Hong Kong Basic Law

Defending Hong Kong’s Basic Law: why it should be honoured by all, including Beijing

Cliff Buddle says despite some setbacks, the constitution designed to enable Hong Kong’s unique arrangements under Chinese sovereignty has effectively safeguarded people’s rights and freedoms. Threats against the city’s autonomy are not reasons to scrap or renegotiate the document

PUBLISHED : Wednesday, 17 May, 2017, 5:23pm
UPDATED : Wednesday, 17 May, 2017, 6:34pm

Should the Basic Law be scrapped? The prospect should strike fear into the hearts of all Hong Kong people. This, after all, is the law which has served as the city’s constitution since its return to China 20 years ago.

The idea of dumping the Basic Law on the constitutional scrap heap was raised by a law lecturer from the UK recently in a refreshing and thought-provoking opinion article in the Post. Dr Brian Christopher Jones, from the Liverpool Hope University, suggested the Basic Law is a failed constitution. He said the law had been hijacked by Beijing, lacked crucial terms such as democracy and only lasts for 50 years anyway. Jones also pointed to recent controversies in which rights protected by the law have been breached.

Certainly, there are worries about the future of the Basic Law and the “one country, two systems” concept it protects. The law has weaknesses and faces growing threats and challenges.

But this extraordinary legal document deserves defending. The little book has, despite some setbacks and controversies, served as an effective guardian of rights and freedoms since the 1997 handover. It has maintained Hong Kong’s separate system from mainland China, preserved the city’s different way of life and provided people with reassurance. Looking back on the last 20 years, I wonder what Hong Kong would have done without the Basic Law.

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Concerns have, justifiably, been raised about threats to freedom of speech and academic freedom, the prosecution of pro-democracy activists and the failure to introduce universal suffrage. There are also fears that the city’s high degree of autonomy is being eroded.

But the Basic Law has been used by the courts to uphold a wide variety of rights and freedoms. They include freedom of assembly, freedom of movement, the right to live in Hong Kong, the right to social welfare and the right to marry. People have had sufficient confidence in the Basic Law to use it in court to assert their rights.

Crucially, the Basic Law, through Article 39, brings the provisions of the International Covenant on Civil and Political Rights into force in Hong Kong. It has meant that the Bill of Rights, which many feared would be scrapped when the city returned to China, has continued to be used by our courts to uphold freedoms.

Beijing’s interpretations have eroded the extent to which Hong Kong people can look at the Basic Law and take comfort from what it says

The Basic Law provides for gradual and orderly progress towards the ultimate aim of universal suffrage. That goal seems as elusive today as it did in 1997. In this respect, the law has, indeed, failed. It might have been different had Beijing not used its powers of interpretation to effectively change the Basic Law in 2004. Instead of it being a process started and shaped in Hong Kong, as originally intended, the National People’s Congress Standing Committee now controls when reform can take place and lays down the rules. But the presence of the words “universal suffrage” in the law, added at a late stage of the drafting process, has at least made reform possible and placed democracy at the centre of the city’s political discourse. The issue will not go away.

Jones, who edited the recent work, Law and Politics of the Taiwan Sunflower and Hong Kong Umbrella Movements, also points out that there is no reference in Hong Kong’s constitution to the rule of law. But the Basic Law does provide for the essential elements of the rule of law. These include equality before the law, an independent judiciary and judicial review, as well protection of human rights. The common law is preserved and the courts are given the final say in legal disputes. The importance of the rule of law to Hong Kong – and the protection the Basic Law provides – cannot be overstated.

Hong Kong must protect its high degree of autonomy to ensure ‘one country, two systems’ remains effective

Any assessment of the Basic Law understandably focuses on rights and freedoms. But there are other areas of the law which have proved to be of fundamental importance in ensuring Hong Kong retains its separate system. The Hong Kong dollar has survived and is still freely convertible. Hong Kong has much lower taxes than mainland China and tax money is not paid to the central government. The city controls its own financial and monetary policies. It remains a free port and customs territory. All of these core features of Hong Kong are protected by the Basic Law.

The ability of the city to strike its own agreements with international organisations and foreign governments and to issue its own passports also remain intact two decades after the handover.

In most important respects, the Basic Law has ensured that the “one country, two systems” arrangement works.

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But there are weaknesses and threats. The political system put in place by the Basic Law is outdated, fragmented and ineffective. The law itself provides a mechanism for change but, as with hopes of universal suffrage, that process has stalled.

The most significant weakness is the failure to provide an independent legal mechanism for the resolution of disputes between Hong Kong and Beijing. The reality is that Hong Kong enjoys as much autonomy as the central government is prepared to allow.

Watch: Hong Kong people protest against Beijing’s interpretation of the Basic Law in November 2016

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Disputes over the meaning of the Basic Law have been settled through interpretations issued by the NPC Standing Committee in Beijing, which cannot be said to be an independent arbiter. There have been five so far. Those interpretations, which bind Hong Kong’s courts, have paid little attention to the wording of the law. In this way, they have eroded the extent to which Hong Kong people can look at the Basic Law and take comfort from what it says. If such interpretations become common, the Basic Law will lose its meaning. Much depends on the willingness of Beijing to leave these disputes to the Hong Kong courts.

The reality is that Hong Kong enjoys as much autonomy as the central government is prepared to allow

The Basic Law only provides the city with a guarantee that its way of life and separate system will remain unchanged until 2047. In recent times, there have even been suggestions that “one country, two systems” be scrapped before then. But there is no reason why the Basic Law should not remain in place after 2047. It is in China’s interests to show that the unique arrangements put in place for Hong Kong’s return have stood the test of time.

Jones noted that Hong Kong people tend to cling to the text of the Basic Law for dear life (adding that he did not blame them). There is a simple reason for that. It is all we have to cling on to.

The rights and freedoms protected by the Basic Law must be upheld and Hong Kong’s high degree of autonomy honoured. Both are coming under increased pressure. But the answer lies in respecting the wording of the Basic Law, not renegotiating or scrapping it.

Cliff Buddle is the Post’s editor, special projects