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Hong Kong's Basic Law: An American Perspective

Author: Jerome A. Cohen, Adjunct Senior Fellow for Asia Studies
April 28, 2000
China On-line

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Based on an April 1,2000 speech delivered at the International Symposium in Hong Kong to Commemorate the 10th Anniversary of the Promulgation of the HKSAR Basic Law

(4/28/2000)

I feel privileged to join the other speakers in exchanging ideas about the Basic Law with this distinguished audience. I have admired the efforts of the SAR Administration, the Legislative Council, the judiciary and the Hong Kong community to put flesh upon the bare bones of this unique legal document and am pleased to mark the tenth anniversary of its promulgation.

I. A Truly Impressive Beginning

Just three years ago, Washington and New York were on the verge of hysteria as they contemplated the impending handover of Hong Kong to the People's Republic of China. Despite the promises of the Basic Law, many American observers expressed concern that reversion to the Motherland might soon mean the obliteration of Hong Kong's way of life.

Today, by contrast, my countrymen are happy to note that, as Mark Twain might have put it, reports of Hong Kong's demise were greatly exaggerated. Indeed, as the years go by, the two annual reports on Hong Kong published by the U.S. Department of State — one on human rights and the other an overview required by the U.S.-Hong Kong Policy Act — make Americans increasingly confident of Hong Kong's enduring vitality and freedom, despite the persistence of significant challenges.

The fact is that human rights continue to be observed in Hong Kong to an impressive extent — thanks to the protections enshrined in the Basic Law as well as in the Bill of Rights Ordinance and the common law precedents of the colonial era. Arbitrary arrest and detention are not serious problems. Aberrations, such as those by overzealous investigators of corruption or by immigration officials, and abuses against prisoners are pounced upon by alert media, scholars, politicians and other civil libertarians. Trials are conducted by a skilled, honest and independent judiciary and are fair, open and tolerably efficient. Jury trials have been preserved despite the linguistic difficulties of administering them, and there has been considerable progress generally in making the legal system more readily understandable to the community. A good deal of the credit for these accomplishments must go to the large number of able and dynamic lawyers in the SAR, including those in public service and academic life as well as in private practice.

Speech continues to be refreshingly free and public debate vigorous. The media, while seeking to navigate between the Scylla of self-censorship and the Charybdis of sensationalism, are unrestrained by official censorship. The Court of Final Appeal has made a good start in treading through the minefield of issues requiring it to reconcile society's interest in free expression with other dominant values, and the law of libel and slander has not been twisted into an instrument for suppressing unpopular opinions or political opponents of those in power.

The Hong Kong Government has given strong support to freedom of assembly and association. Allowing such diverse activities as the massive memorials to the victims of June 4, 1989 and the recent convention of Falun Gong practitioners cannot be easy for the Executive Branch. The restraint demonstrated in this regard by the Central Government in Beijing must also be noted as evidence of its determination to make "One Country, Two Systems" more than a slogan. Similarly, the religious and academic freedoms enjoyed by local residents, their right to organize and operate labor unions and their freedom to leave and return to Hong Kong all testify to the reality of "two systems."

We must not take these achievements for granted. They would be substantial accomplishments for any new polity, not to mention one that finds itself in the especially sensitive political situation of Hong Kong. Moreover, they have occurred amid the whirlwind of the Asian financial crisis that unexpectedly struck just as the handover took place. Ironically, it has been the Asian financial crisis, and not the widely-feared "threat from the North," that has preoccupied the SAR. This proves "Cohen's First Law," which is that the dog you see coming down the street is seldom the one that bites you! Hong Kong's ability to weather this storm while respecting fundamental freedoms has demonstrated that a Chinese community can pursue economic well-being without curbing other human rights. Indeed, many believe that this initial chapter of SAR history offers further illustration that free expression can foster economic growth, social progress and other goals shared by the SAR and the Central Government.

II. The Need for Continuing Progress

Yet, Hong Kong cannot rest on its laurels. Much more needs to be done if "One Country, Two Systems" is to achieve its full promise. Allow me briefly to give you an agenda for progress as seen by an American conscious of the shortcomings of his own country's political, economic and social system, of which the Chinese Government recently reminded us in its welcome "White Paper" on American human rights practices. Hubris is always dangerous, particularly for the world's only superpower.

The principal concern of American observers of Hong Kong is the development of political democracy, starting with the selection of the SAR's most important official, the Chief Executive. Although the Basic Law states that its "ultimate aim is the selection of the Chief Executive by universal suffrage," under its current provisions the earliest occasion on which that could take place would be the election of 2007 and then only if the Law is amended.

Until then, at least in American eyes, the Chief Executive will continue to be chosen by a local oligarchy appointed by the Central Government, presumably "in accordance with the principle of gradual and orderly progress" set forth in the Basic Law. In light of the standard of living and the sophistication of the Hong Kong electorate and the direct election by universal suffrage of Taiwan's President since 1996, the only argument that makes the present arrangement understandable to Americans is that the situation was worse under colonial rule, where the Governor was simply appointed by London.

