Major Issues and their Resolution
The drafting of the Basic Law encountered a variety of issues. While many commentators at the time were very much concerned with the nature, structure and electoral methods of the political institutions of the SAR to be established and whether and the extent to which the changes to the electoral institutions of Hong Kong initiated by the British administration would become aligned with those to be prescribed under the Basic Law,[284] the fact that the PRC sought, in the making of the Basic Law, to invoke Article 31 of the Constitution to prescribe for the HKSAR systems which, according to the adopted state policy of OCTS,58 would be different from those established under the Constitution presented to the BLDC, BLCC and others not only the now commonly recognised questions involved in the grant of autonomy of delimitation of central and local powers, the extent of competence of the local institutions of self-government, and the construction of mechanisms of co-operation, coordination and dispute resolution,59 but also apparent contradictions for resolution.
This is because the Constitution has established the PRC as a unitary, socialist and centralised state.60The BLDC encountered early on in the discussion the issue of ‘residual power', which, rephrased scholastically, referred to the fundamental question of whether the establishment of the HKSAR involved the division of power or the authorisa- tion/devolution of power, with the focus on whether the SAR would also have the powers unspecified by and unenumerated in the Basic Law. This issue was raised by some BLDC HK members only to be rejected on the ground that the PRC was a unitary state.61
As discussions on the Central-SAR relationship progressed, BLDC Mainland members raised the issues of the authority of the SCNPC to review and invalidate laws made by the legislature of the SAR; the authority of the SCNPC to interpret the Basic Law; the application of certain national laws of the PRC, such as those on foreign affairs or defence and those signifying national unity and territorial integrity, to the SAR; and the jurisdiction of the courts of the SAR over foreign affairs, defence and ‘executive acts' of the CPG.
None of these issues were settled in the SBJD. The first two were expressly indicated in the system of State provided under the Constitution, whereas the last two could be implied, at least in part, from the OCTS policies described and elaborated in the SBJD. BLDC HK members, BLCC members and local professionals and commentators were seriously concerned that these Central powers and SAR limitations would curtail the SAR's autonomy and undermine the jurisdiction of its courts.62 The UK Government weighed in ‘limited democratisation' was to ‘return' political power to the Hong Kong people before 1 July 1997, pre-empting the grant of the ‘high degree of autonomy' by the PRC on the HKSAR on that date; see Chen and Ng (n 11) 50-53. When the drafting of the Basic Law had commenced, the PRC raised the objection that this British administration's initiative to develop ‘representative government' in Hong Kong exhibited a tendency to deviate from the SBJD see Lau (n 16) 99-101.58 In May 1983, the Second Session of the Sixth NPC signalled the adoption of OCTS as state policy when it approved the Work Report of the CPG presented to it during the session.
59See, eg, Yash P Ghai, ‘Introduction' in Yash P Ghai and Sophia Woodman (eds), Practising Self-Government: A Comparative Study of Autonomous Regions (Cambridge University Press, 2013) 1-31.
60 See the PRC Constitution, arts 1, 3, 5, 6, 7, 8, 11, 15, 16, 17, 18. These provisions provided: (i) the socialist system is the basic system of the PRC. Disruption of the socialist system is prohibited; (ii) the state organs of the PRC practises democratic centralism; and (iii) the socialist economic system is constituted with the state economy being the leading force based on state planning.
61 See Zhang et al (n 11) 199-201. For the relevant provision, see Basic Law (n 4) art 2.
62 See, for examples, D Chang, ‘In Search of Pragmatic Solutions' in Wesley-Smith and Chen (n 11) 273-76; and MCM Lee, ‘A Tale of Two Articles' in Wesley-Smith and Chen (n 11) 309-25.
