P.Y. Lo, Barrister-at-law, Gilt Chambers, Hong Kong; Part-time tutor, Faculty of Law, The University of Hong Kong
On June 10, 2014, the Information Centre of the State Council of the People’s Republic of China issued a White Paper to set out in a formal document the Central Authorities’ comprehensive and correct understanding of the policy of “One Country, Two Systems” and the implementation of this policy in Hong Kong, one of the two Special Administrative Regions of China that implements this policy.[1] The other Special Administrative Region is Macao.
The production and issuance of the White Paper has allowed ready access in English and other languages of the thinking of the Chinese Central Authorities of the arrangement that China has practiced since 1 July 1997 in Hong Kong to allow the capitalist system there to continue to exist with “a high degree of autonomy” under the governance of local inhabitants within the socialist system of the People’s Republic by international constitutional scholars interested in studying this topic of asymmetric autonomy.[2]
The White Paper brings within its framework: (I) an officially approved historical account of the return of Hong Kong to China, (II) a descriptive account of the system by which the Chinese Central Government exercises “overall jurisdiction” over Hong Kong (including the powers directly exercised by the central government, and the powers delegated to the Hong Kong Special Administrative Region (HKSAR) by the Central Government to enable it to exercise a high degree of autonomy in accordance with the law, subject to the power of oversight by the Central Government, (III) a scoresheet of the “comprehensive progress” the HKSAR Government has made since the establishment of the HKSAR “with energetic support from the Central Government and the Mainland”, (IV) a litany of the efforts made by the Central Government to ensure the prosperity and development of the HKSAR (including “ensuring secure and stable supplies of basic necessities to the HKSAR”), and (V) a normative section on ‘fully and accurately understanding and implementing the policy of “One Country, Two Systems”‘.
The White Paper ends with concluding remarks exhorting, among other things, that “[the] endeavor to further the practice of ‘One Country, Two Systems’ requires both a comprehensive and accurate understanding and implementation of the policy to ensure that the practice moves forward on the right track and proactive and effective response to the difficulties and challenges confronting Hong Kong its development.” This document will be learnt (xuexi/學習) by government officials, politicians, and students in Hong Kong. And as the process of propaganda with Chinese characteristics of “changdujiangchuan” (唱讀講傳) goes, there will soon be an ode to the White Paper broadcast on Hong Kong’s airwaves.
The “meat” in the White Paper that may interest constitutional law and regional or subnational autonomy scholars are in Parts II and V.
Part II sets out how the Chinese Central Authorities have exercised sovereignty over Hong Kong upon the “resumption” of such exercise on 1 July 1997 when, to others outside China and Hong Kong, Britain handed over Hong Kong back to China. The exercise of sovereignty by the Central Authorities over Hong Kong is encapsulated in the expression “overall jurisdiction over the HKSAR”. The Central Authorities not only have powers that the relevant Central organ can directly exercise (such as responsibilities concerning foreign affairs and defense), but also establishes, authorizes and delegates to the institutions of the HKSAR the powers that they exercise for governing Hong Kong with a high degree of autonomy in accordance with the Basic Law of the HKSAR. Any inherent or residual power that Hong Kong might be thought to have is ruled out by the specific provision in the Basic Law (Article 20) of the Central Authorities’ power to make new authorization for the HKSAR.[3] This Part also states not only the constitutional levers the Central Authorities have under the Basic Law but also the state institutions for supporting and guiding the administration of the HKSAR Government. State leaders will give guidance to the Chief Executive (who is the head of the HKSAR and its executive authorities) on major matters related to the implementation of the Basic Law when he visits Beijing to report his work. The Hong Kong and Macao Affairs Office of the State Council is an administrative office that works to implement “One Country, Two Systems” principle and related directives of the Central Government, and is responsible for communicating with the HKSAR Government. The Liaison Office of the Central People’s Government in the HKSAR is a “resident organ” of the Central Government in Hong Kong with formal duties of communicating with other resident organs in Hong Kong responsible for foreign affairs and defence, the promotion of exchanges and co-operation between Hong Kong and the Mainland, communication with personages from all sectors of Hong Kong society, and the handling of affairs involving Taiwan.