Americans have similar concerns about selection of the Legislative Council. Even for LegCo's third term beginning in 2004, only half of its sixty members will be chosen by geographical constituencies through direct elections, and the existing arrangements for such elections seem tilted to favor pro-Beijing candidates. The other thirty LegCo members will be returned by functional constituencies that, unless the franchise is re-expanded, will allow merely a fraction of the pre-handover voters to take part.

In this connection it is sometimes suggested that only those who pay income tax should have the right to vote in Hong Kong, an idea that many had thought worthy of oblivion decades, if not centuries, ago. Although the Basic Law does not enumerate all the duties of citizenship, membership in a political community implies many obligations, not solely the duty to pay taxes. In return for their obligations, in truly democratic systems, citizens therefore enjoy the right to vote in order to have a voice in how they will be governed. If, at present, only 40% of Hong Kong residents pay income tax, it may be wise, as a matter of good citizenship, for a much larger number to be called upon to share the tax burden, if only to a token extent. Yet, even if no change is made in the present tax regime, the functional constituency system should return to the broad election franchise that preceded the handover.

Of course, if representatives elected by the people have no power to influence government, the entire exercise becomes a farce, if not a fraud upon the people. This leads to another widely-held view among American observers — that the powers of LegCo are unduly circumscribed by the Basic Law, which prohibits members from introducing bills that "relate to public expenditure or political structure or the operation of government." It also requires the written consent of the Chief Executive "before bills relating to government policies are introduced" by members. Unfortunately, the Administration has adopted an expansive interpretation of this vague phrase by holding that it is applicable even to amendments suggested by private members to bills introduced by the government. Moreover, even if a legislator manages to overcome these hurdles to introducing a bill, applicable voting procedures require that such a bill be adopted by a majority of all functionally-elected members as well as a majority of all geographically-elected members!

Time does not permit me to discuss the many difficult legislative tasks that confront the Executive and LegCo, especially in the areas of civil liberties and labor rights. Allow me here to mention only the potentially most controversial topic — the need under Article 23 of the Basic Law to enact laws prohibiting "treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets" as well as activities of foreign political organizations. Because of the political and legal complexities involved and the desirability of careful comparative study before Hong Kong devises legislation to meet this challenge, the drafting process will inevitably take a considerable time. This is undoubtedly a good thing, since it will allow the SAR government to gather more experience and momentum before finally addressing issues that are certain to divide the community and further test Beijing's tolerance.

III. Judicial Independence and Its Corollary

Eventually, of course, it will be for Hong Kong's courts to interpret and apply this local legislation and to determine its consistency with the Basic Law. This may require the Court of Final Appeal again to decide whether the question of interpretation before it is one "concerning the relationship between the Central Authorities and the Region" and whether under Article 158 of the Basic Law that question must therefore be sent to Beijing for interpretation by the Standing Committee of the National People's Congress.

Here I feel compelled to say a word about the independence of the judiciary, even at the risk of reopening wounds that have only begun to heal. To be sure, the Hong Kong Government — and LegCo, the media, the legal profession and all other leading elements in the community — ought to foster popular respect for judicial independence. But the corollary to this principle cannot be ignored. The courts must earn that respect through their decisions, especially those decisions that unavoidably relate to the political process. Although the 1999 "right of abode" cases only constitute a portion of the Court of Final Appeal's work product to date and although the rest of the Court's work has been conducted with the competence traditionally associated with Hong Kong's judiciary, the Court did itself and the principle of judicial independence a disservice by its handling of the "right of abode" cases.

Its January 29, 1999 decision was unwisely provocative and precipitated the political crisis that led the Hong Kong Government to seek an interpretation of the Basic Law by the Standing Committee of the National People's Congress. From an American perspective of over two hundred years of federal constitutional adjudication, the Court of Final Appeal made the following mistakes: It unnecessarily and erroneously stated that it had the power to invalidate legislation enacted by the National People's Congress. When called upon to interpret a provision of the Basic Law that on its face appeared to be one "concerning the relationship between the Central Authorities and the Region," instead of referring the question to the NPC Standing Committee as required by Article 158, the Court created a new test for applying Article 158 that justified, at least in its eyes, its refusal to make the reference. Moreover, when deciding how to interpret two ambiguous provisions of the Basic Law relating to the "right of abode," it needlessly chose in each case the interpretation that was more likely to ignite community tensions and infuriate the Central Government. I am not saying that, because of anticipated political consequences, the Court should shun its duty to interpret the Basic Law as written. What I am saying is that, when the wording of the law permits two plausible interpretations, the Court should assume that the lawmaker intended the one less likely to stir political passions.

Yet the CFA's sequel "right of abode" decision of December 3 took the Court from one extreme to the other. In the December case, instead of again provoking the Central Government, it unnecessarily prostrated itself before Beijing. The case only required a determination that the NPC Standing Committee had the power to make the final interpretation of the Basic Law concerning provisions the Standing Committee deemed to concern "the relationship between the Central Authorities and the Region." Nevertheless, the CFA went out of its way also to decide that the Standing Committee had the power of final interpretation even regarding Basic Law provisions dealing with matters exclusively within Hong Kong's autonomy.

