Overview
It is more than 21 years since British Hong Kong became the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China (PRC). Much has happened that is positive since 1997. At the same time there have been recurring political incidents and stand-offs which have produced a series of severe policy log-jams and bred anxiety among the people of Hong Kong. There is a belief that Hong Kong is “stuck” and unable to advance.
Could the HKSAR see a positive future within China? We recently published a short book, withAbbreviated Press in Hong Kong, entitled, No Third Person: Rewriting the Hong Kong Story, to address this question. We feel that there remains a need for a further, more thorough discussion about Hong Kong’s future. We are grateful to the IPP Review for enabling us to publish this extended discussion: Hong Kong in China – with the generous agreement of Abbreviated Press. (Sections within Hong Kong in China repeat text and arguments found in No Third Party.)
The last British Governor of Hong Kong, Chris Patten noted, in 1996, that “The world should want China to succeed as it continues its brave economic revolution.” We agreed with that view then and we agree with it today. In this work, serialized in three parts in the IPP Review, we explain why Hong Kong remains exceptionally well placed to continue to shape its own positive future, within China, just as it has done, with such remarkable success, in the past.
Part 1 of Hong Kong in China provides a general introduction of the historical background of Hong Kong seen from British and Chinese perspectives over the last two centuries. It also explains the constitutional and legal structure of Hong Kong’s reversion to Chinese sovereignty and considers how this regime has operated when placed under stress. Part 2 sets out Hong Kong’s economic fundamentals and also reviews the geo-political stresses affecting the Hong Kong – mainland relationship. Part 3 investigates how Hong Kong can get unstuck and – building on this – how Hong Kong can construct its new narrative – the story of Hong Kong in China.
- Introduction
A robust, well explained narrative can join the past and the future. Such stories can motivate a community to believe and to take action. A good story can even persuade others that someone or something is special and, even without having a direct stake in what happens, they may be convinced to wish those who are directly involved all the best in what they are trying to achieve.
Hong Kong had a good story in the run-up to 1997 that was created by the British. The colony’s indomitable people worked hard, and they might triumph even under illiberal Chinese rule because they had been well-tutored under a benign Britain, which ruled Hong Kong relying on a western form of authoritarian legality. Hong Kong people were cosmopolitan and free to do what they wanted, especially in the pursuit of making money under a capitalist environment that was protected by a common law-based legal system.
The People’s Republic of China had its own story about Hong Kong. Britain snatched it from a weak China in the 19th century and the reunification of Hong Kong with the motherland in 1997 signified the end of a long period of humiliation. Hong Kong would enjoy a very special status in China and it would be just as politically stable and economically prosperous as before because of China’s wise and pragmatic ‘one country, two systems’ policy.
The British version was what the international media focussed upon. Most believed Hong Kong and its people had the ingredients and conditions for success post-1997. China was modernising and with economic advancement, the Chinese would become more ‘capitalistic.’ Economic reform could lead to democratic change and China could well follow a ‘liberal democratic’ path, as western powers sought to bring it into the global fold. The Tiananmen crackdown in 1989 was a blip – the trend was for liberal democratic systems to win out in the end. Hong Kong’s freedoms would best be maintained and its yearning for democracy fulfilled when China itself became free and democratic in the longer term.
Forty years on from when China started its modernisation in the post-Mao Zedong era and 21 years after the reunification, the British version of the Hong Kong story no longer holds. Hong Kong people are not so sure about themselves and their future seems less bright. Others also seem to find Hong Kong less interesting. Colonial Hong Kong could hold attention because it was an anachronism – there was an edge to its entire existence. Once it became a part of China again, Hong Kong was interesting – especially to the West – if it thumbed its nose at Beijing. If it did not cause a political fuss, its lustre dimmed. Meanwhile, China still – especially following its remarkable rise – brings ‘yellow peril’ images to mind in the West.
Western sensibilities want to see a feisty Hong Kong that “stands up” to authoritarian Beijing – a tale of David and Goliath. This should not be how Hong Kong would wish to be seen. Hong Kong would lose out and no one would care. Lord Palmerston’s statement that there are no permanent friends or permanent enemies in geopolitics, only permanent interests, applies – Hong Kong should not allow itself to be pitched against its own national government.
Hong Kong has yet to create a new story that can inspire. The city and its people are stuck – they have no compelling narrative that joins the past and the future. Britain’s story about Hong Kong is over. Beijing’s story about Hong Kong is told through a legacy of trauma. Only Hong Kong can create its own story that can make sense of its past, explain the present and give a believable yet inspirational picture of the future that can command broad attention.
A good story becomes a recurring narrative to elicit positive responses of support and encouragement. A good story can generate and then benefit from constructive review too. It is for Hong Kong to make sense of its trials and tribulations to enable its own people and others to understand the amazing journey the protagonist is on. It should be a story with universal appeal that weaves in the uniqueness of the place, its people, their experiences and culture, and institutions – no longer in the simplistic context of ‘capitalism good’ and ‘socialism bad’ but against the backdrop of shifting global geopolitics in which China is a rising power, and western powers are questioning the global architecture they constructed post World War II.
- The Conventional Tale of British Hong Kong
Hong Kong has created one of the most successful societies on Earth.
Prince Charles
Hong Kong was famously described by Richard Hughes in his 1968 book as a “borrowed place” living on “borrowed time” The essence captured in the title of this book recognised that British Hong Kong was an anomaly in post-World War II geopolitics: a residual colonial outpost that one day may no longer exist.
Hong Kong Island and Kowloon were ceded to Britain by Qing dynasty China following the Opium Wars. A 99-year lease over the New Territories was subsequently granted to Britain as well. While colonialism fell out of fashion after World War II, and former colonies became independent, China made it clear in 1972 that would not be Hong Kong’s destiny. The question of Hong Kong would be “solved by peaceful negotiation when conditions are ripe.”
