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.
Anti-democrats reach for the Basic Law to block progress
Stephen Vines says opponents of an open vote can count on Beijing's backing when it comes to constitutional reform
Although this has not been headline news, something very interesting has happened in the debate over constitutional reform. The anti-democrats have more or less given up their previous strategies for opposing genuine universal suffrage and now focus almost entirely on limiting democratic progress by confining their argument to the legal constraints allegedly contained in the Basic Law.
We used to be entertained by dire warnings about the dangers of democracy: that it will produce chaos, undermine the business community and is a terrible Western import that has no place in Chinese society. But no longer.
Yet, some anti-democrats have not got the message, and are still coming up with arguments such as, because there is some chaos in Thailand, real elections would surely produce the same thing here.
If what happens in Thailand axiomatically happens here, why, for example, has Hong Kong not developed a vast auto-parts manufacturing industry just like the one on the outskirts of Bangkok? Yes, it's nonsense.
Anyway, the bottom line is that, by and large, the anti-democrats have moved onto much firmer ground. They now sort of say democracy might be a worthy objective but stress that its implementation is severely curtailed by Basic Law provisions.
And who decides how to interpret this law? Well, fortunately this is in the hands of the National People's Congress, and lawmakers in Beijing are of course highly unlikely to exercise a liberal interpretation of the law in favour of genuine democracy.
All this begs the question of what the Basic Law actually says. Article 45 provides a more or less open book for any kind of election for the chief executive and uses words such as "democratic processes". Similarly, Article 68, which relates to election of the legislature, is pretty much an open book as far as methods go, and also stresses the term "universal suffrage".
It is, however, true that Annex I of the Basic Law stresses the role of the Election Committee in the chief executive election but clearly states that, after 2007, the committee's structure can be changed. The anti-democrats talk less about Annex II because it leaves the door wide open for the coming election.
Even were it not the case that there really is nothing in the Basic Law that prevents the holding of genuinely democratic elections, it is important to appreciate that this is essentially a constitutional document that sets out broad principles.
In other jurisdictions, the interpretation of constitutional documents is left to the highest courts. Elected representatives can make changes to constitutions or they can be directly changed after holding referendums.
In Hong Kong, both the highest court and the legislature have no final say in interpreting or changing the constitution. These powers are vested in the NPC. Thus, the anti-democrats can be quite confident that progress towards genuine democracy can ultimately be thwarted in Beijing.
Safe in this knowledge, they have simply ceased arguing the merits of their case and triumphantly declare that anything too closely resembling free and fair elections is in breach of the Basic Law.
They correctly assume that their clamour for a highly restrictive interpretation of the law will be well received in Beijing. Why, then, bother trying to defend the indefensible as they once did?
Stephen Vines is a Hong Kong-based journalist and entrepreneur