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Is Hong Kong’s Basic Law standing firm at 30?

South China Morning Post

發布於 2020年04月04日03:04 • Gary Cheung gary.cheung@scmp.com
  • On April 4, 1990, China's legislature endorsed a mini-constitution for Hong Kong, five years in the making
  • Three decades later, with political tension on the rise, some say it needs amending - while others fear what those amendments might be
Martin Lee and other pro-democracy figures burn papers representing the Basic Law in February 1990, months before the mini-constitution came into force. Photo: SCMP Pictures
Martin Lee and other pro-democracy figures burn papers representing the Basic Law in February 1990, months before the mini-constitution came into force. Photo: SCMP Pictures

The Chinese philosopher Confucius, in the Analects, discussed how a man acquires wisdom and fortitude over the years, a process that may also be applicable to Hong Kong's Basic Law.

"At 30, I stood firm," he wrote. "At 40, I had no more doubts. At 50, I knew the mandate of Heaven."

Saturday marks the 30th anniversary of the promulgation of the city's mini-constitution. On April 4, 1990, the National People's Congress (NPC) endorsed the final version after a five-year drafting process.

At the age of 30, Hong Kong's Basic Law is still wrestling with pains.

Any proposal to amend the Basic Law would certainly trigger controversy in the societyTam Yiu-chung NPC Standing Committee member

While Beijing is unhappy with the city's failure to enact its own national security law to implement the document's Article 23, those Hongkongers expecting greater democracy have been left similarly disappointed.

Universal suffrage, promised by Beijing in the Basic Law, still eludes the city, and the long-running debate on how to achieve full democracy has been the major source of tension between Hong Kong and the central government.

Since the city returned to Chinese rule in 1997, the NPC Standing Committee has issued five interpretations of the Basic Law, in 1999, 2004, 2005, 2011 and 2016. The issues involved ranged from the chief executive's tenure and lawmakers' oaths of office, to the city's policy on state immunity.

In two years, the "one country, two systems" formula, under which Beijing promises Hong Kong a high degree of autonomy and certain freedoms not allowed on the mainland, will reach the halfway mark of its minimum 50-year period that ends in 2047.

Former Legislative Council president Jasper Tsang Yok-sing recently called for amendments to the Basic Law to keep abreast of changes in Hong Kong society. The pro-Beijing heavyweight also called for a thorough review of Beijing's implementation of the one country, two systems principle in the city.

Tsang suggested seven surviving Hong Kong drafters of the Basic Law forming a panel to recommend to Beijing which clauses should be amended. A community-wide consultation should be held in Hong Kong before the amendments go ahead, he said.

But two of the seven surviving Hong Kong drafters expressed reservations about amending the mini-constitution, while Hong Kong's first post-handover chief justice Andrew Li Kwok-nang believed it was too early to discuss the post-2047 future, saying Hong Kong had many pressing problems to solve.

Martin Lee Chu-ming, the founding chairman of the Democratic Party and one of 23 Hongkongers to serve on the 59-strong drafting committee, said it was more important for Beijing to respect the differences between the "two systems" and grant democracy to Hongkongers, than for it to amend the Basic Law.

"One country, two systems will have a brighter future if the current Beijing leadership adopts (former paramount leader Deng Xiaoping's) liberal and pragmatic approach towards Hong Kong," Lee said.

"The success of the formula hinges on whether Beijing honours its promise of universal suffrage."

Hong Kong returned from British to Chinese rule in 1997. Photo: Robert Ng
Hong Kong returned from British to Chinese rule in 1997. Photo: Robert Ng

But Lee, 81, noted that Beijing rejected the election of the chief executive and all lawmakers by universal suffrage in 2007 and 2008, and laid down a restrictive framework for electing the city's leader by "one man, one vote" in 2017.

In August 2014, the NPC Standing Committee ruled that while Hong Kong would be allowed to pick its chief executive by universal suffrage in 2017, voters could only choose from two or three candidates endorsed by the majority of a 1,200-strong nominating committee.

In June 2015, the Legislative Council rejected the Hong Kong government's proposal to carry out the 2017 election of the chief executive under Beijing's framework.

Hong Kong civil servants must learn Chinese constitution, Beijing experts say

Lee, who quit the Basic Law Drafting Committee in protest after the 1989 crackdown on pro-democracy protesters in Beijing, was not invited to attend an online seminar on Saturday to mark the 30th anniversary.

