summary, this view suggests that the function of provisions related to “family” in the Constitution is the core element to ensure that the National People’s Congress cannot repeal the family system. However, it does not completely explain what constitutes the “core element.” According to this perspective, only the legislative body can make determinations regarding the core element of the family system.

 

2. A stable common life. Because the institutional protection theory does not aim to clarify the specific content of the family system’s core, Du Qiangqiang criticized Wang Kaiwen’s argument, stating that the “institutional protection” theory popular in the German constitutional law field does not help interpret the relevant provisions of China’s Constitution. This is because, in the real world, very few really want to abolish the institution of marriage and family! While Du Qiangqiang’s discussion is focused on the protection of “marriage” by the Constitution, his analysis can also be applied to the Constitution’s provision concerning “family” (Article 49(1)). According to Du’s opinion, this provision of the Constitution actually protects the long-term stable “common life” of family members, rather than just the family system itself.³²

 

3. The right to decide on having children. While not entirely in line with Du Qiangqiang’s understanding, Qin Aolei’s interpretation of the specific meaning of the “right to family” as a constitutional right in the context of top China is: “The essential element in determining the right to family or the right to establish a family is the individual’s or couple’s right to decide whether or not they have their children.”³³ She points out that if we consider that the core of narrow marriage rights (pertaining to “spousal relationships”) is the shared life between partners, then the focus of narrow “family” rights (pertaining to “parent-child relationships”) lies in the right of parents to have children. Considering that China’s Constitution distinguishes between “marriage” and “family”, Qin Aolei’s interpretation appears to be more precise.

 

4. State positive obligations. Besides, Professor Zhang Xiang introduced the concept of “objective order of values” from German constitutional law to position Article 49 of China’s Constitution. Zhang Xiang explains, “Basic rights as principles of the objective order of values constitute the basis for legislative bodies to establish various systems... forming the foundation of the entire social community’s values. The state should provide substantial prerequisites for the realization of basic rights.” He further elaborates that according to the German doctrine, “On one hand, the state is prohibited from infringing upon marriage and family rights; on the other hand, the state also has a positive obligation to support and assist families through appropriate measures.”³⁴ Clearly acknowledging the positive obligation of the state to protect rights is an important contribution of the dual obligation theory.

 

In Europe, the positive obligations related to family rights primarily derive from Article 8 of the European Convention on Human Rights. Member states of the European Commission have an obligation to prevent severe acts of violence between individuals through criminal mechanisms, including investigations and prosecutions.

 

When the European Court of Human Rights determines whether a state has a positive obligation in family-related matters, it generally considers whether the core content of the right is affected, whether the state’s practices are consistent, and whether the definition of “positive obligations” is clear or vague. When balancing various public and private interests or different convention rights, member states typically have significant discretion in deciding how to proceed. It’s evident that determining the existence and violation of state positive obligations can be challenging. Moreover, it requires clarity on the core content of family rights first.

 

 

By interpreting the Basic Law, the Macao judicial authorities do not need to refer to civil law and can directly explain their understanding of the constitutional implications of “family life.” In contrast to the interpretations of the Chinese mainland civil judicial authorities and several constitutional scholars mentioned earlier, since its return, the Macao judicial authorities have explicitly defined the core content of the fundamental right to “family life” as the “close ties” among family members.

 

In case No.87/2015, the applicant sought recognition of what he envisioned as the protected rights of “family reunification” and “family life” under the Macao Basic Law. This request stemmed from the fact that due to the appellant’s failure to obtain a residence permit, his children and wife were unable to live with him in Macao, and he was potentially forced to move outside of Macao. However, Judge Lima of the final appellate court did not accept the applicant’s viewpoint. Instead, he argued that the appellant’s children, who were still very young (one year old and five years old, respectively), were highly adaptable at their age and could live elsewhere without difficulty. Additionally, the judge noted that as a permanent resident of Hong Kong, the appellant could maintain the “close ties” with his family, given the convenient transportation between Hong Kong and Macao.³⁵ In another case involving residency permits (Case No.108/2014), the appellants argued that not obtaining residency permits would separate them from their grandson born in Macao and prevent them from “enjoying family life.” Judge Lima, however, stated that he did not know if the two appellants had an intimate relationship with their grandson, and even if they did, this connection might not be immediately and abruptly severed. Given that the appellants had lived in the Chinese mainland for nearly half a century, where they definitely had more family members and friends than in Macao, not obtaining residency permits would not affect their ability to enjoy family life.³⁶ These two cases clearly illustrate that the Court of Final Appeal of Macao primarily understands “family life” in the Basic Law as “close” or “intimate” connections.