Chang was a BLCC member. publicly during the consultation period for the DBLSO, making the point that it was entitled to assure that the principles embodied in the SBJD would be faithfully implemented in the Basic Law.[285] And, in fact, the UK Government, assisted by the British administration in Hong Kong, had been conducting a dialogue at the legal expert level with the PRC Government during the drafting period, offering comments and seeking to persuade the PRC side to adopt particular perspectives of drafting.[286] The open efforts by the Hong Kong community led to revisions to the disputed draft provisions that appeared to achieve clearer demarcations between the Central and SAR competences, including express and more precise provisions of the circumstances and scope of Central intervention.[287] The PRC State authorities, it was said later on, were guided at the time by the line that so long as the OCTS policy would not be undermined, the choice would be made to devolve to Hong Kong such authorities that could be devolved.[288]A continuing concern in the course of the drafting process involved the compatibility of the Basic Law with the Constitution, bearing in mind that the systems to be established pursuant to the Basic Law would be different from, if not diametrically opposed to, the socialist basic system of the country,[289] and there were proposed provisions that would regulate the activities of Mainland Chinese units of government in Hong Kong and obliging Mainland Chinese officers to obey the laws of the SAR.[290] One suggestion made during the drafting process was amending the Constitution to clarify and affirm the power to make such a law and stipulating in that law the provisions of the Constitution that would apply to the SAR.[291]
While this suggestion was not adopted, the pressing nature of the concern, which arguably problematise the validity of the Basic Law,70 was recognised.
The solution, as it developed, came in two parts. First, the Basic Law would have a provision establishing its self-contained nature, invoking Article 31 of the Constitution.71 Second, the NPC would make, when it adopts the Basic Law, a concomitant decision that referred to Article 31 and declared the Basic Law to beconstitutional as it is enacted in accordance with the Constitution of the [PRC] and in the light of the specific conditions of Hong Kong. The systems, policies and laws to be instituted after the establishment of the [HKSAR] shall be based on the Basic Law (emphasis added).72
As it has been foregrounded above, the matter that erupted the most divisive debate amongst BLDC HK members, BLCC members, and the Hong Kong public at large during the drafting of the Basic Law had been over the HKSAR's political system, including the electoral methods for its head, the Chief Executive, and its legislature, the Legislative Council. Factions of BLCC members devised and promoted, both in the BLDC and within the Hong Kong community, particular proposals on the two electoral methods.73 These proposals, on ‘elections' for high offices, were usually poles apart.74 These factions referenced the concurrent consultations made by the British administration in Hong Kong of the introduction of ‘representative government', including a hint of introducing geographical constituency-based ‘direct election' for a portion of the Hong Kong legislature as early as in 1988.75
Deng Xiaoping spoke to BLDC members on 16 April 1987. Deng explained that the OCTS policy was formulated on the understanding that the main body of the country adhere to the ‘Four Cardinal Principles' of CPC leadership of the country been raised during the consultation process of the drafts of the Basic Law; see Johannes Chan, H Fu and Yash Ghai (eds), Hong Kong’s Constitutional Debate: Conflict over Interpretation (HKU Press, 2000) 97-111.
70 See D Han, ‘On the Normative Content of “State” in the Hong Kong Basic Law' (2020) 32(1) Peking University Law Journal 19, 29-30 (in Chinese).
71 See Basic Law (n 4) art 11.
72 Decision of the National People's Congress on the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (4 April 1990).
73See Zhang et al (n 11) 112-15. One faction consisted of BLCC members who represented commerce, industry and the professions and opposed the welfarism that democratic elections might bring forth. Another faction consisted initially of BLCC members who aspired to the development of a democratic form of government at a faster pace and they later evolved into a grouping of 190 organisations and individuals; they were the first generation of the Hong Kong pan-democrats.
74 BLCC members proposed 21 plans for the election of the Chief Executive and the formation of the legislature. Whereas some proposals called for the return of the Chief Executive by universal suffrage of Hong Kong residents, other proposals advocated for the return of the Chief Executive by an election college composed of representatives of different sectors of the Hong Kong community. The constitution of the Legislative Council by ‘election' attracted proposals combining many forms of ‘election', including direct (or geographical constituency-based) election, indirect (which could be geographical constituency- or election college-based) election, and functional constituency-based election; see Zhang et al (n 11) 104-108.
75 See Loh (n 18) 163-65.
under the socialist system. Any change of the PRC's socialist system would be the end of prosperity and stability of Hong Kong.[292] Deng proceeded to talk about the drafting of the Basic Law. Having said that the Basic Law's provisions should not be ‘weighed down with too much detail', Deng turned to the political system of the future SAR. He indicated that Hong Kong's system of government
should not be completely Westernised; no Western system can be copied in toto.... [It] would not be appropriate for [Hong Kong's system] to be a total copy of [the systems of the UK or the United States] with, for example, the separation of the three powers and a British or American parliamentary system.
