Examining Hong Kong’s Basic Law: Is there Scope for Democratic Reform?

Mainland China’s ability to modify and interpret Hong Kong’s Basic Law threatens the future of the “one country, two systems” formula.

Hong Kong’s constitutional document, the Basic Law, which guides political process in the Chinese territory, was adopted by the seventh National People’s Congress (NPC) in 1990 and came into effect on 1 July 1997, when Great Britain handed Hong Kong over to mainland China under the “one country, two systems” formula. 

Under this framework, Hong Kong is permitted to exercise autonomy in its internal matters and have an independent judiciary as well as an independent legal system till 2047. Additionally, the territory’s “capitalist system of life” is protected by a number of autonomy features. However, the recent past has seen Beijing and the Chinese Communist Party (CCP) steadily increase their interference in Hong Kong’s domestic affairs. This political dispute is compounded by the fact that Hong Kong is slowly losing its unique position as the Asian financial centre to cities like Shanghai and Shenzhen, both in mainland China. The territory has become too expensive for its working-class population and there has been a steady stream of migrants coming in from the mainland, not least to benefit from the territory’s medicare and social security policies. Beijing has also been influencing local elections. While Hong Kong is supposed to have an independent media and permit religious freedom, both of which remain unavailable on the mainland, these spaces are being increasingly controlled by the communist party (Albert 2019).

Resistance to the Mainland Is Not New

Despite the scale of the current protests, the demand for democracy in Hong Kong is not a recent phenomenon. Since the 1980s, the territory has seen a number of small- and large-scale protests in favour of democratic reforms. While Great Britain and China signed the Joint Declaration in 1984 for the handover of Hong Kong, the 1989 Tiananmen Square Protests pushed Hong Kong to assert greater democratic space post-handover (BBC 2019). People regularly hold vigils and commemorations of the 1989 incident. The constant “homage” paid by the Hongkongese to the Tiananmen Square protests is perceived to be a major defiance by Beijing, which has banned any reference to the incident. 

In 2003, around 50,000 Hongkongese took to the streets against the passing of Article 23 of the Basic Law, which would have led to anti-subversion legislation. While this bill was subsequently shelved, Beijing is yet to give up on getting it passed. Since 2014, Hong Kong has seen a series of clashes with Beijing on issues of autonomy. Protests have been met with an increasing degree of violence and suppression. One of the major triggers for the 2014 protests was Beijing’s interference in Hong Kong’s democratic elections—the territory was slated to have direct elections for the post of Chief Executive (CE) in 2017.[1] However, Beijing announced that voters could only choose from a list of candidates pre-approved by Beijing. Such a suggestion was not acceptable to the people as it would amount to a mockery of the promised direct elections. For the CCP, this was a safety net to ensure that the candidate elected to the post of CE would remain pro-Beijing and would be ready to follow the diktat of the mainland, no matter the public sentiment. Since then, the question of Beijing’s constant interference has been a simmering issue within Hong Kong’s domestic political landscape. 

Understanding the Basic Law

Today, more than 20 years after the handover, Beijing remains reluctant to allow direct elections, a major idea in the Basic Law.[2] Rather, it is now clear that Beijing benefits from ambiguity in the wording of relevant sections of the law: 

Article 5 states: 

“The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region [HKSAR], and the previous capitalist system and way of life shall remain unchanged for 50 years.” 

Next, Article 45 stipulates the terms for selection of the CE, the highest representative of the HKSAR. 

“The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People's Government. The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.” 

The procedure of electing the CE remains heavily tilted in favour of a very select elite class[3] in Hong Kong, whereas protesters would prefer a “one person, one vote” formula, which only a direct election method can ensure. This is also why the recently held district council elections and the subsequent victory of pro-democracy candidates matters. One of the major reasons for Beijing to refuse direct elections is due to its fear of losing control over the political space. Most of the central and top leadership positions are held by pro-Beijing candidates, who have been highly instrumental in implementing the CCP’s agenda in Hong Kong.

Article 27 of the Basic Law also allows for independent media.

“Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.” 

However, this was not acceptable to the CCP. The media in Hong Kong has been highly critical of the mainland’s policies. In 2015, five book sellers from Hong Kong went missing. They all belonged to the publishing house Mighty Current, which had published extensive material on the Bo Xilai scandal[4] and were later reported to be in the custody of the mainland (South China Morning Post 2020). Such incidents have strengthened the debates surrounding the safety of people who are critical towards the communist party and show that Beijing is capable of doing nearly anything to safeguard its position of power vis-à-vis Hong Kong. 

Article 18 of the Basic Law also allows Beijing to use any measure if it feels that there is a threat to national unity. It states that, 

“In the event that the Standing Committee of the National People’s Congress decides to declare a state of war or, by reason of turmoil within the Hong Kong Special Administrative Region which endangers national unity or security and is beyond the control of the government of the Region, decides that the Region is in a state of emergency, the Central People’s Government may issue an order applying the relevant national laws in the Region.” 

Most damning, however, is Article 158:

“The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress.”  

With such a provision in place it is impossible for the Hong Kong government to attempt any form of modification to the existing structures. For any major changes to occur, Beijing has to approve of them. With such a caveat, the dream of increasing autonomy for the people of Hong Kong appears far-fetched and impossible to achieve.

