Why Hong Kong needs to start talking about 2047 now

Inkstone 發布於 2019年10月21日16:10

The status of the Hong Kong Special Administrative Region is set out in two slogans: "one country, two systems" and "50 years no change."

There seems to be an assumption that the two are linked, that nothing must change in the Hong Kong system for 50 years, but that after 2047, the capitalist system will be replaced by the socialist (communist) system.

This is assumed to mean the Basic Law will expire, Hong Kong will become just another city within China, with mainland Chinese laws applying and Hong Kong laws ceasing to apply. In my view, these assumptions are not justified by anything in the Basic Law or in the Chinese constitution.

On the contrary, the Basic Law contemplates that Hong Kong's system will develop in significant ways, does not say that communism will become the system of government, or that the Basic Law will expire in 2047, or that Hong Kong's laws, with all the rights and freedoms they enshrine, will cease to apply.

Some protesters say the Chinese government has failed to grant Hong Kong 'a high degree of autonomy.'

The only reference to 50 years in the Basic Law is in Article 5: "The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years."

The English translation seems to have a comma missing after "unchanged" and the first part of the statement is not limited as to time, but the intention was evidently to say that the socialist system would not apply for 50 years.

However, that does not mean communism will then take over from capitalism, that Hong Kong's special administrative laws will be replaced by mainland Chinese laws on all subjects, or that the Basic Law will expire.

There is no mention of 50 years in any of the decisions of the National People's Congress attached to the Basic Law.

There is a mention of it in the Sino-British Joint Declaration (which the Chinese government says is essentially a dead letter) Article 3 (12) says "The above-stated policies (as stipulated in the Basic Law) will remain unchanged for 50 years."

But again, that does not mean that other policies will take over or that they will involve undoing the Hong Kong system of law and administration or the Basic Law.

As noted above, Article 5 of the Basic Law says the capitalist system and way of life will remain unchanged until 2047. But there are other provisions that contemplate changes in the laws underpinning that system and way of life.

The Basic Law says Hong Kong's capitalist system and way of life will remain unchanged until 2047.

Article 8 says the laws shall be maintained "subject to any amendment by the legislature" of Hong Kong. Article 73 empowers the legislature to "enact, amend or repeal laws in accordance with the provisions of this Law and legal procedures."

So Hong Kong's legislature has the power to amend the laws relating to the system of government, and the Basic Law contemplates that changes will be made, particularly in the method of selection of the chief executive and the method for forming the Legislative Council.

On the selection of the chief executive, Article 45 of the Basic Law says: "The ultimate aim is the selection of the chief executive by universal suffrage upon nomination."

On the forming of the Legislative Council, Article 68 says: "The ultimate aim is the election of all members of the Legislative Council by universal suffrage."

Both articles refer to "the principle of gradual and orderly progress" and clearly contemplate that there will be further development of democracy in Hong Kong by 2047. There is no reason to suppose that whatever has by then been achieved is to be simply abolished at that date.

The protesters should not be asking the Hong Kong government to do things it has no power to do

In my view, what the protesters should be asking for is not just generalized "freedom" and "democracy," and certainly not separation or independence, as these are non-negotiable as far as the central government is concerned.

Politics, we are told, is "the art of the possible."

The questions that should be asked, through appropriate channels, are: What does the central government contemplate will happen to Hong Kong in 2047, how will it be governed, what will its laws and legal system be?

The protesters should not be asking the Hong Kong government to do things it has no power to do.

But they can properly urge the Hong Kong government to ask Beijing for a clear statement as to how it interprets Articles 45 and 68, and what it contemplates as being the legal and administrative system in Hong Kong after 2047.

If the answer is that the socialist system will apply, that does not mean existing rights and freedoms (as they will then have evolved) will be swept away. Beijing does accept the various international conventions on human rights, after all.

A float featuring the 'one country, two systems' policy went past Tiananmen Square during the National Day parade in Beijing on October 1.

Even if, as some lawyers assert, it means the common law will no longer apply, that does not mean Hong Kong's statute book will be done away with.

To those of us who are law drafters, it is the statute book that matters most as a source of law, and there is no reason in principle why that cannot remain in place under a socialist system and policies.

Indeed, China has adopted many features of the Hong Kong statute book to enhance its commercial status.

The protesters have achieved token success by having the Fugitive Offenders Bill withdrawn.

But their focus should be on much more significant questions, as I have indicated, and I hope they will stop the violence and start asking the right questions in the right quarters.

It is important for the temperature to be cooled, for informed legal discussions to take place, and for the people of this wonderful city to demonstrate that "one country, two systems" is a workable concept for the future, even after 2047.

John Wilson was a member of the Hong Kong government's law drafting division from 1983-1996, and of the Hong Kong SAR government from 2002-2004

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