Hong Kong people must understand the limits of their autonomy as a Chinese special administrative region
Alan Hoo says persistent opposition to NPC interpretations of the Basic Law – a national law – stems from mistaken ideas about the parameters of Hong Kong’s autonomy
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To avoid conflict and argument over whether the “previous capitalist system” was being maintained or eroded, “basic policies” were spelt out in the Joint Declaration to define the separate system in Hong Kong. These are the constituent building blocks of the “previous capitalist system” (the judicial system, economic and financial system, social and taxation system, transport system, for example), and were colloquially known as “a 1984 snapshot of Hong Kong”.
The Joint Declaration pledged that all these policies would be “stipulated in a Basic Law” to be passed by the NPC. Therefore, all the provisions of the Joint Declaration are justiciable under this mini constitution. In 1989, the final draft of the Basic Law was tabled and unanimously endorsed by the UK Parliament to be a true and accurate embodiment of all the basic policies in the Joint Declaration. Consequently, the NPC promulgated the final draft into the Basic Law on April 4, 1990.
A large number of important issues could not be considered and agreed in 1984 when the Joint Declaration was signed, or in 1990 when the Basic Law was promulgated. The work of the Joint Liaison Group continued right up to 2000 to supplement the basic policies. For example, the important issues of who has right of abode in Hong Kong was only agreed by the group in 1996 and implemented through local Hong Kong legislation in 1997. This was very important as it does not allow masses of mainland Chinese citizens to have a right of abode in Hong Kong post handover, unlike UK citizens during the colonial era.
Why Beijing saw fit to interpret Hong Kong’s Basic Law
On May 18, 1999, the chief executive requested an interpretation of the relevant Basic Law articles to establish the true legislative intent. The NPC Standing Committee issued an interpretation in accordance with the 1996 agreement and this serves as a cogent example of how the interpretation safeguarded the proper implementation of the Basic Law.
Yet, opposition groups in Hong Kong and certain members of the community deliberately distort and maliciously condemn the interpretation as an attack on the rule of law and judicial independence. This is a calculated challenge to the NPC’s authority, a deliberate lie to the people, and itself the worst undermining of the rule of law.
Article 158 states clearly: “The power of interpretation of this law shall be vested in the Standing Committee of the National People’s Congress.” This is because the Basic Law is a national law and has force over the whole country. It is not a local law passed by the Hong Kong legislature, to be interpreted by the Hong Kong courts. Under Article 158, the NPC authorises the Hong Kong courts to interpret “provisions of this law which are within the limits of the autonomy of the region”. There was no delegation to Hong Kong courts to interpret provisions beyond Hong Kong’s autonomy.
Hong Kong courts have no jurisdiction “concerning affairs which are the responsibility of the central people’s government, or concerning the relationship between the central authorities and the region”, according to Article 158. All the basic polices set out in the Joint Declaration and enacted in the Basic Law are matters that define the original capitalist system and therefore prescribesthe relationship between the central authorities and the region. The basic policies underpin the promise by the central government to preserve Hong Kong’s original system and cannot be changed.
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“One country, two systems” has been internationally recognised as having been successfully implemented in Hong Kong. The way of life of Hong Kong people in terms of the freedoms enjoyed and the openness of our society have not only been maintained but further developed after the handover. However, some groups are waging a never-ending “crusade” against Beijing, claiming the people are oppressed. For opposition politicians, this war with, and relentless demonisation of, the central government has only served to justify their existence.
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By maintaining this course, not only will Hong Kong not be able to fully realise all the economic benefits by being part of the country, we also incur the indignation and wrath of the rest of the country. Furthermore, there is a danger that some in Hong Kong are being manipulated by foreign elements to destabilise China through Hong Kong. The strife with Beijing only serves to alienate Hong Kong from its own country.
The deliberate distortion of the true parameters of our autonomy and the malicious undermining of the bona fides of the central government in upholding “one country, two systems” are efforts to destroy the trust and national connection with our country. I do not believe this is what the people of Hong Kong want, nor is it what they deserve.
Alan Hoo is chairman of the Basic Law Institute