 

According to the Macao judicial authorities, as long as these close ties can be maintained, the right to “family life” is not seriously affected. In other words, at least in Macao, the constitutional right to “family life” does not necessarily mean that family members must physically live under the same roof, i.e., have a “stable cohabitation.”

 

 

Now let’s look at the situation in Hong Kong. The fundamental right to “family life” in the Hong Kong Basic Law may involve two provisions. One is Article 37 of the Hong Kong Basic Law. It will be explained later that this article only concerns the “right to decide on childbirth.” The truly important article is Article 39. However, the “right to family life” that can be derived from this article is ultimately implemented in Hong Kong legal practice as “close ties” among family members.

 

 

Article 37 of the Hong Kong Basic Law states: “The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.” It does not mention “family life” explicitly in its Chinese version. However, the English version of this article uses the term “family.” Regarding how to interpret this issue, in the case of Gurung Deu Kumari v. Director of Immigration, Justice Andrew Cheung (the current Chief Justice of the Court of Final Appeal) pointed out that the Chinese and English texts of the Basic Law should be interpreted consistently, and the English version should be understood according to its usual and natural meaning. If there is still a discrepancy with the Chinese version, the Chinese text should take precedence.³⁷

 

In the view of Justice Andrew Cheung, there is no ambiguity in the Chinese and English texts of Article 37 of the Hong Kong Basic Law. The term “right to raise a family freely” refers to the right to “have children voluntarily,” and it is not related to the obligation of adult children to support and assist their parents or the question of whether parents and adult children can jointly establish and maintain family relationships.³⁸ Indeed, Justice Andrew Cheung’s interpretation of Article 37 aligns with the viewpoint presented by Qin Aolei, where the implication is solely about the right to decide on having children.

 

Interestingly, in the judgment, Justice Andrew Cheung also specifically mentioned Article 38 of the Macao Basic Law. He believed that the Macao Basic Law clearly distinguishes between the rights to “form a family” and the right to “raise a family freely,” implying that the latter cannot encompass the former in a broad sense. However, he did not specify whether “to form a family” in Article 38 of the Macao Basic Law should include aspects such as children supporting their parents or the mutual establishment of a family by parents and children in his view. In the judgment of Case No.69/2016, Judge Song Man Lei of the Court of Final Appeal of Macao pointed out that Article 38 of the Macao Basic Law aims to protect the rights of Macao residents to marriage freedom, the establishment of a family, and voluntary reproduction. She stated, “It can be affirmed that the law does not guarantee family reunion for residents in Macao, let alone family stability, as it is well known that family stability is influenced by many factors.”³⁹ This suggests that the Macao judicial authorities believe that even the phrase “form a family” (rather than “raise a family freely”) does not imply that family members have the right to enjoy stable cohabitation.

 

It is worth mentioning that Article 37 of the Hong Kong Basic Law was drafted with the context of the Chinese mainland’s “family planning” policy in mind. Article 49(1) of the China’s Constitution stipulates that the “family” is protected by the state, and immediately following, Article 49(2) imposes an obligation on both spouses to practice family planning. During the drafting process of the Hong Kong Basic Law, there were discussions regarding whether Article 37 of the Draft Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China implied a clear restriction on the SAR government from implementing a one-child family planning policy. Justice Andrew Cheung discussed the context in which Article 37 of the Hong Kong Basic Law was created. He believed that the term “raise a family freely” in Article 37 was used in contrast to the concept of “family planning” in Article 49(2) of the China’s Constitution. He stated that the Basic Law specifically makes provision in Article 37 so that Hong Kong residents are not subject to the one-child policy enforced in the Chinese mainland.⁴⁰ The issue, however, lies in the fact that the term “family planning” as mentioned in the Constitution does not necessarily equate to the “one-child policy.” The report from the Constitutional and Legal Affairs Committee of the National People’s Congress on the deliberation of the draft amendment to the Population and Family Planning Law of the People’s Republic of China, dated August 19, 2021, clearly states: “The provisions in our country’s Constitution related to family planning, especially Article 25 which states that the state promotes family planning to ensure that population growth is in keeping with the economic and social development plans, embody a unity of addressing issues and pursuing goals, as well as a unity of direction and purpose. They are relatively inclusive and adaptable and can encompass fertility policies, related efforts, and supporting measures implemented in different periods.” In other words, even regarding Article 37 of the Hong Kong Basic Law, the practical effects of constitutional and legal provisions are nearly identical in the Chinese mainland and Hong Kong today.

