Constitutionalism and Hong Kong’s Future

Michael C. Davis

Asia Society
Hong Kong One Year After Transition:
Business Opportunities and Policy Challenges
Asia Society Policy and Business Conference
Seattle, June15–16, 1998

I. Introduction

In the 1984 Sino-British Joint Declaration, the agreement returning Hong Kong to China, China sought to assure Hong Kong’s future. Employing such slogans as “one country, two systems;” “Hong Kong people ruling Hong Kong;” and “a high degree of autonomy;” the Joint Declaration promised Hong Kong liberal protection of human rights democracy and the rule of law. The conception of “one country, two systems” aimed to politically separate the mainland socialist system from the capitalist system in Hong Kong. With China’s economic reforms, however, this model has come to merely distinguish the authoritarian political system on the mainland from promised liberal democracy and the rule of law in Hong Kong. As such, this framework is loaded with tension and its mainland component comes with much less ideological justification than the original conceptualization.

After the handover, on a superficial level, things have not changed. Political demonstrations still occur, the press still operates freely and elections are held. But this is a sameness with a difference. One democrat likens the situation to a war where one side has seized the high ground but not yet fired a shot. There are telltale signs of China’s attempts to control political outcomes in Hong Kong that have fundamental constitutional implications and need to be carefully considered if China’s long-term objectives are to be achieved. While many good things are happening in Hong Kong, it is important in constitutional terms to consider where fundamental risks lie. In this brief analysis I will consider several constitutional threats to this community and the corresponding lines of defense. This analysis starts with a brief account of Hong Kong’s evolving constitutional order.

 

II. The Hong Kong Constitutional Order

The 1984 Joint Declaration promises Hong Kong a liberal constitutional government, offering what I consider the essential elements of liberal constitutionalism, including: democracy, human rights and the rule of law. Regarding democracy, it provides that the Legislature is to be chosen by elections and the Chief Executive by elections or consultation. On human rights, there are approximately sixteen liberal rights protected in the Joint Declaration, of which half relate to freedom of speech. Regarding the rule of law, it is specified that the courts are to be independent and final, the existing common law legal system maintained and that citizens can challenge the actions of the executive in the courts. The rule of law commitments are effectively a promise of constitutional judicial review, the central engine of liberal constitutional government. But this promised liberal constitutional government has always been under a degree of threat.

The Basic Law and subsequent policies have eroded these commitments and raised concerns. Democracy in Hong Kong is viewed as a worrisome threat to the authoritarian center and much of China’s Hong Kong policy aims at its containment. The Basic Law especially offers an elaborate formula for containing democracy, more generally, and democrats in particular. For the first Legislative Council elections after the handover this formula specifies the distribution of the sixty seats in the Legislative Council to include thirty functional constituency seats, ten Election Committee seats (six in 2000, none in 2004) and twenty directly elected geographical seats (24 in 2000 and 30 in 2004). While the possibility of full direct elections is held out for 2007, for this to occur there must be a two-thirds vote of approval in the Legislative Council. This is a very unlikely proposition, given the specified make-up of the Legislative Council. Under the Basic Law formula the Chief Executive is to be chosen by the same 800 member Election Committee that is involved in the Legislative Council elections. This body is, itself, chosen by functional constituency sectors. Direct election of the Chief Executive in 2007 again depends of the same two-thirds approval.

Any hope that democratic forces will be able to democratize the Legislative Council after getting their foot in the door is dashed by the restrictions on the powers of Legislative Council members to propose or amend bills or even amend the Basic Law. The submission of member bills, if expenditure or government policy is involved, requires Chief Executive approval. Amendment of government bills or ultimate legislative approval of members bills requires approval of two sectors of the Legislative Council. That is, approval must be voted by a majority of members among the thirty functional constituency members and by the majority of the other half of the Legislative Council, initially encompassing the members that are directly elected and those chosen by the Election Committee.

After the recent election showed wide democratic support, some members from the democratic camp suggested amendment of the Basic Law to allow for a faster pace of democratization. But, under Article 159 of the Basic Law, amendment of the Basic Law to change any of these electoral provisions would require approval of the National People’s Congress (NPC) Standing Committee in Beijing. Any local proposal to do so requires the approval of two-thirds of the local NPC delegates (who are chosen by a mainland appointed body) and two-thirds of the Legislative Council, as well as the Chief Executive.

