The statement by Chen Zuoer, deputy director of the Hong Kong and Macau Affairs Office, that it is against the Basic Law for the Legislative Council to mourn the death of Zhao Ziyang, and the refusal of Legco president Rita Fan Hsu Lai-tai to allow a minute's silence, mark the low point in the abuse of Hong Kong's constitution.
The Basic Law has been much used and abused for partisan political purposes since even before it came into effect. It has been used to emphasise Hong Kong's autonomy, or to assert Beijing's sovereignty - whichever best suited Beijing and the Tung administration. It has been used to forge alliances with former associates of the British, and punish those perceived to oppose Beijing's policies towards Hong Kong. There has been no principled approach.
The central government embarked on drafting the Basic Law soon after the Sino-British Joint Declaration was signed. One reason was to pre-empt political reform, and initiatives such as infrastructural development, that Britain might undertake in the remaining years. Beijing used the drafting process to deviate in important respects from its obligations (such as the interpretation of the Basic Law, qualifications on human rights based on national security concerns, and the equal rights of all permanent residents). It also used the process to fill in, to its liking, the details that it had been able to keep out of, or express ambiguously, in the declaration. Most critically, these related to the design of political institutions and the scope of democracy. The restrictive franchise, the lack of accountability of the chief executive, and the dependence of that office on Beijing have undermined the Basic Law's essential purpose of protecting Hong Kong's autonomy.
The unrestricted and overriding power that Beijing asserts through the National People's Congress Standing Committee - that of interpretation - has been put to various uses. It was used to court former associates of the British, principally the business community, by reinterpreting the Chinese nationality law, and the Basic Law, to provide a legal status for returnees from Canada and elsewhere. It was used to eliminate some laws passed during governor Chris Patten's term. It was used to bolster the administration's opposition to the right of abode of mainland children of Hong Kong permanent residents. Most recently, it has served to sharpen Beijing's control over Hong Kong's affairs in what is arguably a breach of our autonomy.
Yet when it has suited them, Beijing and the Hong Kong administration have emphasised the city's autonomy under the Basic Law. To international organisations and states, Beijing has asserted that autonomy to ensure Hong Kong's membership of numerous institutions and treaties that are crucial to its participation in global markets. This assurance has been used to free Hong Kong from restrictions that applied to the mainland. In the run up to, and shortly after, the transfer of sovereignty, I was an expert witness in several cases involving the extradition of suspects to Hong Kong. The validity of Hong Kong's extradition arrangements depended on whether it had a legal system independent from the mainland. The Department of Justice routinely dismissed my observations about Beijing's numerous powers of intervention. Yet on numerous occasions, the Tung administration has asserted that the sovereignty of the central government overrides every other legal principle.
The mantra of the Basic Law and 'one country, two systems' was a recurring theme in Mr Tung's policy speech. But how are the people to respect a law for which neither Beijing nor the Hong Kong administration has shown much respect? A law compels obedience only when the ruler and the ruled are equally bound by it. Opportunistic use is a sure way to discredit a law. I fear that fate has befallen the supposed charter of Hong Kong's autonomy and self-government.