image

Hong Kong Basic Law

How Hong Kong can have democracy under ‘one country, two systems’

Tian Feilong says the opposition in Hong Kong needs to sever ties with the independence camp to win Beijing’s trust for political reform within the ‘831’ framework, which is a historic milestone on the road to democracy

PUBLISHED : Wednesday, 04 October, 2017, 5:05pm
UPDATED : Wednesday, 04 October, 2017, 7:04pm

Three years after the ­Occupy protests, Hong Kong’s constitutional system is undergoing a subtle change, where “one country” has become more important, while “two systems” is under integration.

The “full autonomy” movement launched by the opposition – with the support of local and foreign ­forces – is in a quandary, rendering them frustrated and powerless.

Hong Kong Independence” banners put up at university campuses were an expression of this frustration, while cold-blooded attacks on Education Undersecretary Christine Choi Yuk-lin after her son’s death were a way to vent their anger over the political reality.

Two decades after the handover, Beijing is no longer standing on the sidelines in governing Hong Kong. It is now effectively coping with the opposition’s “full autonomy” confrontation project, by using a united front strategy and the rule of law.

Under “one country, two systems” and the Basic Law, “full ­autonomy” for Hong Kong is entirely possible.

The Basic Law of Hong Kong

First, the sovereignty owned by Beijing is basically not the right to govern. It also lacks the right to fully control all matters. This explains why national authority does not penetrate Hong Kong’s autonomy.

Second, Hong Kong is governed through an “executive-led” administration. But Beijing’s trust in and expectations of the chief executive become his or her “original sins”. Indirect elections are criticised as “small-circle elections”, while legislative filibusters, judicial reviews, social movements and the closed, self-governing civil service system have rendered the chief executive powerless.

Third, judicial supremacy is a key feature of the city’s constitution, formed under the Basic Law and common law traditions. Also, because of judicial independence and the final appeal system guaranteed under the Basic Law, the opposition camp’s great influence on Hong Kong’s legal profession, the foreign judge system, and the common order in Hong Kong as a common law region, it is impossible for Beijing to influence how the Basic Law is implemented.

Fourth, the Basic Law has a goal of dual universal suffrage: for the chief executive and legislative elections. If this goal is achieved, the pan-democrats could surpass the pro-establishment camp to ­become a quasi-ruling party.

Fifth, the US has taken over the UK’s role in facilitating freedom and democracy in Hong Kong, thus deepening its ­involvement in and control of the city’s politics.

How ‘one country, two systems’ works

On the surface, political efforts to achieve “full autonomy” have been made within the scope of “one country, two systems” and the Basic Law. But in fact, they have ­deviated from the original intent of the principle and national rationality.

‘One country’ is the primary goal and ‘two systems’ is to serve the primary goal

The primary goal of the “one country, two systems” principle is not to maintain the prosperity and stability of Hong Kong or attain a high degree of autonomy, but to achieve the modernisation and internationalisation of the country.

It was also designed to serve the sovereignty, security and development interests of the country. In other words, “one country” is the primary goal and “two systems” is to serve the primary goal.

Only a high degree of autonomy in Hong Kong that is conducive to national development is allowed under “one country, two systems”.

What the “full autonomy” movement of the opposition camp contains is a “Hong Kong dream”, not a national one. A movement based on “two systems” without “one country” departs from the original intent of the principle.

The 20 years since the handover saw both a prosperous and stable history for Hong Kong, with a high degree of autonomy. It was also a history of how Beijing practised the rule of law in Hong Kong. Many ­incidents have proven that Beijing has made progress in governing Hong Kong through the rule of law.

Beijing ‘unswerving’ on ‘one country, two systems’, new chief of Hong Kong affairs says

First, the interpretation of the Basic Law in 1999 over the right of abode in Hong Kong and other controversies over the mini-constitution foiled the Hong Kong judiciary’s attempts to carry out anti-constitutional reviews using its right of final appeal. The interpretation also defined the jurisdictional limits of Hong Kong’s judiciary, and removed the possibility of “full ­autonomy” in its judicial system.

Second, the 2004 Basic Law interpretation over the steps to political reform confirmed Beijing’s leading role in Hong Kong’s political development.

Third, Beijing’s political will to build the jurisprudence for the Basic Law and its ambitions in governing Hong Kong were demonstrated in the 2014 “White Paper” on the “one country, two systems” policy.

Fourth, the NPC Standing Committee decision on the 2017 election framework, or the “831” decision, fully assessed Hong Kong’s situation for political reform, followed by the threat of looming Occupy protests. The decision served to build a restrictive framework for universal suffrage, while balancing universal suffrage and national interests.

Fifth, the interpretation of the Basic Law over oath-taking clauses clarified the intent of legislation and gave guidance to the judiciary on its constitutional responsibility of fighting Hong Kong independence, and the need to take into account issues of public order and national interest related to social movements.

Explain This: why all the fuss about Hong Kong independence?

Sixth, President Xi Jinping, in his July 1 speech, clearly stated the long-term strategy of administering Hong Kong in accordance with the law. Xi proposed not only to ­improve systems for the implementation of the Basic Law, but also to improve the system that monitors autonomy for Hong Kong.

Xi Jinping upholds ‘one country, two systems’ for Hong Kong

Occupy movement organisers tried to justify their actions using the platform of civil disobedience. The movement put the rule of law – a core value of Hong Kong – in peril.

Hong Kong must understand the limits of autonomy as a Chinese special administrative region

The movement also gave Beijing the impression that the rule of law is a good thing, but ­democracy is ­destructive and should be monitored by the rule of law.

Fortunately, Beijing, Hong Kong’s judiciary and the local community seem to have reached an unprecedented consensus on the value of the rule of law. The imbalance between democracy and the rule of law created by the Occupy protests seems to have been rectified. But, is it enough to just implement laws? Will democracy then ­become less valuable? And, will it be more difficult to plan for the future of democracy in Hong Kong?

Hong Kong’s legal system is undergoing ‘nationalisation’, and the opposition must realise this

We should say no to radical ­democracy, and Hong Kong independence has nothing to do with democracy. However, democratic universal suffrage was set as an ­experimental goal of the Basic Law. It was not only a political promise by Beijing, but is also a core issue for politics in Hong Kong.

Hong Kong independence has nothing to do with democracy

The answer lies in the irrevocable “831” decision. As the opposition will not accept it in the short term, each side needs to take a step forward to break the deadlock.

Beijing will not give in, as it ­insists on the ­national rationality of “one country, two systems”, and on Hong Kong’s political reform being gradual and orderly. So those in the opposition camp need to adjust their views on real ­democracy, justice and the long-term interests of autonomy. They need to reassess the 831 decision, sever ties with Hong Kong independence advocates, and work towards trust and a consensus with Beijing. They need to move forward within the framework set out by Beijing.

The 831 decision should not be seen as a roadblock for Hong Kong’s democratisation – it is a milestone in history.

Tian Feilong is an associate professor at Beihang University’s Law School in Beijing, and a director of the Chinese Association of Hong Kong and Macau Studies