The Hong Kong Basic Law and the Limits of Democratization Under 'One Country Two Systems'

• Author: Albert H.Y. Chen
• Position: Cheng Chan Lan Yue Professor of Constitutional Law, Faculty of Law, University of Hong Kong. This articles draws on the following works of mine: Albert H.Y. Chen, Development of Representative Government, LAW OF THE HONG KONG CONSTITUTION CH. 8 (2nd ed. 2015); Albert H.Y. Chen, The Law and Politics of the Struggle for Universal Suffrage in Hong...
• Pages: 69-85

The Hong Kong Basic Law and the Limits of

Democratization Under “One Country

Two Systems”

A

LBERT

H.Y. C

HEN

*

I. Introduction

My last contribution to this Journal, published in 1999, was about the first

constitutional crisis experienced by the Hong Kong Special Administrative

Region (HKSAR) after it was established in 1997.

1

Since then, the drama of

“One Country Two Systems” has continued to unfold. On July 1, 2003,

there was a march of an estimated half-million people in Hong Kong against

the proposed national security bill to implement Article 23 of the Hong

Kong Basic Law. In fall 2014, an “Occupy Central” or “Umbrella”

movement was launched to struggle for democratization in this Special

Administrative Region (SAR) of the People’s Republic of China (PRC). The

occupation of key business and government districts in Hong Kong

continued for more than two months, during which Hong Kong was in the

limelight of the global media. The participants in this movement claimed

that their demands were no more than the realization of what was promised

to the people of Hong Kong by the Basic Law, the “mini-constitution” of

the HKSAR, enacted by the National People’s Congress of the PRC in

1990. What does the Basic Law actually say about Hong Kong’s

democratization? How has Hong Kong’s political system evolved before

and after the making of the Basic Law? In the aftermath of the Occupy

movement, what are the prospects of democratization in the HKSAR? It is

the purpose of this article to explore these questions.

II. The Development of Hong Kong’s Political System: From

Colony to Special Administrative Region

The British colony of Hong Kong was created and subsequently expanded

by three treaties between the Qing Empire in China and the British Empire

* Cheng Chan Lan Yue Professor of Constitutional Law, Faculty of Law, University of

Hong Kong. This articles draws on the following works of mine: Albert H.Y. Chen,

Development of Representative Government, L

AW OF THE

H

ONG

K

ONG

C

ONSTITUTION CH

. 8

(2nd ed. 2015); Albert H.Y. Chen, The Law and Politics of the Struggle for Universal Suffrage in

Hong Kong, 2013-15, 3 A

SIAN

J.

OF

L. & S

OC

’

Y

189 (2016); Albert H.Y. Chen, Constitutions and

Values in Three Chinese Societies, in A

N

I

NQUIRY INTO THE

E

XISTENCE OF

G

LOBAL

V

ALUES

(Dennis Davis, Alan Richter & Cheryl Saunders eds., 2015).

1. Albert H.Y. Chen, Constitutional Crisis in Hong Kong: Congressional Supremacy and Judicial

Review, 33 I

NT

’

L

L

AW

. 1025 (1999).

THE INTERNATIONAL LAWYER

A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW

70 THE INTERNATIONAL LAWYER [VOL. 50, NO. 1

in the nineteenth century.

2

The last of the three treaties provided for a

ninety-nine-year lease by the Qing Dynasty to Britain of the “New

Territories” (north of Kowloon Peninsula and Hong Kong Island, which

were ceded to Britain by virtue of the first two treaties) in the midst of the

foreign powers’ “scramble for concessions in China” in 1898.

3

As the lease

would expire in 1997, British Prime Minister Margaret Thatcher raised the

question of Hong Kong’s post-1997 constitutional status before PRC leaders

when she visited Beijing in 1982. In September 1984, following almost two

years of arduous negotiations between the British and Chinese governments,

the Sino-British Joint Declaration on the Question of Hong Kong was

concluded, and it provided for the return of the Hong Kong colony to China

on July 1, 1997.

4

The PRC’s plan for the governance of Hong Kong after 1997 was based

on the concept of “One Country Two Systems” (OCTS). The OCTS

concept was developed by senior statesman Deng Xiaoping in the late 1970s,

originally for the purpose of achieving peaceful reunification with Taiwan.

5

In the early 1980s, the PRC decided to apply this concept to the recovery of

the British colony of Hong Kong and the Portuguese colony of Macau. In

the Sino-British Joint Declaration of 1984, the PRC made various

undertakings with regard to how Hong Kong would be governed as a Special

Administrative Region (SAR) of the PRC after 1997. The HKSAR would

enjoy a high degree of autonomy, with “Hong Kong people ruling Hong

Kong.”

6

Hong Kong would be allowed to retain its existing social and

economic systems. The existing laws of Hong Kong would remain basically

unchanged; civil liberties, human rights and private property rights would

continue to be respected and protected.

The Joint Declaration also provided that the PRC’s policies towards the

HKSAR as stated in the Joint Declaration would be stipulated in a Basic Law

of the HKSAR and would remain unchanged for fifty years. The National

People’s Congress of the PRC enacted such a Basic Law in 1990.

7

It came

into force on July 1, 1997, when the colony finally achieved reunification

with China and the HKSAR was formally established. The Basic Law is

sometimes called Hong Kong’s “mini-constitution”: it is a constitutional

2. On Hong Kong’s history, see G.B. E

NDACOTT

, A H

ISTORY OF

H

ONG

K

ONG

(2d ed.

1964); S

TEVE

T

SANG

, A M

ODERN

H

ISTORY OF

H

ONG

K

ONG

(2004); F

RANK

W

ELSH

, A

H

ISTORY OF

H

ONG

K

ONG

(1993).

3. See generally P

ETER

W

ESLEY

-S

MITH

, C

ONSTITUTIONAL AND

A

DMINISTRATIVE

L

AW

23-

30 (2d ed. 1994).

4. See generally S

TEVE

T

SANG

, H

ONG

K

ONG

: A

N

A

PPOINTMENT WITH

C

HINA

(1997).

5. See generally Albert H.Y. Chen, The Concept of “One Country, Two Systems” and Its

Application to Hong Kong, in U

NDERSTANDING

C

HINA

’

S

L

EGAL

S

YSTEM

: E

SSAYS IN

H

ONOR OF

J

EROME

A. C

OHEN

353 (C. Stephen Hsu ed., 2003).

6. Id.

7. See generally Y

ASH

G

HAI

, H

ONG

K

ONG

’

S

N

EW

C

ONSTITUTIONAL

O

RDER

: T

HE

R

ESUMPTION OF

C

HINESE

S

OVEREIGNTY AND THE

B

ASIC

L

AW

(2d ed. 1999).

THE INTERNATIONAL LAWYER

A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW