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Hong Kong Basic Law

Hong Kong’s Basic Law is a constitution with Chinese characteristics, and not meant to lead to democracy

  • Ronald Chiu says the Basic Law only constrains the rights of Hongkongers and puts no limits on Beijing’s authority – and that’s why it must be replaced
PUBLISHED : Saturday, 03 November, 2018, 3:30pm
UPDATED : Saturday, 03 November, 2018, 3:54pm

Hong Kong needs a new constitution, because under the Basic Law, we have no real democracy, no real means of amending the constitution and no real means to check Beijing’s powers.

There will never be democracy under the Basic Law. That is why some Hongkongers now advocate for Hong Kong independence. That is why groups like the Hong Kong National Party have existed.

Last year, law professor Brian Jones argued in these pages that Hong Kong’s constitutional order had failed. He was right; the Basic Law fails because its terms are undemocratic.

First, the Basic Law’s bootleg democracy is so imperfect that even if every word were to be followed to the letter, nothing it could achieve would be what Hong Kong people can accept as democracy. Article 26 provides that permanent residents of the special autonomous region possess “in accordance with law” a right to vote and stand for election. But what does “in accordance with law” mean and who can we actually vote for? We know from Article 45 that it is not our head of government. At best, we “select” a candidate which China may appoint or reject.

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Article 45 goes on: “The ultimate aim is the selection of the [chief executive] by universal suffrage upon nomination by a broadly representative nominating committee”. On “broadly representative”, Annex I provides that only 300 at most out of the 1,200 members of the election committee can be legislators. Thus, the democratically elected voices there will always find themselves drowned out in a sea of pro-establishment sycophancy.

But even if Hong Kong could vote for its own head of government, the chief executive would still not answer solely, or even primarily, to Hong Kong, because under Article 43, the chief executive is doubly accountable to Hong Kong and the central people’s government. And whose interests is she/he to prefer in case of conflict? I suspect that it will be the central government’s interests, not Hong Kong’s.

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Second, the Basic Law cannot be made to serve democracy because the mechanisms of amendment it provides for do not function in reality.

On paper, the city’s Legislative Council could with a two-thirds majority propose a bill for amendment, which the chief executive could endorse, which the National People’s Congress could with a two-thirds majority consent to, and which could eventually become law. In reality, with fewer than two-thirds of our legislature elected, and the rest consisting of pro-establishment functional constituencies, lawmakers would never consent to any amendment giving more power to the vote, or less power to Beijing.

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Third, the Basic Law gives Beijing unlimited powers without imposing binding obligations in return. Consider Article 158, the Basic Law’s so-called interpretation clause, which on its face does no more than let local courts seek clarification from China’s highest judicial body. Yet, not two years after the 1997 handover, the NPC Standing Committee issued its first interpretation before application from any Hong Kong court.

Four more interpretations later, we now see that no interpretation, however wrong, can be challenged in a court of law. China’s power to interpret is free-standing and fettered by nothing.

When one compares Articles 158 and 159, a contrast emerges. China brandishes its powers of interpretation with reckless abandon; but a chain of checks and balances deny the people of Hong Kong their right to amend their own constitution. It is the kind of law that can only be wielded by the state against its subjects, never the subjects against the state – a constitution with Chinese characteristics.

Hong Kong has failed to make political progress over the past 21 years because we have been entrapped by a constitution we thought was ours.

As idealistic as they are, advocates for Hong Kong independence were right on one point: the Basic Law has failed democracy. It has failed the people of Hong Kong.

Ronald Chiu is a student at the Faculty of Law of the University of Hong Kong