The Promise of Autonomy

Yash Ghai
Apple Daily
May 3, 2004

The claims made for the almost unlimited role of the NPCSC in determining
the scope of Hong Kong’s autonomy and the pace of its constitutional
reforms must be tested against the promise of autonomy promised to Hong
Kong. The underlying principle of ‘one country, two systems’ is Hong
Kong’s autonomy (‘Hong Kong people ruling Hong Kong’). The two systems
are quite different, each very complex in its own way. Capitalism, depending
on private initiatives and confidence, and an intricate set of balances, is
the harder to manage. Since the Chinese government had no experience of
capitalism, it was assumed that Hong Kong would be left to manage its own
affairs. Deng Xiaoping said as early as 1984, ‘We should have faith in the
Chinese of Hong Kong, who are quite capable of administering their own
affairs’. This autonomy is recognised in various ways in the Basic Law.

The prospect of autonomy was strengthened when China agreed, in a reversal
of its earlier position, to negotiate with the United Kingdom on the future
of Hong Kong, and it agreed to a detailed specification of the systems and
autonomy in Hong Kong. The internationalisation of autonomy, grounded in a
binding treaty, has elsewhere served as its guarantee. In order to enable
the continuation of Hong Kong’s wide and varied treaty rights and
obligations and the membership of international organisations, China made
declarations to multi-lateral institutions and foreign states of the grant
of autonomy to Hong Kong. Through an Act of its Congress, the United States
made the observance by China of its obligations under the Sino-British Joint
Declaration a condition of its separate and favoured treatment of Hong Kong.


The settlement of the Hong Kong question was negotiated within a framework
which was originally formulated for China’s reunification of Taiwan. China,
realising that Taiwan, with its considerable resources and defence
capability, would not be an easy prize, and had consequently offered what it
believed was a generous package. Deng said, ‘The concept of “one country,
two systems” has been formulated according to China’s realities, and it
has attracted international attention. China has not only the Hong Kong
problem to tackle but the Taiwan problem. What is the solution to this
problem? Is it for socialism to swallow up Taiwan or for the “Three
People’s Principles’ preached by Taiwan to swallow up the mainland? The
answer is neither’ (ibid.). This remarkable realism and flexibility,
grounded in Article 31 of the then newly enacted Chinese Constitution,
certainly gave reason for optimism about Hong Kong’s autonomy, as a show
case for ‘one country, two systems’.

The Basic Law does indeed confer upon Hong Kong many indicia of
semi-sovereignty. It allows Hong Kong the right to determine its own
immigration policies and to issue its own passports. Hong Kong has its own
flag, currency and stamps. It has also, in the form of ‘the permanent
resident of Hong Kong’, its own semi-citizenship, to which are attached
important rights which are denied to other Chinese citizens. Its
availability to non-Chinese, in the recognition of Hong Kong’s
cosmopolitanism, is a remarkable acknowledgement of the identity and
distinctiveness of Hong Kong. Hong Kong is granted the common law, the use
of the English language, and a comprehensive set of rights and freedoms. It
is also granted very considerable powers of external affairs.
 
More than symbols, these provisions are the foundations of and supported by
an extraordinary range of substantive powers. They include almost total
control of the economy, monetary and tax affairs, transport (including
aviation and shipping), social policies, education, health, sports, and so
on. Only foreign and defence have been retained by the Central Authorities.

Hong Kong’s autonomy seemed to be bolstered by strong constitutional
guarantees. Realising that the second of the ‘two systems’ could not be
accommodated within PRC’s constitutional and political system, including
provisions for minority autonomy, Article 31, as a new General Principle,
was adopted as part of the 1984 Constitution to establish special
administrative regions outside the basic framework of the Constitution.
Article 31 is general and brief, as it was intended to be used for differing
circumstances of territories identified for reunification. It merely says
that the arrangements to be made by the NPC for a special region would be
specified ‘in the light of specific conditions’. It seems sufficient
authority for the proposition that when examining the constitutional status
and arrangements for a special administrative region, one turns primarily
not to the PRC Constitution but to the Basic Law enacted by the NPC. Support
for this approach is to be found in the Basic Law with its frequent
statements that the institutions and powers of Hong Kong, and its
relationship with the Central Authorities, are to be ‘in accordance with
the provisions of this Law’, meaning the Basic Law (arts. 2, 3, 6, 11, 12,
and so on).

Additional support is to be found in Article 11 which in its last paragraph
prescribes that ‘No law enacted by the legislature of the HKSAR shall
contravene’ the Basic Law. Even more dramatically, the proviso in Article
159, dealing with the NPC’s power to amend the Basic Law, says that ‘No
amendment to this Law shall contravene the established policies of the
People’s Republic of China regarding Hong Kong’-as formulated in the
Sino-British Joint Declaration.

The ‘one country, two systems’ rests therefore on a remarkable sharing and
diffusing of the internal sovereignty of the PRC (Ji Pengfei speech to the
NPC when introducing the draft Basic Law explicates clearly the reach of the
sovereignty of the Central Authorities over Hong Kong, necessary only to
maintain the ‘one country’, which leaves ample room for genuine and
effective autonomy). In an indirect way, Deng linked this experiment to a
recent international movement, in which autonomy has been claimed and
granted to solve specific problems of identity and self-government. He said,
‘The world faces the choice between peaceful and non-peaceful means of
settling disputes. One way or another, they must be solved. New problems
must be solved by new means. The successful settlement of the Hong Kong
question may provide useful elements for the solution of international
questions. Has any government in the history of the world pursued a policy
as generous as China?’ (June 1984).

 It is therefore not inappropriate that we should examine other autonomous
systems to distil the elementary principles of the successful exercise of
autonomy. The one fundamental and almost universal principle, even in
regions with powers substantively less than Hong Kong’s is that of fully
representative institutions in the autonomous region. But even more
fundamentally, Hong Kong’s very wide substantive autonomy cannot, for a
variety of reasons, be exercised without fully representative institutions.
What the Standing Committee’s interpretations and other decisions of the
last few days have done is to signal the absence of genuine autonomy and
Hong Kong’s total subordination to Central Authorities. This is not how the
promise of autonomy was originally understood.

The writer is Sir YK Pao Professor of Public Law, University of Hong Kong