Constitutionalism under Chinese rule: Hong Kong after the handover.

Author:Davis, Michael C.
 
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  1. INTRODUCTION

    With nearly two years having passed since the founding of the Hong Kong Special Administrative Region (HKSAR) it is a good time to assess Hong Kong's constitutional and human rights prospects. The 1984 Sino-British Joint Declaration set Hong Kong aside for a unique Chinese experiment with the fundamentals of modern liberal constitutional government.(1) In the 1984 agreement providing for the return of Hong Kong to China, Hong Kong was promised democracy, human rights and the rule of law, along with a "high degree of autonomy" under China's "one country, two systems" formula.(2) With the July 1997 handover, after thirteen years of preparation, the final phase of executing this agreement commenced. The people of Hong Kong and the world are watching to see if China's solemn commitments to set up a regime of liberal human rights and democracy within an authoritarian national system are carried out. While the transfer of sovereignty in Hong Kong on July 1, 1997 went relatively smoothly, tension between real power, reflected in China's perceived national imperatives, and the aspirations of liberal constitutionalism and autonomy remain and will shape the Hong Kong constitutional experiment. This tension is examined in the current essay.

    The Hong Kong project highlights the demanding task of constructing an adequate regime to secure autonomy and liberal human rights in a hostile national environment. In this regard, it is important to note that the nature of that national environment has changed from that envisioned in the Joint Declaration. The original design of the Joint Declaration seemed fundamentally concerned with the theoretically worthy task of separating a local liberal capitalist system from a Marxist national system. The advent of the free market in China means this project now may simply distinguish an authoritarian capitalist system on the mainland from an aspiring liberal capitalist or even soft-authoritarian one in Hong Kong.

    The success of Hong Kong's model will have enormous implications for both Hong Kong and China. A successful Hong Kong, under the commitments in the Sino-British Joint Declaration, would alone be a sufficient basis for this demanding constitutional effort. However, it is important to remember that this success will not only work to China's economic benefit, but may also afford a laboratory for China's ongoing political reform process. The Joint Declaration will certainly raise the high water mark for securing the benefits of human rights, liberty and democracy in Chinese society. Hong Kong's money and its rule of law, as well as its political and social values, are already traveling across the very porous Sino-Hong Kong border. Viewed internationally, Hong Kong is a major player in the global economic order and will be watched by its many trading partners. They will be watching to see if Hong Kong is a truly autonomous open community, which can be relied upon in the conduct of external relations. This is the high hope of the Hong Kong promise and of Hong Kong's service to China.

    This essay consists of three substantial parts. The first part addresses the basic constitutional order and its evolving commitments. After concluding that the Sino-British Joint Declaration includes a commitment to liberal constitutionalism, this part assesses the health of three key liberal constitutional elements, including sections on democracy, human rights and the rule of law. Both the Hong Kong Basic Law and subsequent transition and post-handover policies and practices are addressed. The remaining parts of this essay offer analysis of two key areas of concern, or what might be considered the main challenges facing Hong Kong in the implementation of its promised liberal constitutional order. These include the emergence of a competing political model evident in a "Singaporean" vision for Hong Kong, and the challenges associated with autonomy. The first of these relates to an economic paradigm, offered in competition to the liberal one discussed herein, that may animate current government policies and undermine this constitutional commitment. The final part analyzes the constitutional politics of autonomy, both in terms of Hong Kong's domestic relationship with China and its international personality.