Colonial Hong Kong was an exceptionally interesting place where ‘East met West’: a freewheeling capitalist community on the doorstep of ‘Red China.’ The impact of the ‘West’ was felt everywhere – materialistic aspirations were very much a part of life across the city. Hong Kong had, by the 1970s, become the remaining key western outpost in the Far East. With its British connection, it served as an important western listening post covering the vast PRC which had closed itself off to the world during much of the Mao Zedong era.
Hong Kong was as colourful as communist China was dour. In this small enclave, of less than 3,000 square kilometres in size, wealth flourished adjacent to massive poverty across the border on the Chinese mainland. Hong Kong was the place to go to witness the economic success of a Chinese community living under a benevolent and efficient British administration, where people enjoyed British-style liberties under the rule of the common law. For the rest of the world, Hong Kong was the perfect place to do business. Hong Kong people supposedly did not care much about politics – they were all too busy making money. The non-political nature of Hong Kong was untrue. There was plenty of local politics – the colonial government had to deal with British commercial interests in Hong Kong, as well as the business interests of the Chinese. Community leaders had to be brought on side through appointments to government committees, including the local legislature, and given due recognition through awards and honours from the Queen.
The British knew they must think about the future of Hong Kong. The clock was ticking – the New Territories lease was due to expire on 30 June 1997. Governor Murray MacLehose visited Beijing in 1979 and met paramount leader Deng Xiaoping. He raised the question of what should be done about land-lease renewals and modifications in the New Territories. That meeting may be said to have ignited Beijing’s deliberation about the future of Hong Kong, eventually leading to a decision to take Hong Kong back.
After rounds of negotiations, an agreement – the Sino-British Joint Declaration – was reached in 1984 to restore the whole of British Hong Kong to China upon the expiry of the New Territories lease. China committed to a policy of ‘one country, two systems’ under which Hong Kong would enjoy ‘a high degree of autonomy’ in its day-to-day affairs. The Sino-British Joint Declaration was touted as the best deal possible. The British wanted world opinion to be on their side – Whitehall’s narrative was that Britain had done everything possible to secure a robust post-1997 agreement for Hong Kong and that it would do everything possible to prepare Hong Kong for the transition. The treaty included references to elections. The British government of the day, led by Margaret Thatcher, felt this focus was needed to secure parliamentary approval for it to sign the agreement with China.
The Hong Kong story of this key period was that this jewel – crafted by the British for over 150 years with the crucial help of its remarkably diligent population – was being handed back to communist China, a comparatively backward country in economic terms. In 1984, China’s per capita GDP was less than 5% of that in Hong Kong. Hong Kong punched way above its weight measured by international recognition because of the magic formula of combining supposedly non-political, hardworking Chinese people with efficient British administration.
There was understandably a great deal of anxiety in Hong Kong about whether things would truly work out. Many people had negative experience of communist China, as they had escaped from the mainland at various times since 1949 to find refuge in British Hong Kong. Hundreds of thousands of people – mainly people with means and professional qualifications – emigrated, especially after the Tiananmen crackdown in 1989. They mainly relocated to English-speaking countries, such as Australia, Canada and the United States, with traditions of taking emigrants.
The Hong Kong story was in fact the perfect allegory of the larger geopolitical clash between ‘capitalism vs. communism,’ ‘democracy vs. authoritarianism,’ and ‘freedom vs. control.’ Even though colonialism was outdated, through the lens of the West, the British were ‘benevolent’ rulers while the Chinese were ‘autocratic’ and the unappetising communist system ‘dictatorial.’ At the time, capitalism combined with liberal democracy was seen to offer the most successful model of economic and geopolitical success.
The people of Hong Kong had to have confidence that things could work out and ‘one country, two systems’ was the only thing that gave it a chance because China promised that Hong Kong could continue much as it had under the British. Indeed, Chinese leaders were not blind to the fact that Hong Kong was much more advanced in socio-economic terms than the mainland; and that enabling a second system to exist within ‘one country’ was a pragmatic solution to win the hearts and minds of Hong Kong people. Chinese leaders had to make post-1997 Hong Kong a success to show they could do as well as the British. The international community wished Hong Kong well but there was a sizeable measure of scepticism in the air. After all, the China of the 1980s was just beginning to modernise and there was no guarantee that its effort would succeed. For many years, Hong Kong captured significant world attention as its transition to Chinese rule progressed.
Hong Kong’s colonial context
The experience of the West within the non-Western parts of the world was notably shaped by the direct experience of Western empire building. This immense growth in imperialism in the 19th century, especially, saw these industrialising powers colonising vast tracts of the world to secure extended territory and new natural resources. Britain was a most successful coloniser. It amassed many colonies, including Hong Kong, and ruled them for a long time.
Britain’s interest in land at the southern tip of China was to use it as a foothold to expand trade. Article III of the Treaty of Nanking, which ceded Hong Kong Island in 1842, was explicit about Hong Kong’s convenience for British traders to “careen and refit their ships and keep stores for that purpose.” The governing institutions established there were to facilitate British commercial activities. Commercial efficiency required the coloniser to make English the official language, build new physical infrastructure, establish a legal system the British were familiar with, create a policing system to enforce colonial rule, enable a ‘free’ English press to report on commercial information, and to set-up a civil service to manage colonial affairs. Much of the administrative work was done by English-educated locals but policy-making rested with British officials. Along with the colonisers came Christian missionaries to set-up schools to educate and convert the natives, as well as to teach English so that the locals could serve within and help with the growth of the very profitable colonial enterprise.
Colonies were there to contribute to British wealth and power, but administration was costly. It was best that administering them did not impose a burden on the British treasury. Colonial administration should be self-financing. In the case of Hong Kong, British ingenuity created a remarkable land-based revenue system which acted very much like a tax on land – though it proved to be far more efficient and revenue-positive than a traditional land tax.
