Will Hong Kong be successfully integrated into China? A human rights perspective.

• Author: Ping, Yu
• Position: Symposium: Hong Kong's Reintegration into the People's Republic of China

1. INTRODUCTION

   With the return of Hong Kong to China, there is much speculation about Hong Kong's future. China, through its negotiations with the United Kingdom (hereinafter U.K.), promised that Hong Kong would enjoy a high degree of autonomy after its reversion to China. All social systems and political structure would basically remain unchanged, and lifestyle and economic prosperity would be preserved as well, according to the Joint Declaration of the People's Republic of China (hereinafter P.R.C.) and the United Kingdom of Great Britain.(1)

   Many fear, however, that when Hong Kong changes hands, the basic rights of the Hong Kong people will be adversely affected. The P.R.C. declared several years ago that it would encroach upon the legislature put in place by the first-ever political reform initiated by Christopher Patten, the last English governor.(2) The National People's Congress (hereinafter NPQ announced in March 1997 that the legislature would cease to operate after June 30, 1997.(3) Its replacement, the Provisional Legislature, essentially hand-picked by the government of the P.R.C., would take the place of the Legislative Council (hereinafter LegCo) thereafter.(4) Meanwhile, Tung Chee-hwa, the first executive of the Hong Kong Special Administrative Region (hereinafter Hong Kong SAR), publicized his plan to roll back social ordinances,(5) which had been amended by the British government and which themselves had obviously been in conflict with the International Covenant on Civil and Political Rights (hereinafter ICCPR),(6) to which Hong Kong is a party by way of the U.K.

   All these incidents indicate that the promise of "one country, two systems" by the P.R.C. is on the verge of being scrapped and that the basic rights of Hong Kong people are in real danger. Some may argue that the P.R.C. has many reasons to maintain the status quo in Hong Kong. Among such reasons, the most obvious is that China needs Hong Kong in its economic construction. For years Hong Kong, as an international finance center and free port, has channeled tremendous investment into China's market, which eventually energized the P.R.C.'s national economy. During most of the cold war period, Hong Kong provided the only conduit for China to communicate with the rest of the world. Even today, Hong Kong remains one of China's largest trade partners. Indeed, China needs Hong Kong more than Hong Kong needs China, given that China continues opening to the world.

   On the other hand, China's expectations about Hong Kong encompass more than economic need. In the words of Chinese leaders, recovering Hong Kong would primarily mean two things to China: sovereignty and economic prosperity.(7) Resumption of sovereignty over Hong Kong could well serve the needs of China according to the leadership of the country. After the completion of the handover, nationalism will certainly increase and boost the confidence of the communist party in ruling China. During the past two decades, the Chinese Communist Party (hereinafter CCP) has constantly lost its faith and legitimacy as the only ruling party in China amid introduction of economic reforms initiated by Deng Xiaoping. In this sense, Hong Kong's return to the motherland will mean more to the Communist party than to China itself, especially as Deng Xiaoping and his revolutionary generation lose power and a new generation of leaders emerges. Surely, Hong Kong's continuing prosperity can provide China with a long-lasting chance to readjust itself to superpower status in the next century.

   This Article reviews the history of British rule in Hong Kong with respect to human rights, and explains why China is angered by last-ditch British political reform in Hong Kong. Then, it assesses the legal framework of future Hong Kong, including the Joint Declaration of China and Britain and the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (hereinafter Basic Law), to determine to what extent this legal regime can protect people's basic rights in Hong Kong. Space is allocated to examining the mechanism of the international human rights system and its relevance in light of human rights protection in Hong Kong. Finally, the Article concludes that the devices intended to protect basic rights in Hong Kong are inherently deficient if the designers expect to achieve their goals. The consistent and close attention of the world will be critical to human rights protection in Hong Kong as well as to hold China to her promise. Whenever Hong Kong is not the focus of the world's attention, human rights could be eroded. On the other hand, helping China smoothly reintegrate into the world would be a promising way to minimize the danger to Hong Kong's human rights and prosperity. Therefore, it would be worthwhile to try in every possible way to reintegrate China into the international community before Hong Kong is fully integrated into China.