Under the Basic Law formula, with liberal interpretation, there is the possibility of a substantially more democratic Legislative Council. This was true of the 1995 election under former Governor Chris Patten’s formula providing for substantially broader constituent bases for the functional constituencies and the Election Committee equivalent. But that electoral law was set aside due to China’s objections to the democratic character of the Patten formula.

A substantially more conservative model was enacted. The Chinese appointed post-handover “Provisional Legislature” enacted the electoral law for the May 24, 1998 election. This law substantially narrowed the constituent base for the ten functional seats that Patten’s formula had enlarged. It also set aside Patten’s use of elected district and regional boards to constitute the Election Committee, creating instead what appears to be guaranteed seats for the pro-China and business camps through an Election Committee based on functional sectors. In addition, under the new formula the twenty directly elected geographical constituency seats are now based on district based proportional representation. The result is that the democratic camp, with sixty percent of the vote, could get only nineteen of sixty seats in the recent election for Legislative Council.

When it comes to rights protection, the same penchants constraining opposition and controlling outcomes are evident. Basic Law requirements for laws on subversion and sedition (Art 23) and allowing mainland interference during times of “turmoil” (Art 18) are of concern. Of even more concern has been China’s hostility towards rights reforms, claiming in effect too much rights protection violates the Basic Law. The pre-handover laws that were set aside include more liberal provisions on public order, registration of societies and labor laws. The post hand-over replacement laws passed by the Provisional Legislature import the notion of national security into the public order and societies laws; reverse labor law protections, and reverse bill of rights amendments. So far the government has shown restraint, as demonstrations and public commentary continue as vigorously as they did before the handover. But there is increasing evidence that the police are taking a firmer hand. Various pro-China figures have also attacked rights protection for the local public broadcaster, RTHK. By seizing the high ground to exercise control the two governments and their supporters create a confrontational environment which is worrisome.

In regard to the rule of law, the good news is that constitutional judicial review of local laws has been accepted, though doubt lingers regarding mainland laws. The bad news is that the courts appear to take a conservative and solicitous posture toward the government. Will the local courts excessively limit their jurisdiction by avoiding “sensitive political issues” or “judicial legislation,” or by too readily agreeing with the government? So far the court has largely upheld the questionable laws enacted by the Provisional Legislature, first upholding the legality of the provisional body itself and then upholding its laws providing for much restricted entry of mainland born residence and restricting the burning of flags. There is also concern that the courts may too readily refer matters to the NPC under provisions requiring such referral in certain exceptional cases where matters of local-central relations or central authority are at issue. Furthermore, will prosecutorial authorities hesitate to prosecute Chinese organizations or pro-China figures. Some worried that such hesitation had occurred recently when the mainland New China News Agency was not prosecuted under privacy laws and again when a leading pro-China figure was only named as an unindicted co-conspirator in a leading case.

 

III. Fundamental Challenges to the Constitutional Order

Beyond the events of the moment we should consider the more fundamental and persistent challenges to the Hong Kong’s liberal capitalist constitutional system. The following three concerns are considered below: The emergence of a competing political theory, favoring economic without political liberty, as China promotes a kind of Singaporeanization of Hong Kong; The threat to the high degree of domestic autonomy Hong Kong requires to avoid encroachment of the mainland system; and the threat to the external autonomy important to Hong Kong’s international personality and effectiveness.

A. Singaporeanization

Taking up the first of these, Hong Kong is faced with the need to defend the promised liberal democratic community in the face of China’s and the Special Administrative Region (SAR) leaders’ seeming affinity for certain aspects of an authoritarian Singaporean type model. As noted above, with the evolution of the “one country, two systems” model from a socialist vs. capitalist dichotomy to a mere authoritarian dividing line, Chinese fear of democracy in Hong Kong has become paramount. This is evident in a wide range of policies, including, for example, the above noted promotion of rule by tycoon (75% of appointees to various legislative and advisory bodies) or pro-China business elite; the watering down of democracy, making it impossible for popular democrats to win; the promotion of national security concerns in post-handover laws on public order and societies and attacks on human rights reforms. The recent East Asian economic crisis raises further cause for concern about this emerging Hong Kong system.