The seminar, scheduled to be conducted through webcast, was organised by Tsinghua University's Centre for Hong Kong and Macau Research and Peking University's Centre for Hong Kong and Macau Studies. Wang Hanbin, the 94-year-old former vice-chairman of the drafting committee and a former NPC vice-chairman, will deliver a speech.

Other speakers include former Hong Kong chief executive Leung Chun-ying, also a former secretary general of the Basic Law Consultative Committee, which in the 1980s canvassed city residents' opinions on the draft document.

Former Hong Kong leader Leung Chun-ying will also speak at Saturday's seminar. Photo: Winson Wong
Former Hong Kong leader Leung Chun-ying will also speak at Saturday's seminar. Photo: Winson Wong

Because of the coronavirus pandemic, the city government has postponed events to mark the anniversary.

Tam Yiu-chung, Lee's colleague on the drafting committee and currently Hong Kong's sole representative on the NPC Standing Committee, said he did not oppose amending the Basic Law if there was a genuine need.

"But any proposal to amend the Basic Law would certainly trigger controversy in the society," said Tam, who became the youngest member of the drafting committee when he was appointed at 35.

Lee said he was worried that, should amendments go ahead, Beijing would insert clauses to curb Hongkongers' freedoms, such as imposing a law enforcement mechanism for national security.

At a Communist Party meeting in October, Beijing called on Hong Kong to enact a national security law, and introduce mechanisms for enforcing it.

Tam stressed that the prerequisite for the successful implementation of one country, two systems was acceptance of "one country".

"Some people in Hong Kong only emphasised 'two systems' and there are growing calls for Hong Kong independence," Tam said.

Martin Lee believes the Basic Law acts as a canopy to insulate Hong Kong from mainland China. Photo: Jonathan Wong
Martin Lee believes the Basic Law acts as a canopy to insulate Hong Kong from mainland China. Photo: Jonathan Wong

Andrew Li, who was the city's top judge from 1997 to 2010, was adamant that the destiny of Hong Kong was and would forever be as part of China. "In the conduct of our affairs, the sovereignty of China must be fully respected. At the same time, we must preserve the core values that lie at the heart of our separate system," he told the Post.

However, Li admitted that the concept of one country, two systems had inherent tensions.

"In its implementation, the most challenging questions relate to the interface between the two systems. To resolve them, mutual trust between Beijing and Hong Kong is necessary," he said. "That is not in a satisfactory state at present."

Hong Kong government mulls Basic Law oath for civil servants

"It is too early to discuss our post-2047 future, especially as we have many problems to solve," Li said. "But this question cannot be avoided and will inevitably arise in the 2030s."

But a senior lawyer who played a part in the consultation on drafts of the Basic Law said the problem should be addressed earlier than 2030, "not more than five years from now, preferably even straight away".

"What is needed is for the Chinese leadership to reaffirm the principle and to announce unilaterally to the whole world that the one country, two systems principle will be extended for at least another 50 years," said the senior counsel, who declined to be named.

City leader Carrie Lam said
City leader Carrie Lam said

"It would show the ability of the Chinese leadership to rise above short-sighted concerns and demonstrate the self-confidence and magnanimity of our country," the senior counsel said.

In an article published in the Post on Saturday, Chief Executive Carrie Lam Cheng Yuet-ngor wrote: "In the 22 years since her return to the motherland, Hong Kong has weathered different challenges and, on the whole, the implementation of one country, two systems has been successful".

In the article, she added that that success "fully demonstrates that it is the best institutional arrangement to maintain Hong Kong's long-term prosperity and stability".

Lee noted that the text of the Basic Law highlighted its distinctive status from the country's constitution.

"When Deng Xiaoping came up with the concept of one country, two systems in the early 1980s, he wanted Hong Kong to lead China forward," Lee said.

Citing Article 5 of the Basic Law, which states that "the socialist system and policies shall not be practised in Hong Kong", Lee believes that the city's mini-constitution effectively served as a canopy to insulate Hong Kong from mainland China.

A senior legal source in Hong Kong said the Basic Law had largely worked since 1997, citing the maintenance of judicial independence and the common law system.

"The major conflicts arise from divergent views on political reform," the legal source said. "Hong Kong badly needs to build a broad-based narrative that we have to live with mainland China and refrain from adopting a confrontational and provocative attitude towards the mainland."

Copyright (c) 2020. South China Morning Post Publishers Ltd. All rights reserved.

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