Whereas Part II discusses the formal authority of the Chinese Central Authorities over Hong Kong through the provisions of the Basic Law, Part V takes the discussion to the core principle, policy and practice of “One Country, Two Systems” and addresses “confused or lopsided views” in Hong Kong on this fundamental premise in China’s administration of Hong Kong in the last 17 years. It sets out, in current terms, a full and accurate understanding of the policy of “One Country, Two Systems”.
The “One Country, Two Systems” principle are said to be premised upon the fundamental objectives of maintaining China’s sovereignty, security and development interests and maintaining the long-term stability and prosperity of Hong Kong. “One Country, Two Systems” is a holistic concept. “One Country” means that within the PRC, HKSAR is an inseparable part and a local administrative region directly under China’s Central Government. The high degree of autonomy of the HKSAR is not full autonomy, nor a decentralized power. It is the power to run local affairs as authorized by the central leadership. The most important thing to do in upholding the “One Country” principle is to maintain China’s sovereignty, security and development interests, and respect the country’s fundamental socialist system and other systems and principles.
“Two Systems” means that, within the “One Country” the main body of the country practices socialism, while Hong Kong practice capitalism. The “One Country” is the premise and basis of the “Two Systems” and the “Two Systems” is subordinate to and derived from “One Country”. But the “Two Systems” under the “One Country” are not on a par with each other. In more concrete terms, the Chinese Mainland’s socialist system is the prerequisite and guarantee for Hong Kong’s practicing capitalism and maintains its stability and prosperity. Hong Kong and its residents should therefore fully respect the socialist system practiced on the Mainland in order for Hong Kong to retain its capitalist system and enjoy a high degree of autonomy with “Hong Kong people governing Hong Kong” according to the Basic Law.
The White Paper then asks all concerned to have a full understanding of the Basic Law, whose provisions are not isolated from but interrelated with each other. Each of the provisions must be understood in the context of the Basic Law and the HKSAR system as a whole. The document then suggests that comprehending “individual provisions of the Basic Law in an isolated way without taking into account the Basic Law a a whole, stressing one aspect while ignoring others, ambiguity or even contentious interpretation will occur, which will severely hamper the implementation of the Basic Law”. This statement could have been drafted to refer to and address the episodes of constitutional confrontations in the last 17 years following the interpretations of certain interpretations of the Basic Law by the courts in the course of finally adjudicating cases.[4]
The most argued controversy concerning the White Paper is in third section Part V, which is headed “The Hong Kong People Who Govern Hong Kong Should Above All Be Patriotic”. Beginning from the premise that “loyalty to one’s country is the minimum political ethic for political figures”, the document applies it to “all those who administrate Hong Kong”, which include “the chief executive, principal officials, members of the Executive Council and Legislative Council, judges of the courts at different levels and other judicial personnel“. They all “have on their shoulders the responsibility of correctly understanding and implementing the Basic Law, of safeguarding the country’s sovereignty, security and development interests, and of ensuring the long-term prosperity and stability of Hong Kong. In a word, loving the country is the basic political requirements for Hong Kong’s administrators.” This struck a raw nerve among Hong Kong’s legal community and the Hong Kong Bar Association swiftly issued a statement to underline the difficulty of characterizing Hong Kong’s judges and judicial officers as Hong Kong’s administrators/political figures to whom specific political requirements are constantly demanded. This approach impinges upon Hong Kong’s core value of judicial independence. It can send out the wrong message to the wide audience that the White Paper is intended to have, including the international community, that Hong Kong’s judges are merely part of the machinery of governance, a portion of the governance team, and “sing in unison” with the Central and SAR governments and their interests.[5] The Secretary for Justice has defended the White Paper by pointing to the terms of the Judicial Oath, which include swearing allegiance to the HKSAR of the People’s Republic of China and the upholding of the Basic Law.[6]
