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Basic Law

The Basic Law was drafted as part of the Sino-British Joint Declaration covering Hong Kong after its handover to China on July 1, 1997. The joint declaration stated that Hong Kong would be governed under the principle of ‘one country-two systems’ and would continue to enjoy its capitalist system and individual freedoms for 50 years after the handover.

CommentInsight & Opinion

Hong Kong must honour obligations if it is to keep way of life after 2047

Grenville Cross says Hongkongers cannot take it for granted that nothing will change after 2047. If the city fails to fulfil its Basic Law obligations, Beijing might rescind 'one country, two systems'

PUBLISHED : Thursday, 27 December, 2012, 12:00am
UPDATED : Thursday, 27 December, 2012, 3:09am

The Basic Law is a two-way street: it enshrines residents' rights, and identifies responsibilities. Although Hong Kong's system is guaranteed for 50 years, what happens after that is unclear. The future, however, may be shaped by the way local people meet their obligations and interact with their compatriots.

When the justice secretary, Rimsky Yuen Kwok-keung, announced that the government would invite the Court of Final Appeal to consider referring the permanent residency issue to the National People's Congress Standing Committee for interpretation, some people remonstrated. The move, however, is legitimate under the Basic Law Article 158. The court itself, having heard submissions, will decide if the referral criteria are met.

The furore over Yuen's move, however, suggests that the former justice secretary, Elsie Leung Oi-sie, may have had a point when she claimed that some people in the legal world lacked a proper appreciation of the relationship between Beijing and Hong Kong. The Basic Law, of course, provides an interface between the two legal systems, and for Yuen to seek a judicial referral accords with legal precedent, as in the Congo case over the issue of state immunity. However, overreaction to Yuen's move could play into the hands of people not well disposed towards Hong Kong.

When the previous justice secretary, Wong Yan-lung, was appointed in 2005, he quickly announced that he had no plans to bring forward national security legislation. Although this played well in some quarters, it disturbed people who felt that difficult decisions should not be sidestepped. Wong, of course, had only kicked the can down the road. After all, Basic Law Article 23 requires Hong Kong to "enact laws on its own" for national security, and this duty cannot always be ducked.

Indeed, when President Hu Jintao visited Hong Kong in July, he said "it is essential to put into practice each and every provision of the Basic Law". If this was not clear enough, the deputy director of the central government's liaison office, Li Gang , said last month that Hong Kong had a constitutional responsibility to enact national security legislation. So, too, did Zhang Xiaoming , then deputy director of the State Council's Hong Kong and Macau Affairs Office and now head of central government's liaison office here.

The Basic Law, after all, is not an à la carte menu, but a package to be honoured in full. If Hong Kong does not fulfil its part of the bargain, its bona fides may be questioned come the reckoning day. The central authorities have invariably supported the "one country, two systems" principle, and if they feel let down, or otherwise dismayed at the hostility sometimes directed their way, who can blame them?

After the Lamma ferry crash, for example, Li rushed to Queen Mary Hospital to express sympathy, yet found himself criticised for upstaging the chief executive, Leung Chun-ying. Although Guangdong authorities sent four salvage ships to help out, little credit was given. Pronouncements by state leaders, designed to show national solidarity, were construed as an intrusion into local affairs.

The plan to allow non-permanent Shenzhen residents to apply for multi-entry permits for individual travel to Hong Kong, although recently deferred, triggered claims, undoubtedly resented, that Hong Kong would be "swamped" by mainland "hordes".

Moreover, the government's plan to ease the housing shortage, by developing new towns in the New Territories, has been stigmatised as creeping "mainlandisation". Although there are legitimate concerns over the effects on farming, the conspiracy theorists have conjured up a scenario in which mainlanders buy up second homes in the new towns, leading to a merger of Hong Kong and Shenzhen. Such claims undoubtedly reflect some latent antipathy towards mainlanders, which may one day be reciprocated.

At last month's City Forum, am730 associate publisher Danny Fung Chun-chiu said slogans such as "we are Hongkongers" had tested Beijing's bottom line. Holden Chow Ho-ding, chairman of the Young Democratic Alliance for the Betterment and Progress of Hong Kong, said local people should not just think of themselves, but listen to mainland views, and he had a point.

Zhang Xiaoming also claimed that outside powers had co-ordinated campaigns for opposition parties in local elections. There seem to be real worries in mainland circles over local developments, and we should all feel concerned: the future of "one country, two systems" depends on Beijing's confidence in its efficacy.

Once serious thought is given to what will happen after 2047, Hong Kong will, if it wishes to retain its present system, need every friend in Beijing it can get. Some people, after all, have long memories, and if they recall discord and ingratitude, they may conclude that the post-1997 arrangements have failed to deliver. If the Basic Law is not fully implemented, if the central government is not trusted, and if mainlanders are not accepted, there may well be voices in Beijing which say that "one country, two systems" has had its day.