The early colonisers declared that all land belonged to the Crown and would only be sold on a leasehold basis. There were two exceptions – the land that St. John’s Cathedral rests on, and the former Taikoo dockyards in North Point, once operated by a British trading house. Apart from these instances, all land was granted, on payment of substantial up-front premiums, on long-leasehold terms. Requests for change of usage came swiftly as the colonial economy grew rapidly. To secure approval for each such change, a further, large upfront fee had to be paid. This arrangement ensured access to substantial regular income for the government (public revenues were eventually boosted still further from around 1880 by considerable opium-related revenue payments). This land-related revenue system thrived. It still operates today. It continues to underpin Hong Kong’s simple, low tax, conventional revenue regime.
The Chinese elites – many of whom were trading partners of the British – were expected to contribute to caring for the poor in the general community. Thus, the wealthy elites formed charities, such as the Tung Wah Hospital Group, to provide services for the Chinese population. For the most part, the social lives of the British and the Chinese remained quite separate during much of the colonial era. Only a small group of westernised Chinese elites mixed socially with the British.
Colonialism was never meant to be a fair and just system for all. Locals were subjugated – and the colonisers were always concerned about latent nationalist tendencies. Hong Kong was no different. The fall of the Qing dynasty in China left a political vacuum. The Republican Era (1912-1949) was a period of unstable politics during which the Chinese Communist Party (CCP) was born in 1921 and two world wars were fought. The Chinese Civil War, won by the CCP in 1949, brought hope for a new China initially. The losing side – the Kuomintang (KMT, or Nationalists) – moved to Taiwan. The two sides continued to battle on the international stage for recognition. In 1971, the People’s Republic replaced the Republic of China (on Taiwan) at the United Nations. Throughout this era, the British ensured Hong Kong could not be used by either side as an arena for their feud. The British had tough security laws to nip trouble in the bud.
It was just as well that the CCP was willing to let the British keep Hong Kong after it took power in China in 1949. Nevertheless, violence seeped over to Hong Kong in 1967 during the Cultural Revolution. The disruptions shocked Hong Kong to the core. The locals, many of whom left the mainland after the CCP assumed power in 1949, preferred the British – the devil with a track record – to the communists, who had implemented collectivisation and harshly punished ‘rightists’ in the 1950s. Continuing into the 1970s, ‘Red China’ remained poor, backward and oppressive.
The Cultural Revolution gave the British a chance to bolster its rule in Hong Kong. Coupled with rising economies in America and Europe, Hong Kong looked west and focused on producing consumer products for export. The ‘Made in Hong Kong’ label for a wide variety of things imprinted the colony on the minds of western consumers for a generation.
III. China’s Legacy of Trauma
I am in dread of the judgments of God upon England for our national iniquity towards China.
William Gladstone, 19th century British prime minister
China’s concern about governing stems from its very long history. Most dynasties collapsed because of concurrent domestic rebellion and foreign invasion. The experience of the 19th and 20th centuries are still fresh in the minds of Chinese leaders today and affects their perspective of the world, especially how they look at the West in relation to China. There were several moments in the modern era that were so defining that they continue to drive China to become economically strong and militarily ready, so it cannot be bullied and taken advantage of again. And always, leaders feel they must watch out for internal problems and be tough to maintain domestic stability.
Semi-colony and unequal treaties
The history of the modern era, as told by the Chinese, starts with drug trafficking that led to the First Opium War (1839-42). In The Opium War: Drugs, Dreams and the Making Of Modern China, historian Julia Lovell wrote that this was the “traumatic inauguration of the country’s modern history.” The birth of British Hong Kong was the very first blow.
From the 1750s to the 1780s, Britain and other European governments ran increasingly larger trade deficits with China because their people had an immense hunger for Chinese tea, porcelain and silk. The British were keen to reduce the deficit and buccaneering merchants begun foisting opium on the Chinese. While the merchants made a lot of money, it was the British government that amassed the greater part of the profits because its agents in Asia controlled opium production in India. By the early 1800s, the opium trade had grown to an extent that the deficits started to reverse.
Opium smoking had a terrible addictive effect on the Chinese population. In 1839, the Qing authorities banned its sale and demanded the surrender of stocks, causing complaints among British and other western traders. They wanted free trade, including in opium, and used trumped-up atrocities to egg the British government on to protect their countrymen and defend national honour.
In June 1839, China imposed a trade embargo on Britain demanding that it stop opium trading. The Qing authorities confiscated huge quantities of the drug and destroyed it publicly. Britain’s response was to amass expeditionary forces for a punch-up, the first of which arrived in China the following year. Many battles were fought between the Chinese and British up-and-down China’s coast. The final battle ended in 1842 after the British occupied Shanghai and sailed up the Yangtze River, pushing into the interior, threatening Nanjing.
The battles were mostly one-sided. Chinese defences, weaponry, organisation and training of troops could not match British capabilities. Julia Lovell noted contemporary accounts of the heavy losses suffered by the Chinese – “murder,” “bodies of the slain … found literally three and four deep,” and the sea “blackened with corpses.” Defeat marked the start of China’s ‘Century of Humiliation.’ The infamous Treaty of Nanking signed in 1842 was the result of ‘gunboat diplomacy’: heavy reparations in silver had to be paid, five ports were forced open for trade, tariffs were abolished, and westerners were exempted from Chinese law in the treaty ports. The British also grabbed Hong Kong Island and made it a free port.