This second question is a matter of profound importance to the SAR's prospects for realizing "the high degree of autonomy" promised it by the Basic Law. That question should have been left to a future case that actually requires the CFA to decide the question. Fortunately, when such a case arises, in the common law tradition the Court will be able to limit its holding of December 3 to the facts that were then presented, if it determines, as it might, that matters plainly within Hong Kong's autonomy are not to be sent to the Standing Committee for final interpretation.

Is there a common thread between these two radically different 1999 decisions by the same Court of Final Appeal? I believe there is — it is a lack of caution, a preference for the bold statement over the modest decision. Yet the lesson of the United States Supreme Court, learned through more than one bitter experience, is that a high court that seeks respect and independence in the robust arena of a democratic polity should not decide more than it has to. The future should be left to the future.

IV. The NPC Standing Committee and the Basic Law Committee

This leads to the final item on my agenda for progress — the NPC Standing Committee itself and the Basic Law Committee to which it is required to look for advice prior to giving an interpretation of the Basic Law. In the context of deciding a concrete case, to Americans, even more than to the English, placing a legislative, political organ above the highest judicial institution in the interpretation process seems unusual, to say the least. Yet, if the Standing Committee is seen to observe fair procedures and to offer persuasive reasons for its interpretations, respect for its rulings may rise. The most favorable development one can hope for is for the Standing Committee to establish a practice of following the recommendations of the Basic Law Committee after the well-known experts of the BLC have thoroughly vetted an issue of interpretation and perhaps have even heard oral argument.

Unfortunately, because the Standing Committee's "right of abode" interpretation was made not in response to the anticipated reference by the Court of Final Appeal but in the highly politicized atmosphere of the Hong Kong Government's controversial request, the circumstances on that occasion were far from appropriate for testing the possibilities of the Basic Law Committee. The Standing Committee ought now to consider how best to take advantage of the opportunity presented by a CFA reference under Article 158. At a time when legislative committees in the PRC are beginning to play a more transparent and significant role, it is not out of the question for the BLC to develop into a credible player, an authoritative and increasingly respected de facto instrument of interpretation that confers more legitimacy on the Article 158 process than it currently enjoys. If the BLC is permitted to develop along these lines, it may boost the gradually increasing momentum to establish a constitutional committee of the NPC as a more legitimate instrument for interpreting the PRC Constitution itself.

V. The Broader Significance of the Basic Law

Now that the Basic Law has moved from words on paper to reality, its impact can be expected to extend far beyond Hong Kong-Beijing relations. Certainly the Dalai Lama ought to be exploring whether aspects of the Hong Kong arrangements might be adapted to assure his people appropriate autonomy, and the same might be said for the Muslim leaders of Xinjiang. Indeed, as China confronts one of the major challenges of its political reform in the 21st century — how to combine the advantages of a strong Central Government with those of a high degree of autonomy for all of its provincial governments — Hong Kong is the obvious starting point for study. It is a nice question how long China can remain the only continental-size country in the world that lacks some type of federal system.

More immediately to the point is the Basic Law's relevance to the Taiwan problem. The idea of "One Country, Two Systems", conceived as a device to lure Taiwan back to the Motherland, quickly became the solution to Hong Kong's future. In the meantime, Taiwan-Mainland relations were kept on an even keel by both sides' adherence to a nebulous "one China" formula. Now, however, the rush of events in Taiwan has fractured that formula, and a frantic search is on, in the United States as well as in this part of the world, for a new modus vivendi that will preserve the territorial integrity of China while also preserving the way of life of the people in Taiwan.

Since the March 18 election of Chen Shui-bian, the PRC should understand that even a more generous version of the Hong Kong "One Country, Two Systems" model holds little allure for the island. Taiwan wants to be treated not as the PRC's subordinate but as its equal. The PRC's recent responses claim that anything is negotiable with Taiwan so long as the principle of "One China" is resurrected, and Chen Shui-bian has repeatedly asserted that he is willing to discuss this topic. Moreover, although the details of the Hong Kong model are no longer of interest to Taiwan, the fact that the Basic Law has actually been implemented and respected by the Central Government inevitably confers greater credibility upon whatever future proposal Beijing suggests to Taiwan.

Most broadly, the Basic Law demonstrates that the Chinese leadership under Deng Xiaoping was able to articulate a bold and imaginative solution to the challenge of Hong Kong, successfully negotiate it in great detail and, above all, persuade Mainland China's political and military elites to support it, despite the remarkable concessions Beijing's proposal required of the PRC.

The Taiwan problem is more difficult than the return of Hong Kong was, and Deng Xiaoping is gone. Will his successors prove imaginative and flexible enough to come up with a new formula that will be attractive to Taiwan? And will they prove persuasive and strong enough to win support for such a proposal among today's political and military elites in Beijing? The precedent set by the Basic Law gives us at least some reason to hope that Chinese common sense and creativity will again prevail.


Jerome Cohen is a Senior Fellow with the Council On Foreign Relations, a Professor at New York University Law School, and a Partner with Paul, Weiss, Rifkind, Wharton & Garrison

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