Those who study the White Paper are also urged “to stay alert to the attempt of outside forces to use Hong Kong to interfere in China’s domestic affairs, and prevent and repel the attempt made by a very small number of people who act in collusion with outside forces to interfere with the implementation of “One Country, Two Systems” in Hong Kong’. One does not know whether inquiring comparative constitutional law scholars have already been categorized as part of the undesirable “outside forces”. Now they can read in Western languages the official statements and descriptions of the principle, policy and practice of “One Country, Two Systems” without the need to reach for the writings and commentaries of interlocutors, be it from Hong Kong or Mainland China. They can then reach their own views on what “One Country, Two Systems” is about and consider how to react to the upcoming events pitting civic movements in Hong Kong whose demands for democratic elections are said to be based on “internationally accepted or universal values” against the Chinese Central Authorities that claim to have been simply working along already designed tracks towards the continuously enriching and developing the practice of “One Country, Two Systems” in the HKSAR and maintaining the long term prosperity and stability in Hong Kong.[7]
Suggested Citation: P.Y. Lo, China’s White Paper on Implementation of “One Country, Two Systems” Policy in Hong Kong: A Preliminary Reading, Int’l J. Const. L. Blog, June 19, 2014, available at: http://www.iconnectblog.com/2014/06/chinas-white-paper-on-implementation-of-one-country-two-systems-policy-in-hong-kong-a-preliminary-reading
[1] The English translation of the whole White Paper is accessible at http://news.xinhuanet.com/
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3 responses to “China’s White Paper on Implementation of “One Country, Two Systems” Policy in Hong Kong: A Preliminary Reading”
This post updates readers on the latest developments since the publication of the White Paper.
The 19 June 2014 issue of the Renmin Ribao (People’s Daily) publishes a commentator’s article entitled “Correctly Grasp the Basis of the Constitutional System of the Hong Kong Special Administrative Region”. It elaborates on the part of the White Paper that underlines that the Constitution of the People’s Republic of China and the Basic Law of the Hong Kong SAR as the constitutional basis of the Hong Kong SAR and claims that there have been “departures” from this basis in Hong Kong, including in judgments of the Hong Kong SAR courts. This is an unprecedented criticism of the Hong Kong SAR courts and judges by the main propaganda organ of Central Authorities.
I have produced an English translation of the article to enable readers to grasp the criticism:
‘After the return of Hong Kong, a new constitutional order was established under the sovereignty of our state according to the principle and policy of “One Country, Two Systems”. This constitutional order is provided in accordance with the Constitution of our state and the Hong Kong Basic Law. The White Paper clearly indicates that the Constitution and the Basic Law together constitute the constitutional basis of the Hong Kong SAR. The Constitution has supreme legal status and highest legal authority. The Basic Law enjoys the legal status as Hong Kong’s constitutional law. This clarifies the relationship between the Constitution and Basic Law and should facilitate greatly the correct understanding of the “One Country, Two Systems” principle and policy and the Basic Law.
At the time of the drafting of the Basic Law, some people have begun to call the Basic Law as “mini-constitution”. After the return of Hong Kong, some people simply described the Basic Law as “constitution” and gradually there have been description of the Basic Law as “constitution” in large quantities in court and in books on the Basic Law. However, China is a unitary state and has one Constitution. Its local administrative regions may not have their own constitutions. The Hong Kong Basic Law was enacted in accordance with the Constitution. The legal logic of enacting a “constitution” in accordance with the Constitution does not exist. The description of the Basic Law as “constitution” cannot possibly be convenience in expression. Rather it reflects a rejection of the force and effect of the Constitution of our state. This shows probably a mentality of treating Hong Kong as an independent or semi-independent political entity. To correct this tendency, there must be firm understanding of the Constitution and the Basic Law together constituting the constitutional basis of the Hong Kong SAR. The Basic Law cannot replace the Constitution; it is constitutional law that was enacted in accordance with the Constitution and makes provision for the systems of the Hong Kong SAR.