To demand better trading terms still, Britain and France waged and won the Second Opium War against China (1856-60). Apart from battles near Tianjin, the magnificent Old Summer Palace in Beijing was pillaged and burnt – leaving yet another deep wound in the Chinese psyche. As well as paying heavy war reparations in silver, China was forced to grant more trading rights still to the Western powers, legalise the opium trade, and cede Kowloon to Britain. Predatory foreign powers continued to make land grabs in China. The British did not want to be left out and in 1989 they extracted a 99-year lease of the New Territories from the waning Qing government. The period after 1842 – during which various treaties and conventions that ceded land to the Western powers and gave foreigners extraterritorial privileges – is regarded by the Chinese people and the CCP as an era when China “degenerated” from an independent country into a “semi-colony.”
Treaty of Versailles – cheated again
The Qing dynasty fell in 1911. China embraced republicanism. During World War I, China sent over 140,000 non-combatant labourers to the front lines to dig trenches, as well as to work for the allies on the railways and in ports and arms factories. They provided support to soldiers fighting on the front lines and even helped on submarines. Many of the labourers died or were injured from air raids and bombardments.
China hoped that their positive contribution during the war would be recognised at the Paris Peace Conference by the victorious powers in 1919. The young and fragile Chinese republic wanted more than anything to take back the German colony at Jiaozhou Bay, created in 1898, which included the settlement at Qingdao, in Shandong Province – since Germany lost the war. (Shandong Province had also become a German sphere of influence.) Instead, Japan was given possession of this territory in Shandong and the British took over Germany’s other colonies in China under the Treaty of Versailles. The Western powers were concerned that if they returned the German colony in Shandong to China it could bring a whole host of territorial claims into question, thereby opening a hornet’s nest for imperialists. The Western powers were much more concerned about their interests than being fair to China. The Chinese delegates in Paris were so angry that they refused to sign the treaty.
China felt cheated, betrayed and bullied by the key Western powers (Britain, France and the United States). What happened in Paris triggered the May Fourth Movement in China – students and intellectuals were bitterly disappointed and called for national renewal so that China would not be humiliated again. The Chinese believed they must find their own way and solutions to strengthen and transform the nation – a sense of nationalism swelled.
The path less travelled
Before the fall of the Qing dynasty, China had been invaded and broken up by rampaging colonial powers, which included Japan. Unfair treaties were forced on China at gunpoint. Foreign control did not end with the demise of the Qing. The republican era was a mix of contending regional warlords and alien powers jockeying for advantage in a fragmented China. The country was a political wreck and its people longed for peace and restoration of their dignity. The Chinese people suffered enormously.
It was not lost on many that the Russian Revolution of 1917 ended the imperial era in Russia and gave birth to the new Soviet Union. Li Dazhao, the librarian of Peking University, was inspired by Marxism and thought it provided a model for China’s future. He noted that:
On all sides one sees the victorious banners of Bolshevism and everywhere one hears the victorious songs of Bolshevism. Everyone says that the bells are ringing! The dawn of freedom is breaking! Just take a look at the world of the future, it is sure to be the world of red flags!
Li inspired many young intellectuals, including his library clerk, Mao Zedong. They and a handful of others started the Chinese Communist Party in 1921. China went through many more trials and tribulations, including World War II and fighting Japan, before the CCP won the civil war and became the ruling party in 1949. The CCP’s paramount priority was to protect the brittle People’s Republic. All that China had experienced in its past showed Chinese leaders that statehood is fragile and cannot be taken granted even in peace times.
Mao Zedong changed the trajectory of the nation. It was under his leadership that the CCP won the civil war, a fragmented China was consolidated, and the fledgling state safeguarded. Hence, official-speak still credits Mao with being “70% good” despite colossal, destructive wrongs visited upon China during the Great Leap Forward, as well as the Cultural Revolution that destroyed so much of what had been rebuilt since 1949.
Maoist China also did not forget Hong Kong. China made it clear at the United Nations in 1972 that Hong Kong and Macao were Chinese territories occupied by British and Portuguese governments respectively and that questions related to each were “matters entirely within the sovereignty of China.” It was “China’s consistent position” that matters should be “solved by peaceful negotiations when conditions are ripe” and post-colonial transitions were not for the United Nations to discuss. The British acquiesced, and no one raised a fuss at the United Nations.
With the death of Mao Zedong in 1976, China embarked on new reform policies that since the 1980s, have put the country on a steady development path. Today, it is the second largest economy in the world, after the United States. It is building up a modern military, and it engages in active international diplomacy. Despite the passage of time, the experience of colonialism and subjugation remain relevant to understand many problems and dangers today. It created a global hierarchy of economic, physical and cultural power, and that impact endures. The memory of western colonialism remains a live political factor in many former colonies.
Rejuvenation and the Chinese Dream
Chinese leaders today are still on the journey to build a strong nation so that China cannot be pushed around. Xi Jinping’s policy of national rejuvenation and achieving The Chinese Dreamby 2050 has its roots in the past. Trade and the opening-up the Chinese market remain major issues between China and the West. China’s pace and magnitude of growth have each become a source of fear for Western powers. Securing the nation from internal instability and external meddling continue to be the overarching concern in Beijing.
- Settling the Hong Kong Question
When I went to Hong Kong, I knew at once that I wanted to write a story set there.
Paul Theroux
The question of Hong Kong was settled in 1984 with the Sino-British Joint Declaration, a treaty between China and Britain, under which Britain agreed to restore the whole of British Hong Kong to China on 1 July 1997. In resuming sovereignty, China established the HKSAR.
The Basic Law is a comprehensive document establishing Hong Kong’s post-1997 constitutional framework. It provides enormous leg-room to manoeuvre, both domestically and in ‘external affairs.’ It confers a degree of autonomy and freedoms on Hong Kong that other regions in mainland China can scarcely dream of.
Hong Kong’s constitutional privileges are to be treasured and defended but Hong Kong should not cast doubt on its own ability to navigate the challenges of operating a much more liberal system within ‘one country’ that also has great sensitivities over national unity and territorial integrity. There is a fine line to tread for Hong Kong.
