Who will defend our autonomy?

Yash Ghai

Solicitor-General Robert Allock has a habit of defending the central government's legal positions. He defends both the powers of the central authorities to interpret the Basic Law at will, and the contents of the latest interpretation. He says that it is wrong to criticise the National People's Congress Standing Committee's power of interpretation as undermining Hong Kong's autonomy, since the exercise of that power 'is a reflection of the limits of Hong Kong's high degree of autonomy, not an erosion of it'.

To the extent that he is correct, the statement is more damaging than he may realise. It means that Hong Kong has no autonomy whatsoever; the Standing Committee can make any type of interpretation, unilaterally and without the possibility of correction.

And just because a power exists, it does not mean that there cannot be an understanding (or even conventions) about restrictions on its use. The US Congress retains full jurisdiction over Puerto Rico, but its relationship with the autonomous commonwealth would not survive a day if Congress intervened on issues considered critical by Puerto Ricans, especially without detailed consultation. Mr Allcock implies that interpretations do not amount to an 'amendment' of the Basic Law, when in fact it has been the accepted position on the mainland that interpretations by the Standing Committee may extend the law. And to equate what the Standing Committee did with what common-law courts do is a grave misunderstanding of the judicial process - and of the consequences of the Standing Committee's powers of interpretation.

To be fair to Mr Allcock, other senior Hong Kong officials are in the similar habit of defending the central authorities. There is no point criticising for the sake of it. But what is a little odd is that these officials never seem to criticise any position taken by the central government - and defend its position when they have no constitutional responsibility to do so. I say it is odd, because one expects a central government and a government of an autonomous area to be frequently at loggerheads, and to carry on animated debates in public about their differences.

Why is the relationship between the Hong Kong administration and the mainland authorities so different, seemingly bordering on great harmony? One basic reason why differences can be aired elsewhere is because both the central government and the autonomous area are democratic. Both parties know that there are firm legal rules about the division of powers and their relationship, that a process of negotiation is likely to ensue, and that ultimately there are independent judicial institutions which will resolve differences if all else fails.

Should we rejoice or worry that the mainland and Hong Kong appear to enjoy better relations? My opinion is that we should worry. Consider why the Hong Kong administration constantly feels compelled to defer to the central government. The answer lies in Mr Allcock's implicit confession that Hong Kong does not have true autonomy. Quiet diplomacy, in which massive concessions are made to the central government, is not altogether an irrational option. But the Hong Kong government's position is further weakened due to the lack of a popular mandate.

The chief executive and senior officials are appointed by Beijing. And the chief executive cannot be removed without the central government's consent. The administration is therefore fundamentally dependent on the goodwill of Beijing and is unable to stand up for Hong Kong.

The consequences are that there is little real debate on options and policies, especially if the central government is deemed to have a firm position. In the absence of meaningful debate, the best options may not emerge, or may be considered too dangerous. Hong Kong people will begin to fear that they have no one to turn to, and may, in the end, submit to Beijing's will, and thus negate the promise of autonomy.

The energy and vitality - and progress - that come from taking responsibility for one's destiny, engaging in policymaking, and the sense of being in charge, will be lost, and with it the point of 'one country, two systems'.

Yash Ghai is a commentator on the Basic Law and a constitutional law expert