 

 

Article 37 of the Hong Kong Basic Law indeed confirms the right of Hong Kong residents to decide on having children. However, it must be noted that it is not the primary provision in Hong Kong law regarding the basic right to “family life.”⁴¹ It is well known that Article 39 of the Hong Kong Basic Law incorporates the rights under the International Covenant on Civil and Political Rights (ICCPR, hereinafter referred to as the Covenant) into the laws of Hong Kong. Justice Andrew Cheung also mentioned in the Kumari case that Hong Kong still has constitutional protection for family rights, and the relevant rights provided by the Covenant are applicable in Hong Kong through the Hong Kong Bill of Rights Ordinance (HKBORO). The most relevant articles here are Article 17 and Article 24(1) of the Covenant. ⁴² Among them, Article 17 of the Covenant prohibits arbitrary or unlawful interference with anyone’s family, while Article 24(1) stipulates the right of children to enjoy family protection.⁴³

 

Let’s first look at Article 17 of the Covenant. The wording of Article 17 of the Covenant is very similar to Article 8 of the European Convention on Human Rights. Article 17(1) of the Covenant states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, while Article 8(1) of the European Convention on Human Rights states that everyone has the right to respect for his private and family life, his home and his correspondence. In Hong Kong’s legal practice, when the provisions of the European Convention on Human Rights and the Covenant, as well as the Hong Kong Bill of Rights Ordinance, are similar, Hong Kong courts often refer to relevant case law from the European Convention on Human Rights to interpret the Covenant and the Hong Kong Bill of Rights Ordinance. ⁴⁴ Therefore, the interpretation of the meaning of Article 17 of the Covenant also involves the issue of referring to Article 8 of the European Convention on Human Rights.

 

In the judgment, then Court of Appeal Judge Joseph P Fok, who is now a permanent judge of the Court of Final Appeal, referred to the rights provided by Section 14 of the Hong Kong Bill of Rights Ordinance and Article 17 of the Covenant as “the right to privacy” in a summary manner.⁴⁵ However, this was done for the sake of convenience in narration and does not imply that he made a substantive judgment on this matter. “Given the importance of the issue and the quality of the arguments on both sides,” Judge Joseph P Fok said summarizing the arguments of the two lawyers: One side argued that the rights protected by Section 14 of the Hong Kong Bill of Rights Ordinance and Article 8 of the European Convention on Human Rights are the same, with their content developed by a series of European precedents. The other side argued that the family rights protected by the Hong Kong Bill of Rights Ordinance are not the same as those under the European Convention on Human Rights, with the former merely prohibiting interference with privacy while the latter imposes a positive obligation on the state (referred to as the “dual obligations” by Zhang Xiang mentioned earlier). Judge Joseph P Fok did not express his agreement with either party’s viewpoint. In other words, the rights content provided by Article 8 of the European Convention on Human Rights has not been explicitly introduced into Hong Kong through Section 14 of the Hong Kong Bill of Rights Ordinance and Article 17 of the Covenant.

 

In contrast, the right enshrined in Article 24(1) of the Covenant, which states that every child shall have... the right to such measures of protection from the family, substantially enriches the content of the right to “family life” within the legal framework of Hong Kong. So, what exactly is the right protected by Article 24(1) of the Covenant? This provision actually has two key points. First, it prohibits discrimination, and second, it requires that families, society, and the state provide “special” protection to children. During the drafting process of the Covenant, there was debate about the significance of this provision. Opponents argued that the Covenant is meant to protect everyone, and singling out children for special mention might imply that other provisions do not apply to them. However, the arguments in favor were ultimately accepted by those who ratified the Covenant. Supporters argued that Article 10(3) of the International Covenant on Economic, Social, and Cultural Rights states that “Special measures of protection and assistance should be taken on behalf of all children and young persons,” and since children are indeed different from adults in many ways, special protection remains necessary.⁴⁶ As for the purpose of these special protective measures, various contracting states that proposed amendments have more or less talked about enabling children to achieve “physical and mental health, comprehensive development, and full personality.” It is particularly noteworthy that representatives of contracting states who opposed including “special measures” in the treaty once suggested that issues such as “parental rights” should be governed by civil law provisions and a separate treaty should be created.⁴⁷ However, from the supporting opinions, it is clear that they believe that this provision protects not the civil law right of parental authority but rather the public law right of children to be protected by their families, among other things.