Paragraph 3 of the Preamble of the Hong Kong Basic Law clearly states: “In accordance with the Constitution of the People’s Republic of China, the National People’s Congress enacts the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, prescribing the systems to be practised in the Hong Kong Special Administrative Region, in order to ensure the implementation of the basic policies of the People’s Republic of China regarding Hong Kong.”The Basic Law was enacted in accordance with the Constitution. The inevitable logic is that the Basic Law should be understood within the framework prescribed by the Constitution. We can see that after describing the Basic Law as the “constitution” of Hong Kong, nowadays, the understanding of Hong Kong society of the Basic Law, and even the interpretation by the courts of the Basic Law, may refer to international conventions, foreign works of jurisprudence, and judgments of other common law jurisdictions and non-common law jurisdictions. But seldom do we find a shadow of the Constitution of our state. This type of interpretation of the provisions of the Basic Law, which is divorced from the Constitution of our state, unavoidably takes a path further and further from the original intent of the Basic Law. Although the Basic Law provides that the previous common law legal system of Hong Kong shall remain and that reference may be made to judgments of other common law jurisdictions, such reference is posited on the prerequisite of the constitutional basis constituted by the Constitution and the Basic Law together. Without this prerequisite, such reference would become “follow”, using foreign scriptures to interpret China’s law. Without this prerequisite, “One Country” disappears from the constitutional system in silence and “One Country, Two Systems” would inevitably undergo a qualitative change. THIS IS ABSOLUTELY NOT PERMITTED! For these reasons, this tendency of only talking the Basic Law and not talking the Constitution must be corrected. Only by putting all provisions of the Basic Law within the framework of the Constitution for interpretation and implementation would the correct implementation of the Basic Law be ensured.
The statements of the leaders of the Central Authorities concerning Hong Kong all emphasize that “One Country, Two Systems” is an integral concept. An emphasis on “Two Systems” must at the same time stress on the practice of the socialist system of the principal part of the state, with Hong Kong retaining the previous capitalist system and way of life unchanged. But there are some people in Hong Kong who do not have an understanding on this matter at the correct place. And there are some others who want to take Hong Kong along the path of becoming an independent or semi-independent political entity. To correct this tendency, there must be talk of the Constitution, talk of the effect of the Constitution in the Hong Kong SAR, and establishment in Hong Kong of the notion of safeguarding the Constitution, obeying the Constitution. This is because the practice of the socialist system of the principal part of the state is provided for in the Constitution. That Hong Kong may practise the capitalist system is also provided for in the Constitution. Starting from obeying the Constitution, every part of the Chinese Mainland has the constitutional obligation to safeguard Hong Kong practising the capitalist system and Hong Kong has the constitutional obligation to safeguard the principal part of the state practising the socialist system.
Although the White Paper has only a short paragraph on the notion of the relationship between the Constitution and the Basic Law, each and every sentence in that paragraph is very specific. One can say that this paragraph grasps the key issue of the vague understanding of Hong Kong society in respect of the principle and policy of “One Country, Two Systems” and the Basic Law from the legal perspective. The constitutional basis of the Hong Kong SAR is fundamental to the implementation of good governance and maintenance of long term prosperity and stability of Hong Kong. There must not be any vagaries on this matter. And separate descriptive expression is not permitted.’
This commentator’s article of socialist rhetorical mobilization has contributed to the grave concern of many in the legal profession of the White Paper and the disregard and possible positive interference by the Central Authorities in Beijing on judicial independence and the Rule of Law in Hong Kong. As a result, Dennis Kwok, the Legislative Council member representing the legal functional constituency, and members of the Chief Executive Election Committee from the legal sub-sector, have, together with a number of prominent senior lawyers, called for Hong Kong’s lawyers to march silently in black suits on 27 June 2014 (Friday). The organizers intend that the silent march (the third of its kind in Hong Kong’s post-1997 history) will send the message to the Hong Kong people and the international community that the legal profession shall always stand firm to four principles:
• Separation of powers and judicial independence are fundamental to Hong Kong’s system. The Judiciary and judges cannot be placed in the same category as executive officials.
