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November 2019   |   Volume 21 No. 1

A Sliver of Hope for Hong Kong

The promise of the ‘one country, two systems’ model for Hong Kong has descended into increasing conflict and intransigence, as recent clashes illustrate. But that does not mean there are no options for moving forward, suggests a forthcoming book from the Faculty of Law.

In the 1980s, when Hong Kong’s future was being negotiated by China and Britain, Deng Xiaoping coined the phrase ‘one country, two systems’ to describe the solution of allowing Hong Kong’s legal and economic system to remain unchanged for 50 years. This governing model is unprecedented because it seeks to preserve a liberal enclave within a socialist state. It informed both the Sino-British Joint Declaration, an international treaty that expires in 2047, and Hong Kong’s mini-constitution, the Basic Law, which mentions the 50-year timeframe but does not set an expiry date as such.

The neatness of the solution is now being sorely tested. To Cora Chan, Associate Professor of the Faculty of Law, who has been studying how to sustain ‘one country, two systems’, the problem comes down to the fact that everyone has a different idea of what the model means.

Deng believed it encapsulated economic separation, with Hong Kong as an international financial centre helping China open its economy. Many Hong Kong people see it in political terms as referencing Hong Kong’s distinct identity and autonomy from China. President Xi Jinping sees it in the context of China’s sovereignty, security and development interests.

The result, says Ms Chan, is that there are “centripetal forces bringing Hong Kong and China’s systems closer to unity, such as the co-location case [in which China controversially is applying Mainland laws at the terminus for a high-speed railway link in Hong Kong], and centrifugal forces pulling us apart, such as the voice for secession that was first heard after the 2014 Occupy Central movement.”

She has co-edited a forthcoming book that explores these tensions, called China’s National Security: Endangering Hong Kong’s Rule of Law?

“We are midway in the 50-year experiment and it is time to think about how we want the long-term China-Hong Kong relationship to look like,” Ms Chan said. “The theme of the book is whether it is possible to maintain China’s conception of national security without endangering Hong Kong’s rule of law.

The book does not assume it will definitely endanger Hong Kong’s rule of law, but rather explores whether it will and if it is possible to preserve both.”

China’s National Security:
Endangering Hong Kong’s Rule of Law?

Editors: Cora Chan and Fiona de Londras
Publisher: Hart Publishing
Year of Publication: 2020

Hidden message

The book tackles the question from three angles. One looks starkly at the incompatibilities between Hong Kong and China. “These chapters suggest a clash is inevitable,” Ms Chan said.

The second considers sources of resilience in Hong Kong against encroachments on the rule of law that come in the guise of national security. These sources include the judiciary and legal profession, administrative law, legislature and civil society.

“The [overt] message is that the ability of these sources to function as sources of resilience seems to be waning. However, I think there is a hidden message. Hong Kong is well endowed with a strong constitutional framework that grants us a lot of legal powers and a high degree of autonomy that exceeds many federal regions in the world,” she said.

“We have a deep-rooted rule of law tradition, a professional judiciary, a well-trained legal profession, and a vibrant civil society. We can’t take these for granted. There is much that the institutions of Hong Kong could still do if they are willing to make wise, timely and creative uses of their autonomous powers.” There is already an example of this in a 1999 right of abode case, in which the Court of Final Appeal said Hong Kong courts could strike down decisions of the National People’s Congress Standing Committee that violated the Basic Law. The point was made obiter dictum, meaning it was separate from the core reasoning of the judgement. Partly as a result, it did not attract an overturning by the Standing Committee.

‘Perennial tension’

The third section considers concrete proposals for reinforcing Hong Kong’s resilience, such as ensuring a role for international human rights and common law principles if and when Article 23 legislation is introduced, strengthening the judiciary, considering how courts can deal with the demands of secrecy in national security cases, and introducing new institutions to monitor human rights.

Ms Chan has also separately explored the idea of maintaining the ‘perennial tension’ in ‘one country, two systems’ – of the two systems agreeing to disagree on certain legal questions, which are likely to be few in number. This has happened in the European Union (EU), where some member states do not fully accept that EU law overrides their constitutions.

“This pluralist concept would flout the traditional conception of a legal system, which is assumed to be unified with a final arbiter. However, the cost that comes with the lack of unity might be worth it. It might enable us to sustain both China’s sovereignty and Hong Kong’s rule of law in the long term,” she said.

Whatever the outcome of the ‘one country, two systems’ experiment, the rest of the world will be watching. “China’s strategies in Hong Kong are indicative of its strategies around the world. Hong Kong is a testing ground for how resilient liberal values are against the authoritarian visions offered by an economic superpower,” Ms Chan said.

The tensions in the ‘one country, two systems’ concept have been manifested socially and constitutionally. The co-location controversy is an example of such manifestation.

There is much that the institutions of Hong Kong could still do if they are willing to make wise, timely and creative uses of their autonomous powers.