The policy rhetoric of recent years has reinforced the perception that China is attempting to establish a form of soft authoritarian control in Hong Kong. Beginning with Chinese anxieties after Tiananmen that Hong Kong not be a “base of subversion;” the late transition period witnessed an endless chain of suggestive Chinese rhetoric, including: assertion that Hong Kong be an “economy city, not a political city;” characterizations of a mainland-Hong Kong “economic partnership” but likening the political relationship to that between a “parent and child”; earlier attacks on marches commemorating the 1989 democracy movement; Chinese officials at times arguing that Hong Kong must ban attacks on national leaders, “the spreading of rumors and lies”, and advocating Taiwan independence (though some of these themes are now moderated); frequent encouragement that people “think of duties rather than rights;” and the frequent invocation of Asian values.

The danger is that heavily pro-business forces in both the Legislative and Executive Councils will ride roughshod over other political, social and economic concerns. This is problematic at a time of economic downturn because wide scale public support and a democratic attitude on the part of government may be important to popular acceptance of restructuring and economic belt-tightening. There is evidence of considerable pro-China business elite influence in a range of post-handover policies. Labor interests, prior to the recent economic downturn, faced official calls for increased labor importation and have recently seen laws aimed to protect their interests crassly set aside.

There were earlier concerns that an increasingly restive Executive Council, made up largely of pro-business elite, might displace the traditional executive role of civil servants, though the government has seemed more cautious in this regard after publicity over this issue. Some media sources speculated that one executive counselor recently may have contributed to the speculative attacks on the Hong Kong dollar by suggesting the relaxation of the US dollar peg; another executive counselor was recently appointed to head the education commission raising speculation that a ministerial system was being instituted. With democratic forces posturing in the Legislative Council, the appointed Executive Council may become more assertive in assuming a role to lead pro-government political forces. There has also been calls for more government planning, especially evident in the setting up of a Commission on Strategic Development. Along with this business orientation the Chief Executive has emphasized that Hong Kong not be a base of subversion.

Without any indication, one is left to guess precisely what kind of Asian authoritarian model China has had in mind. The authoritarian developmental model in East Asia is usually typified by capitalist micro-planned economy with considerable government intervention to target specific industries and products for export. In my recent article I argue this Asian development model has no applicability to Hong Kong. I make two points: first, Hong Kong has not traditionally relied on this model-under Hong Kong’s laissez faire system government has provided macro-level infrastructural and regulatory support but has avoided micro-level interference; second, even those East Asian economies who have relied on such system have in recent years come to recognize the need for political and economic reform to better foster competition, representation of diverse interest, and avoidance of corruption. In the recent economic crisis in East Asia we have begun to see a dark side to the East Asian economic “miracle.” This is hardly an example for Hong Kong to follow.

B. Domestic Autonomy

Hong Kong’s second fundamental concern, in the face of China’s national authoritarian system relates to the adequacy of domestic autonomy. Here I find it useful to view Hong Kong’s late colonial autonomy in terms of a rather tripartite relationship between Britain, China and Hong Kong, which might be depicted by an inverted triangle with China and Britain occupying the two top vertices and Hong Kong the bottom. The axes between reflect the lines of communication and activity. In the 1980s all axes between all parties were active in the Basic Law drafting process and colonial rule. After the 1989 Tiananmen related crisis in Hong Kong China took an aggressive uncompromising posture and became isolated; The Hong Kong/Britain axis heated up, with pressure on Britain producing much of the pre-handover reform. In the late transition (1996–7) the British role decreased while China cultivated support through numerous appointments to its so-called “second stove.” At that stage China interfered in many aspects of Hong Kong’s development.

After the handover there is a danger that the tripartite model may persist as the shadow framework behind Hong Kong’s constitutional system, as an avenue for exercising leverage and influence. The current Hong Kong government may simply replace Britain on one vertex and Hong Kong’s civil society may take up the previous position occupied by Hong Kong in this paradigmatic structure. A primary concern under such framework will be the degree of Chinese interference in Hong Kong affairs. The measure of success of the “one country, two systems” formula will be the extent to which China stays out of Hong Kong affairs. In this sense having a system that fundamentally encourages influence along these various axes will raise concerns about interference and behind the scenes influence peddling. So far the mainland record appears good, but some speculate that the mainland government can simply avoid open interference while government circles in Hong Kong are occupied by pro-China appointees. Some worry that this honeymoon may cease with more dissident voices being admitted into the formal political arena by the recent election.