  2. THE BASIC CONSTITUTIONAL AND HUMAN RIGHTS COMMITMENTS

    The 1984 Sino-British Joint Declaration, in addition to providing for the return of Hong Kong to China in 1997, essentially promised Hong Kong a future with a liberal constitutional order and a high degree of autonomy under the Basic Law.(3) As a general proposition, the basic structural elements of liberal constitutionalism are thought to include (1) democracy with multi-party competition, (2) liberal human rights protection, including freedom of speech, and (3) the rule of law, including adherence to principles of legality.(4) With the exception of some limitations on the level of democracy, the Joint Declaration promises all of these elements. In 1984, it was understood that anything less would fail to secure adequate confidence in Hong Kong's future. At that time a substantial portion of Hong Kong's people had escaped from the brutality of totalitarian communism, and the Chinese leaders themselves had just escaped the national trauma of the Cultural Revolution. While the Joint Declaration is general in character, it leaves little interpretive space for vitiating the liberal capitalist intentions of its drafters.(5) While the Chinese leaders may have been naive about the political implications of the great social experiments embodied in their open policy at home and in their Hong Kong policy, they left little ambiguity as to the nature of their Hong Kong commitment. Their commitment was for liberal constitutional government. Respecting democracy, the Joint Declaration promises that the Chief executive is to be chosen by "elections or consultations" held locally and that the legislature is to be chosen by "elections."(6) Regarding human rights, the Joint Declaration lists the full panoply of liberal rights, of which more than half relate to freedom of expression.(7) It also guarantees the application of the international human rights covenants.(8) The rule of law is expressly secured by the continued application of the common law, the independence and finality of the local courts, the supremacy of the Basic Law (which is stipulated to include the content of the Joint Declaration), and the right to challenge executive actions in the courts, which presumably includes the right to challenge the actions legal basis under the Basic Law.(9) By implication, this promised nothing less than a full system of constitutional judicial review to enforce a substantial bill of rights. In tandem with a degree of democracy and a high degree of autonomy, the Joint Declaration committed China to liberal constitutional government in Hong Kong.

    The HKSAR Basic Law, enacted in 1990, lives up to these commitments in many respects but falls ambiguously short in others.(10) As a constitutional document, the Basic Law is the product of an extraordinary five year drafting process.(11) After multiple drafts and endless discussions a constitutional road map for the future HKSAR took shape. While these discussions, engaged a wide range of ideas, Chinese officials did seek to constrain the outcome. They were cautious about democratic development from the start.(12) But at the final stage, before approving the final Basic Law in April 1990, the 1989 Tiananmen demonstrations in Beijing and the enormous supporting demonstrations in Hong Kong left their mark. Although many key provisions were already finalized in the February 1989 final draft(13) and remained unaffected by Tiananmen, the 1989 demonstrations in Hong Kong shifted the paradigm of China's Hong Kong policy from protecting Hong Kong from China to the other way around.

    China's basic political instincts to maximize control and this "Tiananmen effect" combined to produce the conservative Hong Kong policy evident in the final Basic Law and China's transition practices. Both in the Basic Law and in subsequent transition policies, a degree of erosion from the Joint Declaration commitments has occurred. The following sections consider each of the key liberal constitutional components discussed above as they have emerged in the Basic Law, the transition process, and the post-handover politics of the first couple years of Chinese rule.

    1. Democracy

      The erosion of the Joint Declaration commitments is especially evident with regard to democracy, where the Tiananmen effect was most pronounced. The relevant provisions respecting democracy were not finalized in the first draft of the Basic Law published in 1988.(14) The 1989 Draft Basic Law then adopted a very conservative model.(15) After the 1989 demonstrations, as Chinese leaders worried about Hong Kong becoming a base of subversion, they sought to tighten the noose on democracy, insisting on retaining this very conservative evolutionary model in the final Basic Law.(16) This model, respecting the election of the first post-handover Legislative Council, allows the sixty-member body to have only twenty directly-elected geographical seats, ten Selection Committee seats and thirty functional constituency seats (from various professional and commercial sectors).(17) It is noteworthy that this figure was worked out with the British as part of a convergence plan to allow for the pre-handover Legislative Council to have only eighteen such directly elected geographical seats in 1991 and twenty in 1995. With convergence, it was anticipated that those elected in 1995 would remain in office through 1997 until 1999.(18) For the second and third term, under the Basic Law, there will be an evolutionary process expanding the number of directly elected geographical seats to thirty (along with thirty functional seats) by 2004.(19) For the period after 2007 a two-thirds...

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