Hong Kong Basic Law

Why does China take a hard line on Hong Kong? To spell out post-1997 status and quash false hopes

PUBLISHED : Thursday, 06 September, 2018, 7:01am
UPDATED : Thursday, 06 September, 2018, 7:00am

I refer to Professor Michael C. Davis’ opinion piece on August 16, asking: “China’s hard line on Hong Kong only undermines confidence in the city. So why do it?

The answer is obvious. A correct understanding of the legal and constitutional basis for the city’s present political existence is essential to build and maintain confidence. Conversely, constant misrepresentation of the issue only adds to the confusion and creates false expectations and unrealistic demands that ultimately undermine confidence in the stability of the present system. As a professor of law, Mr Michael Davis should have no dispute with this.

The relationship of the Sino-British Joint Declaration to Chinese policy towards post-1997 Hong Kong needs to be clarified. It is only a matter of “right and wrong”, not a matter of “hard and soft”.

There is no dispute that the Joint Declaration is an international treaty and binding on both sides. The issue is whether the obligations under the treaty have been already fulfilled by both sides, and whether the Joint Declaration forms the legal and constitutional basis of post-1997 Hong Kong.

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A correct understanding of these issues rests on the correct understanding of the constitutional and legal basis of the present political system in Hong Kong. The preservation of Hong Kong’s past system of life is purely a Chinese policy, implemented through its national law. It is not a result of the Joint Declaration.

The fact that the Chinese government made a solemn declaration to the international community strengthens the confidence in this policy in post-1997 Hong Kong: this is indisputable. But this does not entitle the UK, or any other foreign government, to a role in the day-to-day affairs of Hong Kong. Nor does it make the Joint Declaration a part of the constitutional instruments of Hong Kong.

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The 2014 white paper on Hong Kong just reasserted the Chinese sovereign position on Hong Kong. It is consistent with, not an erosion of, the past commitment. It is an attempt to correct some falsehoods, and statements by those such as Johannes Chan Man-mun – who continues to assert a misplaced role for the Joint Declaration as the constitutional basis of present-day Hong Kong.

As a legal scholar, Prof Davis can be of help if he can focus more on these legal and constitutional issues, rather than on the political implications of this discussion.

Shiu Sin Por, executive director, New Paradigm Foundation