 

Of course, this also raises another question: What is the substantive content of the right that “children shall be protected by their family”? Article 9(1) of the Convention on the Rights of the Child states: “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case, such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.” So, based on Article 24(1) of the Covenant and Article 9(1) of the Convention on the Rights of the Child, does the right to “family life” in Hong Kong imply that children and parents have the right to “enjoy stable cohabitation”?

 

Not so. In the case of Santosh Thewe & Another v. Director of Immigration, Justice Stock emphasized that the United Kingdom had explicitly made a reservation when it acceded to the Covenant, allowing the restriction of individuals’ entry and exit using immigration laws.⁴⁸ This means that in cases involving immigration control, Hong Kong law does not recognize any rights related to “family reunion.” However, in some criminal sentencing decisions, Hong Kong judges explicitly consider the rights of children as members of the family. When it is necessary to send a mother with young children to prison, judges acknowledge that the punishment would forcibly separate parents from their children, thereby depriving the children of the care they should receive according to the Convention on the Rights of the Child. ⁴⁹ However, the judges believes that this course of action is unavoidable.

 

In Hong Kong common law, it is the same. In the case of BI v. Director of Immigration, the then-Chief Judge of the Court of Appeal, Andrew Cheung, explicitly stated that there is no such thing as a “family reunion right” in the common law of Hong Kong.⁵⁰ He explained that in Hong Kong common law, the right not to be exiled could never override immigration control. Since Hong Kong is a cosmopolitan city with many residents having close family members living elsewhere, Hong Kong courts have repeatedly affirmed that the Director of Immigration has the authority to determine whether individuals are allowed entry into Hong Kong based on its immigration policies. Hong Kong residents do not have a common law right to bring their close relatives to live in Hong Kong. In other words, the right to a “stable common life,” as the primary content of the family right, does not exist in Hong Kong, taking into account both international human rights law and common law principles.

 

International human rights law protects children’s rights, and if these rights are to be incorporated into Hong Kong law through Article 39 of the Basic Law, their core content can also be interpreted as the utmost effort to maintain the close ties between parents and children. A recent surrogacy case illustrates this point well. In this case, a couple who were both U.S. citizens and permanent residents of Hong Kong faced a unique situation. The wife was unable to conceive and give birth for medical reasons. Seeking a solution, they consulted with legal experts and decided to pursue surrogacy in the United States. Through in vitro fertilization, a surrogate mother in California gave birth to boy-girl twins on their behalf. The California authorities legally recognized the couple as the parents of the twins. After the twins were born, the couple moved to Hong Kong with them. The children held U.S. passports, and Hong Kong granted them dependent visas based on their family ties. In 2017, this family went on vacation out of Hong Kong and during their stay, their children’s visas expired. As a result, they had to apply for temporary visitor visas to return to Hong Kong. In early 2018, this couple had to reapply for dependent visas for their children and informed the authorities that the children were born through surrogacy. They now needed the Hong Kong court to issue an order recognizing them as the legal parents, which would then grant the dependent visas. The issue was that, according to Hong Kong law, the surrogate mother, not the woman in this couple, was considered the legal mother of the twins. The children’s biological parents could only be legally recognized as such when a series of conditions were met. Fortunately, this couple met most of these conditions except one: the timing of their application was nearly 21 months past the statutory deadline. The court reasoned that if these parents were required to change their application to adoption for the twins, it would effectively negate the substantial identity already established between the parents and the children, severely disrupting the “biological and social connections” that had already been established. This would constitute a serious infringement on the children’s “family life” rights.

 

This couple and their children have been living together in a stable family unit, and even if the Hong Kong court did not issue an order recognizing them as the legal parents and required them to seek alternative legal remedies, it would not have an immediate impact on the stability of this family’s life. However, because of the importance of the close bonds already established among the family members, the court went beyond the limitations of statutory law. They did so on the grounds of protecting fundamental constitutional rights and rejected the strict application of the statutory deadline.⁵¹

 

 

Based on all the discussions above, let’s revisit the report from the NPC Legislative Affairs Commission. Currently, legal scholars in China have only explained the improper aspects of “mandatory paternity testing” concerning citizens’ personal dignity, privacy, etc., without delving into the issue of its infringement on the fundamental constitutional right to “family life.” Considering all these factors, the assertion that “mandatory paternity testing disrupts the harmony and stability of family relationships” is primarily because it directly infringes on the “close ties” among family members, rather than other reasons.