• “Hong Kong people ruling Hong Kong with a high degree of autonomy” under “One Country, Two Systems” is not open to re-interpretation. Article 22(1) of the Basic Law (which provides that no department of the Central People’s Government and no province, etc may interfere in the affairs of the Hong Kong SAR administers on its own in accordance with the Basic Law) must be reaffirmed.
• The legal profession in Hong Kong will not accept the unilateral imposition on Hong Kong’s Judiciary and judges of the requirements of patriotism and the so-called “correct” understanding of the Basic Law.
• The Rule of Law in Hong Kong requires our judges to adjudicate cases based solely on evidence, facts and law, in accordance with common law principles, and through an open and impartial hearing. The White Paper or other political documents issued by the Central People’s Government do not represent the law.
The silent march of Hong Kong’s lawyers took place on 27 June 2014 at 5.40 pm Hong Kong time. According to the organisers, 1,600 persons participated. According to the police, there were 850 persons at the “peak period of the public procession”. The participants included nine former chairmen of the Hong Kong Bar Association, the present dean of the Faculty of Law of the University of Hong Kong, and some government lawyers. There were voices of support from Mr. Justice Bokhary, a non-permanent judge of the Court of Final Appeal (and formerly a permanent judge of the Court of Final Appeal between 1997 and 2012) and from Mr. William Waung, a retired judge of the High Court. For newspaper reports, see http://www.scmp.com/news/hong-kong/article/1541814/hong-kong-lawyers-stage-silent-march-oppose-beijings-white-paper.
The Department of Justice of the Government of the Hong Kong Special Administrative Region issued a statement on 27 June 2014 in response to the silent march. The statement stresses that: “The Department of Justice at all times regards the upholding of the rule of law and judicial independence as its top priority. The Secretary for Justice and all the officers of the Department of Justice will continue to make their best efforts to discharge this constitutional responsibility.” The statement also expresses the belief that “the Judiciary and all its judicial officers will definitely continue to adjudicate cases fairly, justly and free from any interference”. On the other hand, the statement made the point that the White Paper of the Central People’s Government in Beijing that was the object of the silent protest of the marchers ‘aims to systematically explain and sum up the situation concerning the implementation of the “One Country, Two Systems” policy in the Hong Kong SAR. There is no intention to interfere with the rule of law and judicial independence of the Hong Kong SAR. As a matter of fact, the White Paper made repeated references to the fact that the Hong Kong SAR enjoys independent judicial power including that of final adjudication. The legal system of Hong Kong will undoubtedly continue to effectively protect the citizen’s rights in all aspects’; see http://www.info.gov.hk/gia/general/201406/27/P201406270880.htm.
Since the last post in this thread, the People’s Daily has published two more commentator’s articles elaborating on selected aspects of the White Paper, several hundred thousand Hong Kong people participated in a march across Hong Kong Island on 1 July 2014, more than 500 people stayed after the march in Central and got arrested by the police in the early morning of the next day, and the international press have noticed that there is something significant happening in Hong Kong.
This post will provide an English translation of the relevant portions of the two articles.