Nor would it be appropriate for people to judge whether Hong Kong's system is democratic on the basis of whether it has those features.[293]Deng also questioned whether it would be good for Hong Kong to hold ‘general elections' (or universal suffrage). He underlined that Hong Kong's administrators should be ‘people of Hong Kong who love the motherland and Hong Kong' and questioned whether universal suffrage would bring forth such people. He suggested that if ‘a general election' were to be held, there would have to be a transition period. Deng therefore urged the BLDC members to be realistic and ‘determine our system and our methods of administration in light of our own specific conditions’.[294]
Deng Xiaoping continued with other points. Deng criticised as unrealistic the claim that ‘everything would be all right if Hong Kong affairs were administered solely by Hong Kong people while the Central Government had nothing to do with the matter'. He indicated that something could happen in Hong Kong that might jeopardise the fundamental interests of the country or of Hong Kong itself, and asked, in such situations, whether Beijing should intervene or not. It was therefore to ‘Hong Kong's advantage, not its disadvantage, for the Central Government to retain some power there.. There will always be things you will find hard to settle without the help of the Central Government'. Deng lastly asked the BLDC members to think over how to tackle something happening in Hong Kong that would harm Hong Kong's interests or the interests of the country, suggesting as an example the following scenario:
after 1997 we shall still allow Hong Kong people to criticize the Chinese Communist Party and China, but what if they should turn their words into action, trying to convert Hong Kong into a base of opposition to the mainland under the pretext of ‘democracy'? Then we would have no choice but to intervene. First, the administrative bodies in Hong Kong should intervene; mainland troops stationed there would not necessarily be used. They would be used only if there were disturbances, serious disturbances.[295]
Afterwards, the BLDC changed the language describing the political system of the future SAR to one where the Chief Executive would hold real power, and the executive authorities of the SAR (headed by the Chief Executive) and the SAR's legislature would regulate each other as well as coordinate their activities. The factions of BLCC members continued to present modified electoral methods to the BLDC and the Hong Kong public but there was little narrowing of the divergence already seen in the first proposals. Rather, the stalemate produced two additional approaches from other BLDC HK members and BLCC members: One attempted to take elements from both sides to produce a moderated proposal, another sought to game the two sides towards compromise with a democratically conservative proposal.[296] After acrimonious discussions both in Hong Kong and the Mainland, the BLDC's political sub-group voted in November 1988 for a ‘mainstream plan' that provided for the election of the Chief Executive by an election committee in the first three terms and for the gradual increase of ‘direct election' seats of the Legislative Council to 50 per cent in the third term.[297] There was a severe lack of enthusiasm by the political factions concerned to reach a consensus when the Basic Law (Draft), which adopted the ‘mainstream plan', was under consultation.[298]
The UK and PRC sides, in the meantime, agreed that the British administration in Hong Kong would introduce no significant change in the composition of the legislature before the promulgation of the Basic Law, with the PRC allowing some change in the electoral method thereafter that would ‘converge' with the political system prescribed in the Basic Law. The British administration in Hong Kong conducted a consultation on political development in 1987 in terms that were shy on the introduction of ‘direct election'. Hong Kong organisations with a pro-PRC profile mobilised to submit responses against the introduction of direct election, which were counted by the British administration, together with those collected by the budding pro-democracy groups on the streets. The British administration was then able to conclude in early 1988 that while there was support for introduction of ‘direct election', the timing would not be in 1988.[299]
The June Fourth Incident and the run-up to it produced a radical change in the outlook of Hong Kong residents. While vast numbers of ordinary Hong Kong residents gathered, marched and made donations in support of the student movement in Beijing,[300] senior politicians in Hong Kong sought to advance, unsuccessfully, a more progressive plan that would have half of the legislature of the HKSAR returned by ‘direct election' in 1997 and the whole of it thus returned in 2003. There were others who were in favour of an even faster pace of democratisation. When the consultation on the Basic Law (Draft) resumed, the PRC State leaders had already indicated that Hong Kong residents should not interfere in the affairs of the country, and BLDC Mainland members sought to promote a new proposal coming from some BLCC members that would prevent directly elected members of the legislature from securing control of it. This led to even more fractious rows, including altercations among the business and professionals factions. In the end, it was the UK Government that brokered a deal with the PRC Government at the foreign minister level on the legislature's composition, including ‘convergence' between 1991 and 1997, the transition of its members to become those of the SAR legislature on 1 July 1997, and the development of the SAR legislature in the first three terms.[301] The BLDC voted on this agreement of the sovereigns in February 1990.[302]
IV.