Introduction

The Basic Law of the Hong Kong Special Administrative Region (HKSAR) of the People's Republic of China (PRC) has often been described as a ‘unique document’d It is the principal legal instrument for implementing the PRC's poli­cies regarding Hong Kong of ‘One Country, Two Systems' (OCTS), which the PRC declared in the Sino-British Joint Declaration on the Question of Hong Kong 1984 (SBJD).² It is a national law enacted by the National People's Congress (NPC) of the PRC on 4 April 1990 to prescribe, pursuant to particular provisions of the PRC Constitution,³ the systems to be instituted in the HKSAR ‘in the light of specific conditions',⁴ which by reason of the OCTS policies,⁵ are systems different from the socialist systems and policies the PRC practised in the Chinese Mainland.

¹ See, eg, in HKSAR v Ma Wai Kwan David & Ors [1997] HKLRD 761 (CA) 773 (Chan CJHC).

²See the Joint Declaration of the Government of United Kingdom of Great Britain and the Government of the People's Republic of China on the Question of Hong Kong (19 December 1984) 1399 UNTS 33; (1984) 23 International Legal Materials 1366. In the SBJD, the United Kingdom (UK) undertook to restore Hong Kong to the PRC and the PRC declared that it would resume the exercise of sovereignty over Hong Kong on 1 July 1997 by establishing a SAR there in accordance with Art 31 of the PRC Constitution; see SBJD arts 1, 2, 3; Annex I.

³ ie pursuant to Arts 31 and 62(13) of the Constitution of the People's Republic of China (Adopted at the Fifth Session of the Fifth National People's Congress and promulgated for implementation by the Proclamation of the National People's Congress on 4 December 1982).

⁴ie the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (4 April 1990) (1990) 29 International Legal Materials 1511.

⁵ SBJD (n 2) art 3(2), (3), (4), (5). In a nutshell, these policies seek to maintain the socio-economic systems and lifestyle in Hong Kong under a government composed of ‘local inhabitants, enjoying a ‘high degree of autonomy' and ensuring rights and freedoms by local laws that ‘will remain basically unchanged'.

The making of the Basic Law was, like the document itself, also unique. To the residents of Hong Kong, it was the making of the constitutional instrument of the Special Administrative Region (SAR) to be established here by the PRC. To the Communist Party of China (CPC), it was the process of the PRC State authorities under its leadership making a law to stipulate the systems of the SAR, during which matters either not previously declared or not previously raised or discussed openly would, by necessity, have to be determined and detailed in accordance with the OCTS principle and the conditions of Hong Kong. And, politically, it was also the occasion and opportunity for the PRC to produce and demonstrate a mode for the reunification of China, bearing in mind that the OCTS principle of socialist China allowing a returned or reunified territory to continue to practise its capitalist system within its boundaries was first made in overtures of the CPC to the authorities in Taiwan.^[261]

The Basic Law's drafting took place at a time when the UK continued to admin­ister Hong Kong on its own policies and initiatives,^[262] albeit in transition towards 1 July 1997.^[263] And, as the counterparty to the SBJD, the UK had an interest to ensure that the PRC would produce a Basic Law that would be in accordance with the terms of the policies declared and elaborated in the SBJD.

This chapter seeks to indicate that the CPC undertook a major effort to produce a draft Basic Law for enactment in its adoption of a relatively open, inclusive and lengthy process, with one of the aims being that this draft would address and satisfy the aspirations of Hong Kong residents. The representation of Hong Kong residents in the drafting body of the Basic Law was not insignificant, and included critical voices that were tolerated until the drafting process neared the end. There was an institution in Hong Kong composed solely of Hong Kong residents that organised consultations on drafts of the Basic Law. Drafters of the Basic Law of the Chinese Mainland visited Hong Kong to hold meetings with groups of Hong Kong residents to receive their views. During the four years and eight months of the drafting and national and local consultation, lively debates and bitter disagree­ments amongst the drafters and between different factions of political aspirants in Hong Kong were assiduously reported by the vibrant and free press of Hong Kong. At the same time, exchanges between the PRC and the UK on the Basic Law, conducted through specific confidential channels, influenced and, at times, settled disputed issues in the drafting of the Basic Law.

This chapter reflects on the making of the Basic Law and makes three conten­tions. First, the drafting and consultation of the Basic Law had been a political awakening for Hong Kong residents, with many of the factional disputes and divi­sions still relevant presently. Second, had it not been for the June Fourth Incident in 1989 and the reactions, in Hong Kong, the UK, and the world at large, to it, the mobilisation undertaken by the CPC and the PRC State authorities, through the drafting of the Basic Law, to engage and foster goodwill in Hong Kong and abroad towards the resumption of exercise of Chinese sovereignty over a stable and pros­perous Hong Kong on 1 July 1997, would have borne fruit to the mutual benefit of both Hong Kong and the PRC. Hong Kong would have been endowed with a Basic Law that had fewer restrictions and lesser possibility of Central intervention. Third, the PRC had maintained control and dominance throughout the drafting and consultation of the Basic Law, and, with either foresight or hardened princi­ples, put in place in the Basic Law or left in it significant ambiguities that would, if necessary, enable the Central Authorities to deal with any political imbroglio that arises in the HKSAR.

The succeeding sections of this chapter are organised as follows. The insti­tutions of drafting and consultation (including the drafting committee of the Basic Law of the HKSAR of the PRC (BLDC) and the Basic Law Consultative Committee (BLCC)) are examined to underscore the efforts and preferences of the CPC and the PRC State authorities in selecting and inviting particular individuals to be members of these bodies. There then follows a brief chronology of the draft­ing and consultation processes. On this basis, a measured discussion of several major disputes in the drafting and consultation on the drafts of the Basic Law is presented. These issues include the demarcation of Central and SAR powers, the construction of the political system and the maintenance of the rule of law.

This discussion illustrates the interactions between the actors and stakeholders. Finally, this chapter concludes with a large dose of hindsight to connect the conten­tions made above with Hong Kong's present ‘securitised' situation.¹¹

II.