Foreign and domestic policies
The victorious CCP did not take Hong Kong back from Britain after 1949 because it could arouse opposition from the West and become an excuse for intervention. The question of Hong Kong was complicated because it affected both foreign and domestic affairs and thus had to be handled sensitively. Hong Kong had to be seen against China’s overall strategy to deal with the western powers. The CCP would make full use of Hong Kong during the earlier years of the People’s Republic because:
… this is advantageous to us … Hong Kong should be converted as a useful port to our economy … In the course of our socialist building, Hong Kong could become an operation base for us to establish overseas economic connections, and through Hong Kong we could attract foreign investment and foreign exchange.
In 1955, Hong Kong’s then governor, Alexander Grantham, paid an unofficial visit to Beijing and was warned that Hong Kong must not be used as an anti-communist base, and that any activity which undermined China had to be prevented. The British were always careful about that. Hong Kong remained in British hands because it suited Beijing. British Hong Kong had indispensable value as a primary trade and finance conduit for China. It remains Beijing’s hope for Hong Kong today that it will assist in China’s modernisation and rejuvenation through its many ‘second system’ capabilities – and be loyal to ‘one country.’
‘One country, two systems’ – the political theory
In taking back Hong Kong, China nevertheless distinguished asserting sovereignty from deciding on how the proposed new HKSAR could best be administered. The architect of ‘one country, two systems,’ Deng Xiaoping, who succeeded Mao Zedong as paramount leader, believed this approach would help to solve a difficult territorial problem. He credited the innovation to ‘Marxist dialectical thinking and historical materialism’ or, more simply, to ‘seeking truth from facts.’
Deng Xiaoping felt people in Hong Kong would accept Chinese rule if their socio-economic interests, including their liberal cosmopolitanism, were protected. He believed China was big enough to enable Hong Kong to be administered under another system that would maintain its economic success – that was what the Joint Declaration and the Basic Law sought to do. A prominent symbol of sovereignty, the People’s Liberation Army (PLA), would be stationed there not to meddle in domestic affairs but to defend the country if necessary.
It should not be lost on anyone that the Sino-British Joint Declaration’s first substantive paragraph states that recovering Hong Kong is “the common aspiration of the entire Chinese people,” and that it is China’s policy that enables Hong Kong to enjoy a ‘high degree of autonomy’ on many fronts. The preeminent statement is that China upholds “national unity and territorial integrity” and that is followed by Hong Kong being “directly under the authority of the Central People’s Government of the People’s Republic of China.”
As far as Beijing is concerned, the HKSAR is a creation of Chinese policy: Beijing has committed to that policy for at least 50 years up until 2047 to resolve the historical question of Hong Kong on a pragmatic basis; and the national government has direct jurisdiction over Hong Kong. Beijing felt it had to re-emphasise this final key point in 2014 with a White Paper on the ‘one country, two systems’ policy. As it was published in seven languages, it was also aimed at an international audience.
Operating ‘one country, two systems’
On 1 July 1997, Hong Kong became the HKSAR within the People’s Republic. Article 31 of the 1982 Chinese Constitution allows special administrative regions to be created but it is the Basic Law, passed by the National People’s Congress in 1990, that gave legal effect to how the HKSAR would function. Having a separate sub-constitutional document – a mini-constitution – to spell out the conspicuous political-legal differences between the mainland, party-state, civil law system and the Hong Kong common law system is a practical way for China to accommodate a different system within the country.
The Basic Law provides a striking level of autonomy to Hong Kong that no other part of China has except for Macao, which is also a special administrative region, previously a Portuguese colony. Post-1997 Hong Kong enjoys extensive civic freedoms internally; and can conduct a wide-range of external affairs (excluding diplomatic and military affairs) on the world stage. Hong Kong remains a member of many international bodies. Its government can open representative offices in other parts of the world and its officials, unlike mainland officials, can travel without restriction to promote Hong Kong. The head of government (chief executive) is chosen using a supervised electoral college system, and legislators are “elected” directly by universal suffrage and via (limited franchise) functional constituencies in equal proportion. Full universal suffrage is possible when certain timelines and conditions are met.
After more than 20 years of operational experience, the Basic Law has stood the test of time in securing autonomy and freedoms for Hong Kong. The challenges have to do with the fact that the legal-administrative systems and political values of the mainland and Hong Kong are very different and the greatest difficulties arise when Hong Kong’s second system has rubbed up against ‘one country.’
Basic Law interpretation
Under any modern constitutional system, there needs to be a final constitutional umpire. Article 158 in the Basic Law assigns this ultimate role to the National People’s Congress Standing Committee (NPCSC). This is the provision in the Basic Law which has given rise to the most controversy. Article 158 authorises the NPCSC to interpret the Basic Law, which aligns with China’s constitutional structure. This is different from common law systems where there is separation of powers and the (separated) courts typically enjoy an extensive power of final legal interpretation.
Article 158 has been used five times in 21 years, most recently in 2016 to interpret Article 104 of the Basic Law, which sets out when and how relevant public officials need to swear to uphold the Basic Law and allegiance to the HKSAR of the PRC. This interpretation was handed down as a court case was underway to decide if two legislators-elect should be disqualified from taking up their legislative seats due to their failure in oath swearing. When swearing, they each used words not in accord with the required form and which expressed clear hostility to the People’s Republic. The judge hearing the case found that they could not take up their seats because, by departing from the usual form, they had in fact refused to take the oath. They could not take the oath again because, having refused the oath, they had in effect vacated their seats; and by-elections had to be called. The judge, in making the judgment, noted that he based it on his own legal reasoning. That judgment and the interpretation by the NPCSC led to four other legislators being disqualified because of their theatrics during oath swearing.