If so, this would be a tragedy, not least because Hong Kong, in its present incarnation, has much to offer China, as well as the world. It is surely incumbent upon everyone who cares for the city to live up to their responsibilities, to honour the Basic Law and to respect others. They will, thereby, hopefully ensure that Hong Kong's unique status not only survives after 2047, but goes from strength to strength.

Grenville Cross SC, an honorary professor of law at the University of Hong Kong, has served as a legal adviser to governments in Hong Kong and the United Kingdom

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This article is now closed to comments

A Hong Konger
Despite the flowery language the Basic Law is temporary convenience. That's all. It was (and still is) envisaged that the border will disappear, the Renminbi would be adopted and the PSB would patrol our street on or before 2047 and we would be damn grateful for the opportunity given that our ancestors had turned their backs on the motherland. A fantasy that shows the disconnect Beijing had in the 80s.
Today is a period of irreversible decentralisation in China economically, socially and politically, with many debating the real power Beijing has over even the provincial governments, even less clear is where this will go at the grassroots level once the mainland economy 'crystallises'.
G. Cross is correct in a narrow legal sense. However, Beijing's power may greatly diminished in the next 10-20 years, HK's next generation of leaders may actually have spines and we Hong Kongers may tire of begging & fight for our home. Furthermore, how can Taiwan, Tibet or Xinjiang come into the fold if we won't? If we unite and insist on a continuation of the Basic Law (or something more), how can Beijing refuse us without alienating us and risking serious confrontation? We shouldn't underestimate our power & the power of our identity. We should focus on increasing our leverage and sense of self rather than placating Beijing, which, by current living & political standards has not gotten us much, except line the pockets of the rich. Only this way can we achieve a lasting reconciliation.
pslhk
“We shouldn't underestimate our power & the power of our identity” ?
Loud and clear
Please tell us more about our/your/their (HK people) identity.
Probably nothing much in common other than words printed on ID cards and passports.
You have no idea who we/you/they are
Knowledge is power
but ignorance is evident
and what you’re trying to leverage
Your crystal ball is **** that shows you
“Beijing's power may greatly diminished in the next 10-20 years ...
“HK's next generation of leaders may actually …
“Beijing has not gotten us much, except line the pockets of the rich …
Discard he **** and get yourself a pair of glasses
sinohog
I don't think that one should underestimate the influence the influence that Hong Kong has had on the mainland over the years. Even before 1997, it began when Hong Kong factory owners moved across the mainland and their production and quality control methods came with them. Then then the major Hongs opened operations all over the mainland including managing China's largest ports that later overtook Hong Kong. The main concern that I have about Hong Kong after 2047 is that the Western economies are doing very poorly now. It is possible that the mainland may decide that the old one country two systems is based on an economic model that no longer works, and his prone to gridlock. Already some of those complaints about Legco have been heard.
clc2
Will the Mainland look more like HK in 2047 or will HK look more like the Mainland?
I would suggest the former and and that Hong Kong people follow the recommendation of Grenville Cross SC only if and when absolutely necessary.
A Hong Konger
'Convergence', - the idea that HK and China will become similar enough to be politically and economically compatible - is a nice thought, one that people in HK have had for years. But really it was and still is a rationalisation to make the handover more palatable. If we are lucky in the future, China will have a living standard comparable to Thailand; battling separatism and political unrest with a more repressive government, while HK will resemble Tokyo; a well ordered, wealthy, technocracy with hopelessly inept politicians. Better for both, but still deeply incompatible.
That being the case the status quo would suit both sides. Should China suggest otherwise, I don't think grovelling at their feet, as Mr. Cross suggests, would be the best way to secure our future (or respect) in any situation. We've essentially done that for 15 years and it hasn't gotten us much.
boondeiyan
What exactly is the point of Mr. Cross's finger-wagging, I wonder? He provides not a shred of support for his premise that HK people living up to their "responsibilities" will deliver unto them a continuation of Hong Kong's sui generis legal system beyond 2047. One hopes the SCMP op-ed page will not morph into a forum for paternalistic lectures: readers can get their fill of such diatribes for free on the web. Please will the editors ask contributors to achieve a rhetorical standard that befits this publication?
blue
Grenville Cross is just acting like your typical prosecutor, for better or worse.
pslhk
Very clear and reasonable exposition
Sometimes some expats (?) are honest and useful
On this matter of great general and public importance
local jurists are either blind and vociferous
or palsied and ignorant.
Let’s step back and study why
(1) Law school run by imbeciles
is like the fabled hive
turning private vices into public benefits
or worse
turning public vices into private benefits
as imitation **** workers attempt one upmanship
to raise their low intellectual standing
by hyperbolising and contriving social problems to gain high “moral ground”
Bernard Mandeville tells how
(2) A variant of the Stockholm Syndrome
is a perverse politic-cultur-ethnical masochism
a joint production of the teachers’ union and the democratic party.
Later generations will look back
and see them as historical jesters or scum
A Hong Konger
What absolute drivel.
captam
Would someone out there, please translate the above comment into English?

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