The first article, published on 30 June 2014 (i.e. one day before the 1 July march), was entitled: “Correctly Handle the Relationship between Central Authorities and Hong Kong according to the Basic Law”. This article begins with the point that one of the important elements of the Basic Law concerns making provision for the relationship between Central Authorities and the Special Administrative Region. The core in handling this relationship correct is handling well the relationship between Central Authorities’ power and the high degree of autonomy of the Hong Kong SAR. The provisions in the Basic Law stating that the Hong Kong SAR is an inalienable part of the People’s Republic of China and a local administrative region directly under the Central People’s Government with a high degree of autonomy clearly designate the legal positions of the Central Authorities and the Hong Kong SAR. They implicate that in the Chinese unitary state, the Central Authorities have the overall jurisdiction over all local administrative regions of China including the Hong Kong SAR. This is also the concretisation of the principle of sovereignty, realising the constitutional responsibility and duty of a sovereign state. On the basis of the principle and policy of “One Country, Two Systems”, the Central Authorities’ overall jurisdiction in respect of Hong Kong include not only powers directly exercised by the Central Authorities, but also the authorisation of the SAR to exercise a high degree of autonomy. The Central Authorities have the power of supervision in respect of the high degree of autonomy of the Hong Kong SAR. The article then lists out the powers in the Basic Law that are considered to be powers directly exercisable by the Central Authorities and the scope of the high degree of autonomy under the Basic Law. In respect of the high degree of autonomy of the Hong Kong SAR, the article underlines that however wide the scope of such autonomy, the legal position of Hong Kong as a local administrative region in a unitary state is not altered. A high degree of autonomy is not complete autonomy, does not involve a division of power, and has never been an inherent power of the Hong Kong SAR. It is the power of administering local affairs under authority from the Central Authorities. Under “One Country, Two Systems”, the overall jurisdiction of the Central Authorities in respect of Hong Kong and the Hong Kong SAR’s high degree of autonomy do not contradict each other, they go along with each other, they cannot make it without the other. The Central Authorities exercise the power at the state level and do not interfere with the affairs within the limits of the SAR’s high degree of autonomy. The Hong Kong SAR exercises the power of administering local affairs under authority from the Central Authorities. Both powers shall be exercised according to law and in co-ordination with each other. They safeguard together the operation of the SAR system. The article then emphasise the point that while some people are of the view that the Central Authorities should interfere as little as possible in Hong Kong, even to the extent that they should let go of administering matters that can be let go of, others believe that the principle of sovereignty should be limited to the areas such as foreign affairs and defence, and yet some others consider that the overall jurisdiction is “taking over Hong Kong completely”, all these are partial and incorrect reading of the relationship between the Central Authorities and the SAR and inconsistent with the provisions of the Chinese Constitution and the Basic Law.
The second article, published on 4 July 2014, is entitled “The Basic Principle and Policy of the Central Authorities towards Hong Kong has been Consistent”. The article underlines the premise of the White Paper as a systematic organisation and focused description of the basic principle and policy of the Central Authorities towards Hong Kong. It states that all the points made in the White Paper are based upon the Chinese Constitution, the Basic Law and documents of the Central Authorities on the principle and policy towards Hong Kong. It asserts that the beliefs that the White Paper deviates from the basic principle and policy originally made by the Central Authorities and that the Central Authorities may narrow down the high degree of autonomy of Hong Kong are all groundless. The article then makes reference to the words of Deng Xiaoping, the Chinese paramount leader who raised the concept of “One Country, Two Systems” as the way to resolve the Hong Kong question in the 1980s, including the saying that the adoption of “One Country, Two Systems” was based upon practical considerations, taking into account the historical realities of Hong Kong, as well as the saying that promise that Hong Kong will remain unchanged for 50 years after 1997 was a solemn one, not only for calming the minds of Hong Kong people but also out of the consideration of the close relationship between Hong Kong’s prosperity and stability and China’s development strategy, so that keeping Hong Kong prosperous would be consistent with the vital interests of China. This promise was written into the Basic Law. The article then stresses that the important statements of subsequent Chinese leaders were all derived from and consistent with Deng’s explanations. The article also indicates that Hong Kong not only has preserved the previous capitalist system and way of life, its laws have remained basically unchanged, its status as an international financial, trading and shipping centre has been maintained, but also has made new achievements in the democratic political system, and economic and social undertakings. Hong Kong has continued to be the window for attracting foreign investment and talents, and absorbing international advanced technology and management experience for China. The article considers that the implementation shows that the Central Authorities have kept the promise and the Central Authorities’ basic principle and policy towards Hong Kong is completely correct and consistent. The article concludes that there has been no change in the Central Authorities’ basic principle and policy towards Hong Kong. There will not be change either. This is based upon not only the needs of the national development strategy but also the needs of Hong Kong in resolving the problems arising out of development for the purpose of realising long term stability and peace. This is consistent not only with the state’s fundamental interests but also with the Hong Kong SAR’s overall and long term interests. Thus the Central Authorities’ basic principle and policy towards Hong Kong must be uphold continuously and implemented completely and correctly.