Given the significant political implications, this latest interpretation is arguably the most controversial. That said, the court decision and NPCSC interpretation have now made clear that there is a very high cost to politicians not taking their oath swearing seriously. Theatrics would not do. Indeed, the kind of disrespectful stagecraft used by the legislators-elect in Hong Kong would not have been acceptable in any other significant legislature around the world, although it had been employed in the past in oath swearing in Hong Kong. The limit of tolerance was crossed in 2016 when the level of dramatics included stage accessories and direct challenges to national unity and territorial integrity. In October 2018, one of those earlier disqualified legislators has been disqualified once more – this time barring her from running in a by-election arising from the earlier disqualifications for having advocated ‘self-determination’ for Hong Kong in the past.
In July 2018, there was a response to another perceived national security risk. The Hong Kong Secretary for Security demanded that the Hong Kong National Party (HKNP), a political group formed by young activists in 2016, respond to detailed questions on the party’s support for Hong Kong independence. The Secretary for Security subsequently determined that the HKNP was an unlawful organisation under the Societies Ordinance. This action involved the application of the (British enacted) Societies Ordinance in the interests of national security, an explicit basis for invoking the Societies Ordinance.
These executive actions limiting prima facie rights of political participation (on particular legal grounds) remain subject to ultimate judicial review.
Prior to the declaration that the HKNP was an unlawful organization but after the notice of action under the Societies Ordinance to ban the party was served, the Foreign Correspondents Club (FCC) in Hong Kong hosted a lunch-time address by the leader of the HKNP where he advocated Hong Kong independence from China. This proved to be controversial. Adding to the controversy, the British journalist who was the vice-chairman of the FCC and who hosted the event, subsequently failed to secure renewal of his HKSAR work visa (which coincidentally needed renewing at about the same time).
‘One country” and rule of law
Claims that the rule of law is being undermined in Hong Kong can be traced back to 1999 when the NPCSC handed down its first Article 158 interpretation. The NPCSC was responding to a decision of the Court of Final Appeal (CFA) striking down 1997 Immigration Ordinance amendments aimed at restricting the categories of those on the mainland with any right to claim a Right of Abode in the HKSAR. The NPCSC did not overturn the CFA’s decision as it related to the litigants but ruled that the CFA should have referred the matter being litigated to the NPCSC for interpretation under Article 158. The NPCSC then interpreted and applied certain provisions of the Basic Law to restrict mainland migration to Hong Kong.
Although not needed to reach its original decision and thus not strictly part of the CFA decision, the CFA also stated that it had the power to strike down acts of the NPCSC and the National People’s Congress if they breached the Basic Law. This challenge struck at the heart of the mainland system by suggesting that it was for the Hong Kong courts to decide the constitutionality of acts of the nation’s highest organ of power. That assertion was widely criticised on the Mainland but the NPCSC did not have to express a view on it as it was not a ground on which the CFA decision relied.
In two of the remaining interpretations, the focus of the NPCSC was on electoral issues. The first, in 2004, detailed the process for initiation of electoral reform in Hong Kong and a timeline which made it clear that universal suffrage could not be achieved in the 2007 and 2008 elections for the chief executive and legislature, respectively (this is widely regarded as the most radical interpretation of the Basic Law so far under Article 158). The second arose in 2005 as a result of the first chief executive resigning mid-term. The NPCSC applied a mainland principle to ensure the replacement served out the remaining term rather than start a fresh five-year term. The fourth interpretation resolved a commercial-state conflict of laws dispute, which was referred to the NPCSC by the CFA in 2011.
It was expected prior to 1997 that there may well be conflicts between the two legal traditions. After more than two decades, a pattern can be seen from these interpretations and the circumstances that led to them:
- The NPCSC, acting as the Basic Law constitutional umpire, can employ Article 158 at the request of the CFA; at the request of the HKSAR government; or on its own initiative.
- Hong Kong cannot use its legal system to usurp the powers of mainland organs. The NPCSC’s power to interpret the Basic Law is unqualified and can be used to clarify and supplement laws and is binding on local courts.
- There are significant differences in how the NPCSC functions within the mainland system and how superior courts operate in common law jurisdictions. In the common law world, there is a constitutional convention (i.e. custom) which accepts that supreme courts enjoy powers to reconstruct primary legal principles by applying new interpretations in particular leading cases. They regularly use such powers to change how constitutions operate in fundamental ways (such interpretations are typically set out in lengthy, carefully written judgments). The constitutional text is not changed – but the courts give fresh meaning to existing words – often with long-term dramatic consequences, in light of changing political-economic circumstances. The NPCSC, as the principal legislative-judicial organ within a civil law party-state has no comparable role. Its interpretations do have long-term impact but interpretations are typically short and have a narrow focus – the primary task is to solve immediate, practical, policy problems (it is fair to identify this as a constitutional convention in China). The Article 158 interpretations to date reflect this essential distinction. This custom applies a certain measure of control over the NPCSC interpretation power (compared to superior common law courts).
- NPCSC interpretations are important in the mainland’s political-legal tradition. They are employed with other mainland laws (under Article 67(4) of the Constitution of the PRC), though Article 158 interpretations are the most significant.
- Beijing plays a crucial role in deciding the pace and direction of electoral reforms in Hong Kong. In Beijing’s view, the key institutions of government in the HKSAR – the position of the chief executive and the legislature – must not fall into hands of the opposition who might turn Hong Kong into an anti-China base. Hong Kong cannot ignore Beijing’s concerns however much it desires to achieve universal suffrage.
