Hong Kong’s Basic Law may be conflicting and confusing – but it’s still the best system for relations with China

For all its flaws, the Basic Law protects Hong Kong’s separate system and can continue to do so beyond 2047, provided work begins now to resolve some of the deep-rooted contradictions. This cannot happen without basic trust

Cliff Buddle

Published: 7:00am, 10 Apr 2020

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As Hong Kong battles to contain the coronavirus and the global death toll rises above 80,000, it is not surprising that Saturday’s 30th anniversary of the Basic Law’s promulgation was a subdued affair. Who cares about arcane legal technicalities at a time when the world is facing a life-or-death struggle?

But there is little that happens in Hong Kong which is not underpinned by the city’s de facto constitution. This includes the government’s response to the coronavirus. The powers it uses to impose quarantine, restrict travel and close businesses are subject to the protection of rights and freedoms provided by the Basic Law.

The multibillion-dollar Hong Kong relief measures to help those hit hard by the economic impact highlight the control the law gives to the city over its own finances and taxes.

When Hong Kong finally emerges from this traumatic time of anti-government protests and fight to contain the virus, efforts must focus on rebuilding confidence so the city can move forward. At the heart of Hong Kong’s problems lie issues arising from the Basic Law. But it will not be easy to resolve them.

This unique law has been the subject of fierce disputes since the drafting of it began in the mid-1980s. It provides the legal foundations for the “one country, two systems”, arrangements for when Hong Kong returned to China in 1997.

But the task of reconciling communist China with capitalist, colonial Hong Kong was not easy. The Basic Law, straddling competing interests and very different systems, was always going to be a source of contradictions, conflicts, compromises and confusion.

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

Even before the law was adopted by the National People’s Congress in Beijing on April 4, 1990, fights over issues such as universal suffrage, national security laws, and the power of Beijing to interpret the Basic Law had raged. The third and final version was not well received in the city at the time. And those contentious issues have still not been resolved, 23 years after the law came into force.

They are at the root of the protests which turned the city’s streets into a battleground for months and which will probably return once the threat of the virus eases.

But core parts of the high degree of autonomy given to Hong Kong under one country, two systems have proved successful. The city issues its own passports, enjoys free flow of capital, maintains its own currency and has its own relationship with foreign governments. Capitalism has flourished and the city’s way of life has continued. All of this is protected by the Basic Law.

The rule of law has also survived. The judiciary, despite growing pressure amid the city’s political divisions, has remained independent. Contrary to some predictions before the handover, the courts have been prepared to rule against the government. They have used the constitutional status of the Basic Law to protect freedoms it guarantees, including free speech, the right to live in Hong Kong, and freedom from discrimination.

If Hong Kong loses its freedoms, it will lose its trade status too

But there are also problems. The Basic Law declares universal suffrage to be the ultimate aim for the election of the chief executive and all legislators. This has been possible since 2007, but Hong Kong still does not have it. It is one of the five demands of the protesters and will remain a bone of contention in the city until it is introduced.

The political system, based on the colonial era, is outdated and insufficiently inclusive. It gives too much power to vested interests who often stand in the way of progressive policies. A more democratic election system would improve governance. But in these troubled times, it appears further away than ever.

On the other side of the coin is the Basic Law’s requirement, under Article 23, for new national security laws to be passed, including a law against subversion of the central government. Strong opposition in Hong Kong, driven by understandable fears that such laws would curb rights, has prevented this legislation from being passed. But the central government is growing increasingly impatient.

Pro-democracy protesters opposed to the introduction of national security laws for Hong Kong, National Day rally on October 1, 2018. Photo: AP

The Basic Law guarantees Hong Kong’s separate system. But it is vulnerable to change. There is no independent mechanism to fairly resolve disputes between the city and Beijing. Ultimately, differences are settled by Beijing, through its interpretations of the Basic Law.

This power has, thankfully, been used only five times. But it can be done at any time and, experience has shown, can be used to give the law a meaning which conflicts with what it actually says. This creates uncertainty and scope for Hong Kong’s autonomy to be eroded.

The success of one country, two systems therefore depends on restraint from the central government and an appreciation that the success of the Basic Law depends on Hong Kong’s high degree of autonomy existing in reality, not just on paper. It should resist any temptation to further reduce that autonomy.

Beijing’s latest salvo at Hong Kong’s courts is its most chilling yet

Sadly, a tightening of Beijing’s grip seems more likely in the current political climate. The new director of Beijing’s Liaison Office, Luo Huining, marked the Basic Law’s anniversary by arguing that Hong Kong has reached a critical point in its development which requires “comprehensive legal and enforcement mechanisms” to safeguard national security.

But, yet more laws and crackdowns are not the answer if the vicious cycle that has fuelled the divisions in Hong Kong is to be broken. The jailing of activists involved in the Occupy protests six years ago has not deterred people from protesting. It has, instead, fuelled concerns and played a part in sparking social unrest.

Luo said now is the time to resolve many deep-rooted problems. Certainly, those problems need to be settled. But that can only be done through the building of trust. That process must begin as soon as possible. It will require tolerance, restraint and understanding on both sides.

The Basic Law, for all its flaws, continues to guarantee Hong Kong’s separate system. There is no reason it should not continue to do so beyond 2047, when the 50-year guarantee of one country, two systems expires.

Winston Churchill famously referred to democracy as being the worst form of government except for all the others. The same may be said of the one country, two systems concept. It is riven with tensions and conflicts, but remains the best system for Hong Kong’s future.

Cliff Buddle is the Post’s editor of special projects

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