Interference by China harbors three dangers. The first relates to mainland officials. Chinese involvement in Hong Kong affairs might invite the very Hong Kong interference on the mainland that China seeks to avoid and may corrupt the Hong Kong constitutional structure, as political demands are channeled through mainland political organizations. The second danger relates to mainland commercial entities. If mainland companies in Hong Kong are allowed improper influence or stand above the law, the economy may be corrupted, undermining the Hong Kong advantage in the “one country, two systems” model. Local companies are already trying to curry favor with their mainland counterparts through cross-ownership. And there have been reports that there is sometimes pressure for analyst to proceed with caution in assessing and reporting on the financial condition of mainland companies, in order to avoid offending key mainland executives. The third concern relates to Hong Kong’s ability to deal with the East Asian economic crisis. In the face of a serious economic downturn, any perceptions that pro-China business interests are favored will undermine confidence in government policies. The crisis presents a need to engage all sectors of society in making and gaining support for economic restructuring policies. For this purpose liberal democratic institutions are important to economic success. In this vain, again it will be important that pro-China interests are not perceived to exercise improper influence.

C. International Autonomy

The third line of defense relates to Hong Kong’s external autonomy and the global process. Maintaining Hong Kong’s international personality and commitments is vital to its success. This is the external dimension of constitutionalism. Hong Kong’s external effectiveness can translate into internal effectiveness in Hong Kong’s dealings with China. At the same time the internal autonomy just discussed contributes to Hong Kong’s effectiveness as an international actor. It is important that Hong Kong remains a reliable international partner. This has so far remained true but there are dangers that should be monitored. The issue for any international actor dealing with Hong Kong, whether they be economic or political, is to ask whether they are really doing business with Hong Kong. The perception that there is a mainland shadow lurking behind transactions would severely undermine confidence in Hong Kong.

The current world order is one that should be accepting of a community like the Hong Kong Special Administrative Region. There has been a dramatic expansion of the inclusive component in the world official system and this system has proven increasingly receptive to a wide range of territorial actors. This expanded inclusive component relates to a wide range of subjects from international commerce and finance to human rights, the environment and use of force. This evolving state system means that sovereignty is less concerned with exclusivity and more concerned with participation in world processes of decision. At the same time that the state system has changed, a non-state global order has emerged. The many non-state global actors are likewise concerned with the avenues of power in the emerging inclusive order, addressing issues ranging from human rights and the environment to science and commerce. Their actions are often beyond the control of territorial actors. In regard to commerce John Ruggie speaks of the global process in terms of “transnational microeconomic links”. While states do not control the non-state global space, provision of the rule of law and human rights is increasingly important to the economic success of such communities.

China’s world view contradicts important aspects of the emerging world vision in three respects with implications for Hong Kong. China harbors elements of the 19th century view that sees the state as exclusive and frequently admonishes other not to meddle in its internal affairs—which it claims includes Hong Kong. China may also see other states as out to affirmatively contain it and worry that Hong Kong not be used by hostile foreign forces. Finally, China has not itself offered a favorable law-based venue for non-state global activity, rendering the maintenance of human rights and the rule of law in Hong Kong of long term strategic value. This has implications for Hong Kong’s value to China and for constitutional policy in Hong Kong. Hong Kong’s advantage as a competitive economy and a global financial center has depended on its favorable legal and human rights institutions—their loss would undermine Hong Kong’s reliability. If Hong Kong is deprived of its autonomy and its favorable competitive conditions of human rights and the rule of law it will cease to serve as China’s access channel to the global economy.

 

IV. Conclusion

With respect to Hong Kong, three prominent hazards and the corresponding lines of defense are addressed: (1) the attempted Singaporeanization of Hong Kong, with the attendant loss of liberty and rights, would likely lead to serious diminution in entrepreneurial effectiveness; (2) failure to respect Hong Kong’s autonomy within China and preserve its liberal constitutional order will lead to the integration of Hong Kong into China’s underdeveloped economy, with the attendant risk of corruption, loss of confidence and diminution of wealth; and (3) failure to respect Hong Kong’s autonomy in external affairs will deprive it of the ability to confidently represent its own interest in both formal international arenas and the global economic space.

 

Recent related articles written by Mr. Davis:

“The Price of Rights: Constitutionalism and East Asian Economic Development,” Human Rights Quarterly, Vol. 20, p.303 (1998).

“Constitutionalism and Political Culture: The Debate Over Human Rights and Asian Values,” Harvard Human Rights Journal, Vol. 11, Winter (1998).

“International Commitments to Keep: Hong Kong Beyond 1997,” World Affairs, Vol. 160/2, p.70 (1997).

“Human Rights and the Founding of the Hong Kong Special Administrative Region: A Framework for Analysis,” Columbia Journal of Transnational Law, Vol. 34, p. 301 (1996).