Exploiting Hong Kong’s advantage
Controversy also arose over the case of five booksellers who ran into trouble with the mainland authorities. They published and sold books about mainland politics in Hong Kong, including gossipy works on mainland leaders. Three of them were detained when they were on the mainland, and one appeared to have been taken from Thailand. The controversy arose in Hong Kong when one of them, a Hong Kong permanent resident, was apparently abducted by mainland officials in Hong Kong and taken to the mainland for interrogation and detention. He was subsequently released back to Hong Kong. The Basic Law does not provide for mainland officials to exercise any such direct powers in the HKSAR.
The mainland authorities regarded the booksellers as Chinese nationals who have violated mainland law on the mainland. A Chinese official comment is illuminating:
… the books published aren’t about Hong Kong affairs … but about the Mainland’s affairs … [He] publishes … books in Hong Kong and brings them back to sell on the Mainland. This is his understanding of ‘one country, two systems’ – this ‘one country, two systems,’ we’d rather not have it.”
There was another case of a mainland billionaire businessman being taken from a hotel in Hong Kong back to the mainland supposedly to assist the authorities in investigating the mainland stock market crash in 2015.
These two cases represent warnings, likely directed at certain mainlanders above all. The message is that Hong Kong’s more liberal environment should not be exploited – using Hong Kong as a refuge – for overt political activism directed against Beijing. Hong Kong is right to complain that the general rule is very clear: mainland authorities cannot exercise their jurisdiction in the HKSAR and this is a line that Hong Kong must insist should not be crossed. Mainland authorities deny being involved in any improper “snatching.” Although this denial may not be credible, it indicates that Beijing realizes that the Basic Law forecloses any claim to any such powers to detain and transfer. Hong Kong can robustly resist this sort of delinquent behaviour on clear legal grounds which are implicitly recognized by Beijing.
The national security ‘duty’
Article 23 of the Basic Law was modified after the suppression of the Tiananmen Square demonstrations in June 1984. It now provides that Hong Kong shall enact laws of its own to prohibit acts of treason, secession, sedition or subversion against the People’s Republic and to protect state secrets, as well as prevent improper external political connections.
Treason, sedition and official-secret offences were firmly dealt with under British colonial laws. These laws remain on the books in the HKSAR. Secession and subversion against the People’s Republic have their roots in mainland political-legal priorities relating to national unity and territorial integrity.
The first attempt to fulfil this Article 23 requirement in the Basic Law was in the final year of British rule so that the HKSAR would already have such a law in place in a single piece of legislation. A draft bill was presented but it was not legislated as pre-1997 legislators felt, on balance, it was better not to have it, leaving such matters to be dealt with in the future. The second attempt was in 2003 by the then HKSAR government. It had to be abandoned after a massive protest. Negative public sentiments were high at the time as a result of weak economic performance due to the aftermath of the Asian Financial Crisis and Hong Kong being the epicentre of the frightening, though thankfully short-lived, severe acute respiratory syndrome (SARS) crisis. Since then, successive chief executives have emphasised that while it was Hong Kong’s constitutional duty to legislate, it was not a central priority at the relevant time(s). Currently, the official position is that Article 23 would not be introduced until “favourable conditions” are established.
The pressure to introduce Article 23 is notably greater today than in 2003 with the rise of ‘self-determination’ and ‘independence’ activism and young Hong Kong activists seeking support from overseas politicians as well as forming alliances with Taiwan’s pro-independence activists. This is also a time when American leaders assert that the United States and China are engaged in geopolitical competition. Taken together, these factors explain why Beijing’s anxiety level that Hong Kong should not to be used as an anti-China base is high.
Resistance to Beijing’s authority
‘One country, two systems’ as applied in Hong Kong is a unique experiment in the creation of an autonomous governing region within the world’s largest unitary state, where there are two different systems of government, two different economic systems and two different legal systems which need to be bridged. Hong Kong has not found it easy to fully accept Beijing’s authority. In looking back over more than two decades since 1997, the real transition to Chinese sovereignty started after the reunification and many conflicts had to take their course. Significant ‘live wire’ issues remain to be resolved. Political-legal challenges were expected; and they have come to pass.
Certain things are clear, however. First, claims that, after more than twenty years as the HKSAR: ‘one country, two systems’ has failed; the Basic Law is not working; and the HKSAR government is mainly a mouthpiece for Beijing; do not serve the people of Hong Kong well – and measured analysis confirms that such declarations are untrue. Moreover, they endorse an incomplete foundational understanding, which constrains any purposeful investigation of how the HKSAR can best shape its own future within China. Clear shortfalls notwithstanding, the ‘one country two systems’ experiment has delivered remarkable positive outcomes for over twenty years.
- Stress Testing Stability
Hong Kong has had its fair share of political stress both during the British Hong Kong era and as the HKSAR. Indeed, the recent moments of pressure are still fresh in the minds of many. The procedure of physical ‘stress-testing’ – to deliberately operate mechanical products to breaking point – when applied to Hong Kong (in a wider, political sense) shows that it copes quite well. The most recent pressure-tests confirm two aspects of the place that are notable – the great tolerance of its people and also that of the authorities.
Early Tests
As noted above, the British took possession of Hong Kong progressively, starting in 1842, by relying on ‘gunboat-diplomacy’ above all. Understandable enmity to this European colonization was felt in Beijing from the outset but the inflexible, declining Qing dynasty had little power to do anything apart from complain.
In the mid-1920s, after the Republic of China was established in 1912, British Hong Kong was put under serious stress through a strike and boycott jointly organized by the CCP and KMT in protest at lethal British punitive actions applied in Shanghai. With assistance from London, Hong Kong survived this test and the economy resumed its customary robust growth.
Post-War Protests
The first case of serious post-war, political rioting in Hong Kong occurred in 1956, when supporters of the KMT and CCP clashed violently, especially in Tsuen Wan. There were 59 deaths and much property damage. British military personnel were used to reinforce the Hong Kong Police Force.