 

 

Legal identity rights can be excluded as the primary concern. From the perspective of the test results, mandatory paternity testing, when confirming the biological relationship between parent and child, only serves to affirm parental rights. In cases where the test results indicate a non-biological relationship if there was a pre-existing legal identity relationship between the parties, the “parental rights” arising from the parent-child relationship would still be legally protected. However, if there was no legally recognized parent-child relationship between the parties to begin with, mandatory paternity testing would not result in the loss of parental rights.

 

The parents’ right to educate their children is not relevant in this context. The issue here revolves around whether the government’s actions would exclude parents’ “right to protect the rights of their children” in the civil sphere. Under the current technological conditions, mandatory paternity testing does have an impact on the personal rights of the children involved, albeit limited. However, does it infringe upon the children’s privacy rights? Based on China’s legal texts and practices, it is challenging to argue that “children have a legal right to demand that their biological parents not be known to the state.” The premise of birth registration and household registration management is that the parents of fetuses and newborns are known to the state. From the perspective of fetuses and newborns, this information should not be hidden and is something the state has a legitimate interest in knowing. Under international human rights law, children indeed have the right to know their biological parents, and when necessary, they can seek assistance from the state to obtain such information.

 

 

This argument is also not very relevant. Mandatory paternity testing certainly violates the personal dignity and privacy of the parties involved. However, it’s worth noting that the NPC Legislative Affairs Commission report has already explicitly mentioned both the right to personal dignity and privacy, and “family life” as another distinct aspect in parallel with them, suggesting that it may have its specific intended scope and object.

 

Of course, there is indeed a recognition in European human rights law that the various rights under Article 8 of the European Convention on Human Rights, such as “private and family life, home, and correspondence”, are interrelated, and harm to one may affect the others. Therefore, there is no strict need to separate the core content of individual rights in European human rights law, and there is no need to distinguish between family life and private life, privacy, and other rights. Drawing from this perspective, some may argue about the necessity of differentiating the core content of rights such as personal dignity, privacy, and family life in Chinese law. However, it must be noted that the European human rights law approach is based on the textual formulation of Article 8 of the European Convention on Human Rights, which combines these rights. In the China’s Constitution, rights such as personal dignity, residence, and correspondence are separately regulated by entirely different provisions, and it would not be reasonable from a doctrinal standpoint to conflate them with Articles 48 and 49.

 

In fact, within the parent-child relationship, if they have already known each other’s relationship, mandatory paternity testing will not bring new information. However, if they do not yet know each other’s “true” relationship, especially if the child is unsure whether the parents are their biological parents, the paternity testing may indeed violate the will of the parents, exposing the true parent-child relationship to the child. But this action violates the privacy rights of the parents, rather than the “family life” right that this article highlights.

 

 

Since the parents intend to deny the existence of the “parent-child relationship,” they cannot naturally claim that the children should be “filial.” In fact, “filial piety” is not an ethical concept that is fully accepted in China’s public law.⁵² On the contrary, the family concept in the People’s Republic of China was established by criticizing traditional ethical ideas. Li Xiannian once said that the implementation of the new Marriage Law required the “instillation of new morality.” What is this so-called “new morality”? Hu Sheng said that both filial piety and lack of filial piety are not absolute moral standards. Our attitude towards parents’ pleas can only be determined in specific circumstances.⁵³

 

 

In reality, mandatory paternity testing primarily disrupts the “close ties” among family members rather than their “common life.” The origin of the so-called mandatory paternity testing has been discussed in the media. In some cases, local authorities encountered instances of unauthorized births where the parties involved refused to acknowledge their actions, and the issue remained unresolved for an extended period. In such situations, authorities attempted to gather evidence through paternity testing. The fact that the parties involved refused to acknowledge their actions to government officials does not necessarily mean that they cannot live together as a family. Moreover, in the context of the common phenomenon of “left-behind children,” it is challenging to argue that the China’s Constitution explicitly guarantees family members the right to a stable common life.

 

Parents and children fleeing together to avoid mandatory paternity testing, while still enjoying a common life, may sever the connection between the children and other members of the extended family. In cases involving “false claims,” even though there is a common life, a genuine and complete “recognition” may not be formed, which also constitutes a disruption to the “close ties.” As Deng Yingchao stated, only in a socialist society can mutual respect, mutual assistance, mutual encouragement, mutual concern, and trust truly be established among family members, making family life genuinely warm and affectionate.⁵⁴ The key issue is not whether they can live under the same roof, but whether family members can establish “mutual respect, mutual assistance, mutual encouragement, mutual concern, and trust.” Mandatory paternity testing infringes on the personal dignity and privacy of citizens in the short term, and in the long term, it fundamentally threatens and disrupts the “warm and affectionate family life” that family members have formed based on “close ties.” This is where the true harm lies.