2. A HISTORICAL REVIEW OF THE PROTECTION OF HUMAN RIGHTS IN HONG KONG AND CHINA

   To understand Hong Kong's current situation, one must recall the early days of Hong Kong in relation to democracy and human rights. Hong Kong has been best known as a paradise for doing business.(8) The British government held overwhelming control of local politics. Political participation of local Chinese was immaterial until the late 1980s.(9) In Hong Kong's three most important branches of government, almost all top positions historically were occupied by non-Chinese, primarily English. Even after the Second World War, when decolonization became a trend under the United Nations sponsorship, the U.K. generally showed no such inclination in considering the status of Hong Kong.(10) Worried about its rule in Hong Kong, Britain was among a handful of the Western countries to recognize the P.R.C. during early 1950s. For the last several decades, Britain administered Hong Kong heavy-handedly in the areas of human rights protection and political participation. As some observers noted, social stability had been the top priority of British colonial government.(11) It was not until the late 1980s, especially after the Tiananmen Massacre, that Britain began thinking seriously of real political reform and human right safeguards.

   Under the authority of the British government, Hong Kong for many years did not share the human rights protections bestowed upon the people of the U.K. It can even be said that the British government had a bad reputation insofar as human rights for the Hong Kong people were concerned.(12) In this respect, Hong Kong was treated even more badly than other British colonies.(13) Although Hong Kong incidentally benefited from the U.K.'s ratification of the International Covenants on Civil and Political Rights and on Economic, Cultural, and Social Rights in 1976, the people of Hong Kong have long been barred from many rights embodied both in the British laws and in these two covenants.(14) It was the self-restraint of the Hong Kong government in exercising authority that preserved liberties in Hong Kong, because the legal provisions were weak in terms of protecting basic rights there.(15) Only recently did the British government begin introducing a number of provisions guaranteeing the basic rights of the Hong Kong people, apparently out of pressure by the international community and the people of Hong Kong.(16) As the U.K. launched its last-ditch democratic reform in Hong Kong, it is not surprising that the P.R.C. cast deep doubts on the real intention of Britain. As one of China's top policy-makers put it: "After entering the second half of the transition period, particularly in recent years, disturbances agitated in Hong Kong illustrate that Britain still intends to seek for a right to govern over Hong Kong after 1997."(17) He continued to suspect all political reforms introduced by the, British side during the early 1990s.(18) Not coincidentally, pro-China scholars also expressed their disbelief about the motivation of such political reform.(19) Some scholars categorized the ongoing political reform in Hong Kong as a smoking gun to cover the real intention of the British government in trying to keep a strong influence on Hong Kong in the post-1997 era.

   Moreover, Britain has consistently prevented its immigration laws, which had been applied to most of its other colonies, from applying in Hong Kong.(20) Britain also specifically excluded Hong Kong from the obligations that it had assumed toward the people of its colonies under the European human rights convention.(21) Therefore, unlike citizens of most other British colonies, the people of Hong Kong never enjoyed the right to live in the U.K.(22) Even after the Tiananmen massacre, only a small portion of people in Hong Kong had conditional rights to immigrate to the U.K., and they came under a specially designed plan.(23)

   British complacency toward human rights in Hong Kong also includes failures in implementing the two U.N.-sponsored human rights covenants. As discussed below, although Britain assumed its responsibilities under the two covenants for Hong Kong, she has made little effort to bring the system of Hong Kong into line with the terms set out in the covenants. The Human Rights Committee (hereinafter HRQ and the committee set up under the International Covenant on Economic, Social, and Culture Rights expressed their dissatisfactions with the performance of the British government in implementing the covenants in Hong Kong, especially with regard to Hong Kong's political structure, which is basically premised on privileges rather than on rights. On one occasion, the Committee pointed out:

   [The] electoral system in Hong Kong does not meet the requirement

   of article 25, as well as articles 2, 3, and 26 of the Covenant. It

   underscores in particular that only 20 of 60 seats in the Legislative

   Council are subject to direct popular election and that the concept

   of functional constituencies, which...