The next serious, post-war riots, in 1966, are commonly referred to as the “Star Ferry Riots.” The dissatisfaction with British rule in Hong Kong at this time was high. There was a special hostility to the extensive corruption which had grown apace in the 1950s and 1960s. The announcement of fare increases on the Star Ferry service across Victoria Harbour triggered the rioting, which lasted for several days. One protester died, and there was extensive property damage and many arrests.
The “1967 Leftist Riots” as they are known were far more serious. They lasted from May to December 1967. This major political disturbance was significantly fuelled by the spill-over from the early stages of the Cultural Revolution. Over 50 people were killed. Thousands of fake and real bombs were manufactured. Property damage was far more extensive than in 1966.
Over the following years, the government took various initiatives in response. The one which did most to reinforce Hong Kong’s adherence to the rule of law, to buttress acceptance of benevolent-authoritarian government and to enhance social stability was the establishment of the highly successful Independent Commission Against Corruption in 1974.
As the Tiananmen Square protests unfolded in 1989, around 1 million people marched in Hong Kong, firstly in support of the students in May and then in protest on June 5. Despite the enormous number of people protesting in the streets of Hong Kong, there was no violence or damage to property.
Post–1997 Protests
The recent pressure points were the Occupy Central Movement’s (OCM) multi-month demonstration in 2014 (also known as the Umbrella Movement); and the Mong Kok Riot in 2016.
Prior to them, there were other large protests. First, the major march on 1 July 2003 related to proposed new Article 23 laws and other governance concerns and then the 2012 protests against certain educational reforms.
Next, there are several regular, often annual, major protest events which draw medium to very large crowds, including: the June 4 Vigil; the July 1 National Day March; and the New Year’s Day March. In fact, each year, Hong Kong has around 6,000 demonstrations.
Occupy Central Movement – 2014
The lack of clear, consistent, firmly rational leadership proved to be a serious shortcoming for the OCM from the outset. Amongst other things, this allowed more radical elements to become dominant within the movement even before the occupations began. This zeal meant that the fragmented OCM leadership felt little need to reflect on questions of “political possibility.”
Many Hong Kong people who participated in the OCM occupations, which lasted for 79 days, or supported them more indirectly did so with an authentic commitment.
The OCM occupations began based on a notably overstated pretext. They were strikingly disproportionate, immensely disruptive and lacked coherence in leadership and in purpose. The claimed civil disobedience basis for commencing the occupations was insubstantial. The clear majority in the HKSAR eventually grew weary of the entire project. The main direct achievement which one can see was the large lift in political awareness for many who participated in and supported the OCM.
The entire OCM project was also remarkable in that it went for so long, involved so many participants, police – and OCM opponents – yet the physical harm and property damage suffered were so minimal. To have managed this over a period of almost three months is extraordinary. Self-restraint was displayed by OCM participants, officials (in Beijing and the HKSAR) the Police and OCM opponents. This, plus much more good sense than bad (combined with some effective application of the general law by the Judiciary) all helped Hong Kong cope with the OCM occupations.
Pressure from the OCM demonstration helped ensure that the 2014, Beijing proposed political reform package was vetoed in the Legislative Council by the pan-democrat opposition in 2015. This proposal could and should have been accepted, under protest if needs be. Voting it down was a grave error. Hong Kong was prevented from choosing (from an approved list) its chief executive in 2017 in a direct election and debate on further reform within such an election was stopped. The HKSAR was, thus, unable to step-up to a contained but still more democratized election system. Moreover, China was denied a key opportunity to conduct (in the HKSAR) for this first time since 1949, a controlled experiment in political reform at an elevated executive level involving competing candidates and universal suffrage.
Mong Kok Riot (Fish Ball Revolution) – 2016
In the evening of 8 February, a major riot began in Mong Kok, which lasted for 10-12 hours. It started as some ‘localists’ claimed they wanted to protect fish ball (a local type of street food) sellers doing business. The localists at the pivot of the riot typically combined strong anti-mainland and specific anti-Beijing views with calls for some form of Hong Kong independence from China. Significant evidence emerged of detailed preparations for the rioting. Police estimated the active number involved in the riot to be between 400-500 persons. Some rioters turned on reporters and camera operators.
At around 2 am on Tuesday morning, a policeman fired two shots in the air as highly aroused rioters were closing in towards an injured policeman on the ground. The streets were finally cleared by around 8 am. Over 120 were injured during the riot with 90 of those being police officers. The rioting was widely condemned.
The Mong Kok riot was both opportunistic and confused in its purpose. One former leading politician among the pro-democracy camp offered the following comments about the rioters in July 2016:
What is their political narrative? Who are they actually against when they hurl bricks at police indiscriminately? What do they want to achieve?
Deep sense of tolerance
Hong Kong clearly has recovered strikingly well and with a sense of continuing positive, hard-working purpose from a significant number of severe tests arising from political protests. It is likely that the HKSAR will face continuing political disputation. This protesting could become highly intensified and it is possible that further violent protests may take place.
What this review strongly indicates, however, is that Hong Kong, collectively, has retained a deeply embedded capacity to cope with significant mass protesting, possibly better than anywhere else in the world. After each political disruption, Hong Kong has demonstrated a recurring, powerful understanding of the mutual value of retained stability, once the political dust has settled.
Christine Loh and Richard Cullen
Christine Loh is the Chief Development Strategist at the Institute for the Environment at Hong Kong University of Science and Technology, and also teaches at UCLA’s Anderson School of Management. She was a member of the Hong Kong legislature (1992-97 and 1998-2000) and the undersecretary for the environment in the HKSAR government (2012-17). Richard Cullen is a Visiting Professor in the Faculty of Law at the University of Hong Kong. He was previously a Professor in the Department of Business Law and Taxation at Monash University in Melbourne, Australia.