 

 

In the context of legal discourse in China, the “emotional bonds” referred to in civil law can only be translated into the public law language as “close ties.”

 

In China, civil marriage and family laws emphasize the value and role of “emotions.” Classic Marxist writers have regarded family relationships and family life as integral components and derivatives of class relations and social production. They have also used some well-known quotes to satirize the dark side of capitalist family relationships and family life. Early Chinese Marxists also had ideas about “breaking up the family.”⁵⁵ It’s quite interesting that Chinese Marxists, when describing the family lives of revolutionary leaders themselves, often emphasize that their families were filled with love, affection, and other positive emotions. They attribute the success of their careers to having supportive spouses and good parent-child relationships. In the case of Karl Marx, his family life with Jenny Marx was described as being characterized by mutual care, assistance, and encouragement.⁵⁶ In Lenin’s family concept, there is a natural development of a warm family spirit, where siblings have affection for each other and also hold deep affection for their parents, fostering exceptionally profound emotional bonds within the family.⁵⁷ This mode also applies to Chinese Marxists themselves. Deng Yingchao once wrote a preface for the book Love, Marriage, and Family Life of the Old Revolutionaries. ⁵⁸ In the preface, she advocates using the old revolutionaries as role models, where “men and women continually care for and support each other, progressing together.”⁵⁹ Zhang Hua points out that in the 1950 Marriage Law, “the feelings between spouses and the emotions that extend to bonding the relationships within the family” played an “intermediary” role in bridging modern rights claims and Chinese family traditions. This is quite unique compared to the modern Western social relationship construction, which no longer emphasizes romantic love.⁶⁰

 

The issue, however, lies in the fact that the implication of “emotional bonds” is very vague and challenging to establish in legal practice. Since “emotional breakdown” is a legally recognized reason for divorce, Chinese divorce law used to consider emotional factors heavily. However, Huang Zongzhi’s research indicates that formal legal norms during the reform, especially the 2001 Marriage Law (amendment) and the first, second, and third interpretations of the Marriage Law issued by the Supreme People’s Court in the past decade [referring to the first decade of the 21st century], are gradually moving towards completely adopting the principles and practices of Western individualism.”⁶¹ Zhao Liuyang bluntly states, “Moral regulations cannot be specifically applied in legal practice; they merely declare a moral standpoint. In legal practice, divorce is treated as a fact that cannot be avoided. The primary concern of the law is how to specifically resolve disputes rather than repairing emotions. The law demonstrates its adaptation to the constantly changing social realities.”⁶² The judicial interpretation titled “Several Specific Opinions of the Supreme People’s Court on How to Determine that the Spousal Relationship has Indeed Broken Down in the Trial of Divorce Cases” (Court [Civil] Court [189] No.38), which was repealed at the end of 2020 in response to the implementation of the Civil Code, once played a crucial role in the process of determining “whether the spousal relationship has broken down.” However, its provisions have become highly formalized and objective.

 

Another reference point is the so-called “loyalty agreement” or “emotional agreement.” While the Civil Code reiterates that spouses should be loyal to each other, respect each other, and love each other, the provision regarding “love each other” had long been neglected due to its vagueness, and the relatively clearer “loyalty to each other” is still considered “advocative.” Researchers in the practical field have recently confirmed that “loyalty to one’s spouse involves private choices in the personal emotional world, and it should not and cannot be resolved through external coercive means.”⁶³ Even scholars inclined to support the recognition of such agreements can only accept such behavior if it aims to bind subjective emotions such as “extramarital affairs” into objectively regulatable and enforceable actions by law. Other behaviors typically do not fall into this category.⁶⁴

 

The trajectory of civil justice is already very clear, and there is no need for public law to go down the same path. As Li Yongjun has said, “A clear concept of rights is incompatible with the essence of family life.”⁶⁵ In the most ideal situation, family members should indeed maintain strong emotional bonds. However, when it is necessary to define the core content of “family life” using legal mechanisms, what can be recognized and judged by both the parties and the judicial authorities is the presence or absence of “close ties.” In fact, objective “close ties” and subjective “emotional bonds” are two sides of the same coin. While “close ties” do not necessarily imply genuine “emotional bonds” and may even be associated with the moral evils of a Grandet-style family, “emotional bonds” that are not based on “close ties” are likely to be mere illusions and fantasies.