The Current Protests and the Significance of Local Elections

The sociopolitical landscape of Hong Kong has been in turmoil for the last six years. In addition to the discontent stemming from Beijing’s tightening grip over political power, the deteriorating economic situation has also fuelled the protests. There has been a consistent rise in housing prices, reduction in  wages, and a rise in income inequalities (Ming 2019).

The year 2019 witnessed unprecedented protests due to the extradition bill approved by Carry Lam, the CE of the HKSAR. This bill,introduced in April 2019, allowed for criminals to be extradited to mainland China. A number of people argued that such a bill would be used to target the pro-democracy and anti-China voices in Hong Kong while also affecting the territory’s sociopolitical fabric. It would also provide the mainland with the authority to further interfere with legal and political matters in Hong Kong (Davidson 2019). 

In June 2019, an estimated 1 million people came out on the streets to demand the withdrawal of the extradition bill (BBC 2019a). The intensity of protests continued to grow over the months and as a consequence, on 4 September 2019, the bill was withdrawn (BBC 2019a). However, the protests had since adopted a number of other demands, and the withdrawal of the bill did not diminish the strength of the ongoing protests. Protestors demanded that the 12 June 2019 protests should not be termed as a riot, amnesty should be granted to those people arrested, an independent inquiry looking into the police brutality towards the protestors should be conducted, universal suffrage should be applicable at all levels of elections, and that Carry Lam should resign (BBC 2019a).

Despite the protests, the district council elections, scheduled for 24 November 2019, were conducted, with 71.6% of eligible voters voting. Pro-democracy candidates won 392 seats out of 452 seats (Yiu-ting 2019). Unsurprisingly, these results have given birth to a number of speculations regarding the future of the “one country, two systems” formula  and the future of the democratic movement in Hong Kong.
While district councils in Hong Kong are mainly responsible for basic daily amenities like bus routes and local parks, besides focussing on issues like cultural activities, a clean environment, and district fund management, they are the only directly elected representatives in Hong Kong (Tan 2019). In contrast, the CE is elected by a group of 1,200 people, of which only 117 come from this democratic camp. The results prove the Hongkongese’s rejection of Beijing and its policies, and can be perceived as a direct defiance of the notion of being a part of mainland China (Gunia 2019). 

The council election results also put the spotlight firmly on the communist party’s intentions for Hong Kong. Given the prevailing public sentiment, will Beijing even consider broadening democratic freedoms? At this juncture, the introduction of direct voting would only result in the election of more pro-democracy candidates, who would deter Beijing’s policy of controlling the political narrative in Hong Kong and of curtailing any budding criticism of the mainland. While Beijing would like to promote the narrative of a smooth and successful integration of Hong Kong with the mainland, its approach has been one of heavy handedness. Since the district council elections, Beijing has found new ways to curtail the smooth functioning of the city. However, the legislative council elections scheduled for September 2020 will provide a better understanding of the direction of the ongoing demands for democracy. In order to build and maintain a narrative of smooth integration, Beijing will have to be willing to indulge in quid pro quo, something it is not accustomed to when dealing with domestic challenges.

Taiwan and the ‘One China’ Principle 

The upsurge in Hong Kong’s pro-democracy movement is more closely linked to the developments in Taiwan than is commonly acknowledged. Taiwan’s current president, Tsai Ing-wen of the Democratic People’s Party (DPP), was first elected as president of Taiwan in 2016. The DPP is perceived to be a pro-independence party and is thus not favoured by Beijing. Since Ing-wen’s election in 2016, Beijing adopted numerous diplomatic and political tools in its arsenal to undermine Taiwan and Ing-wen’s position both domestically and in international fora. As a result, Taiwan has steadily lost diplomatic allies over the last few years. However, despite Beijing’s tactics of bullying, the Taiwanese electorate re-elected Ing-wen in January 2020.

The Taiwanese election results have given hope to the pro-democracy supporters in Hong Kong. However, to imagine that Beijing will stop interfering in the territory's domestic sociopolitical space is perhaps over-optimistic. Criticism and dissent are not acceptable to the CCP. 

National unity and the “One China Principle” are core issues of the communist party. Hong Kong, however, is already seen as a part of China under the “one country, two systems” formula. The handover of Hong Kong by Great Britain was a major achievement of the CCP and had helped boost the  party’s legitimacy. The handover strengthened nationalism debates within Chinese society and was perceived as righting the wrongs of  the century of humiliation.

If Hong Kong continues to demand freedom from interference by Beijing and more autonomy in its domestic elections, it may witness further restrictions on its freedoms. Since 1978, the basic tenet of the CCP has been reform and liberalisation of the economic sphere and command and control of the political sphere. Today, after more than 40 years of reform, mainland China is yet to witness any breakthrough in political reform.  Beijing expects other countries to acknowledge that there exists only one China. It especially expects countries that maintain diplomatic relations with mainland China to refuse to acknowledge Taiwan as an independent country, but rather as a part of the larger Chinese nation. In the last few years, China’s increasing economic strength and the financial clout has allowed it to be more assertive of the One China Principle and softly force foreign governments to toe its foreign policy line. Beijing proffers the one country, two systems formula for Taiwan as well, under what it deems to be certain future reunification. 

China’s authoritarianism stands exposed in Hong Kong and its assertiveness seriously damages its soft power. Its actions are a wake-up call to those in Taiwan who were once enamoured by Beijing’s call. The developments in Hong Kong, therefore, have global consequences for Beijing’s search of power and legitimacy.

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