 

 

The above analysis in this article has demonstrated that regarding the fundamental right of family life, both the Chinese mainland and Hong Kong and Macao SARs have shown a convergence in their interpretations, ultimately focusing on the core element of “close ties” among family members. Having understood this point, the author will attempt to briefly analyze the reasons behind this convergence.

 

In the field of comparative law, the dominant approach used to be the so-called functionalist approach, which involves comparing how different legal systems in different societies address the same practical issues.⁶⁶ Konrad Zweigert and Hein Kotz, widely recognized as representatives of the functionalist approach, have stated that the law of every society is fundamentally faced with the same issues, but different legal systems resolve these issues in vastly different ways, even though the ultimate results may be the same.⁶⁷ Following the rise of functionalism, legal culture comparison emerged. Professor Mi Jian has pointed out that it primarily explores the formation and development of different legal orders from a cultural perspective, and on this basis, further compares and elucidates the characteristics of different legal orders, both their similarities and differences.⁶⁸ In the research on the Basic Laws of Hong Kong and Macao conducted through a comparative approach, the “old hypothesis” that emerged from the cultural comparison approach has had a powerful influence and explanatory power. According to this approach, the Chinese mainland and Hong Kong and Macao SARs have followed different development trajectories in their legal systems in modern times. As a result of legal transplantation, the enacted laws and legal cultures in these three regions have significant and, in some cases, fundamental differences.⁶⁹

 

If the subject of discussion is the Chinese mainland law as a whole, and the “local laws” of Hong Kong and Macao SARs, then the “old hypothesis” that arises from the cultural comparison approach might indeed be accurate. However, as Professor Mi Jian has pointed out, the dominant legal culture in Hong Kong and Macao is still rooted in Chinese legal culture, and these regions ultimately share a common legal culture as the foundation of their legal systems, given that they are places where Chinese people live and reproduce.⁷⁰ In the context of the subject matter of this article, the legal practices in these three regions are indeed influenced by different legal cultures. For example, Hong Kong’s judicial institutions may focus more on the development of European human rights law, while the civil judiciary of the Chinese mainland may occasionally refer to traditional Chinese ethical concepts. However, when we focus on the core content of fundamental rights at the constitutional level, at least with regard to “family life,” legal culture does not have the huge impact that previous scholars might have imagined. Despite significant differences in the wording of the Constitution and the relevant provisions of the two Basic Laws, the result is not “incompatible”, but rather a “convergence” of three different legal traditions. This is quite intriguing.

 

The functionalist approach may help explain this phenomenon. Both the Chinese mainland and Hong Kong and Macao SARs cannot recognize “family life” as implying “family reunification” or “stable common life” to a significant extent, as it is largely a result of the development under similar societal population pressures. It is wellknown that after World War II, East Asian economies, starting with Japan, rapidly took off, and the Asian “Four Little Dragons” and “Four Little Tigers” emerged. The Chinese mainland later caught up, forming the so-called “Flying Geese Paradigm.”

 

Economists explain that the essence of it is the “transfer of industries within the region,” where early-developed countries such as too Japan successively transferred labor-intensive industries, technology-intensive industries, and capital-intensive industries to later-developed countries, forming vertical specialization between countries with different economic development levels and deepening horizontal specialization among countries with similar economic development levels.⁷¹ Hong Kong did experience a period of concentration of labor-intensive industries with significant demand for labor, but this gradually decreased over time, and policies evolved accordingly.⁷² In recent years, Chinese mainland economists have also used this paradigm to explain the development structure that has formed between eastern and western regions and between urban and rural areas in the Chinese mainland. Eastern regions and urban areas also face significant population pressures. Recognizing the right of citizens to have an undifferentiated “stable common life” with family members is not feasible under current conditions.

 

In any case, the functionalist approach can ultimately explain why the “stable common life” argument is not accepted but cannot explain how the “close ties” argument prevails. Perhaps the answer needs to be sought in the positive law itself.

 

The authorities in the Chinese mainland and Hong Kong and Macao SARs interpret the core content of the “right to family life” as maintaining close ties among family members, particularly in the case of Macao’s judicial authorities, which is closely related to the Convention on the Rights of the Child. The Convention on the Rights of the Child is an international treaty applicable to Macao.⁷³ Article 9(3) and Article 10(2) of the Convention on the Rights of the Child both stipulate the right of children to maintain personal relations and direct contact with both parents under various circumstances. The use of the term “close ties” by Macao’s judicial authorities has its origins in this convention. Cai Lin has recently pointed out insightfully that, concerning the relationship between parents and minor children within the family, in addition to constitutional provisions, the Convention on the Rights of the Child, ratified by the Standing Committee of the National People’s Congress in 1991, also plays a normative role.⁷⁴ On September 8, 2021, the State Council issued the Outline on the Development of Chinese Children (G.F. [2021] No.16), which came into effect on the same day. This document requires the “serious fulfillment of international conventions and documents such as the Convention on the Rights of the Child issued by the United Nations... and the absorption and reference of valuable international experiences in the field of children.” On September 9, 2021, the State Council Information Office issued the “Human Rights Action Plan of China (2021-2025)”, which states that China will “fulfill its commitments to the international community with sincerity, engage in international human rights affairs, and lobby for and work toward a better global human rights governance system.” Under the category of “Fulfilling Obligations to International Human Rights Conventions”, it includes “completing its fifth and sixth combined report on implementing the Convention on the Rights of the Child” and “submitting it to the UN Committee on the Rights of the Child for review.” Similarly, Hong Kong has incorporated the Convention on the Rights of the Child into its legal practice. As explained by Chen Hongyi, in the 1990s, the Convention on the Rights of the Child applied to Hong Kong under the “dual” approach, as the relationship between international law and domestic law was handled by both the United Kingdom and Hong Kong. At that time, due to the absence of legislation specifically incorporating the provisions of these human rights conventions into domestic law, Hong Kong courts were unable to directly apply the relevant provisions of the conventions in judicial cases.⁷⁵ However, as mentioned earlier, Hong Kong’s judicial authorities often refer to the provisions of the conventions when interpreting the law.

 

The Convention on the Rights of the Child also revisits the statement in the Universal Declaration of Human Rights that the child, by reason of physical and mental immaturity, needs special safeguards and care.⁷⁶ It can also be said that the Convention on the Rights of the Child specifies this declaration from the Universal Declaration of Human Rights. General Secretary Xi Jinping points out that the Universal Declaration of Human Rights is an important document in the history of human civilization, and it has had a profound impact on the development of the world’s human rights cause.⁷⁷ Mo Jihong states that it is somewhat forced to use the concept of “human rights” in the phrase “the state respects and protects human rights” to encompass the human rights matters stipulated in China’s current constitution and laws... Therefore, a more feasible interpretive approach is to systematically interpret the concept of “human rights” in this statement in accordance with the guiding principles of the Universal Declaration of Human Rights. ⁷⁸ In 2004, when China amended its constitution, it inserted the principle of “the state respects and protects human rights.” This addition was not meant to provide a broad summary of the existing rights already enumerated in the Constitution but rather to incorporate and harmonize the content of international human rights law, as articulated in documents like the Universal Declaration of Human Rights, into the constitutional framework. This integration of international human rights principles with the Constitution’s enumerated rights is in line with legal practices in Hong Kong and Macao, reflecting a resonance between these regions and the Chinese mainland in this regard.

 

The Report to the 20^th National Congress of the Communist Party of China puts forward that we should promote the development of the Guangdong-Hong Kong-Macao Greater Bay Area and support Hong Kong and Macao in better integrating into the national development, to better contribute to the great rejuvenation of the Chinese nation. In a more similar social and economic context, it can be foreseen that, apart from the right to family life, the core content of other basic rights may also be interpreted more and more similarly in practice, either sooner or later. This phenomenon does not involve the differences in social systems and lifestyles between the Chinese mainland and Hong Kong and Macao SARs, but signifies that the Chinese nation is moving in a coordinated manner towards “Chinese modernization.” As a consensus is increasingly reached on the understanding of the core content of basic rights, and as the protection of people’s rights in the Greater Bay Area becomes more comprehensive and effective, Chinese citizens will no longer feel the “temperature difference” in the legal environment when crossing between the Chinese mainland and Hong Kong and Macao SARs. These two special administrative regions have already entered a new stage of development. The China’s Constitution and the Basic Laws of Hong Kong and Macao provide comprehensive protection for Chinese citizens living in the Greater Bay Area and throughout China. This is the promising future of the continuous development of the “one country, two systems” practice.

 

 

 

(Translated by LI Donglin)