On July 1, 2022, President Xi Jinping, in an address delivered at the meeting celebrating the 25th anniversary of Hong Kong’s return to the motherland, formally announced the central government’s momentous decision on the future of the policy of “one country, two systems” (OCTS) in Hong Kong.
President Xi stated: “Today, I would like to stress again that ‘one country, two systems’ has been tested repeatedly in practice. It serves the fundamental interests of not only Hong Kong and Macao, but also the whole country and the nation. It has gained wide support from the 1.4 billion-plus Chinese people, including the residents of Hong Kong and Macao. It is also widely accepted by the international community. There is no reason for us to change such a good policy, and we must adhere to it in the long run.” With these words, President Xi authoritatively proclaimed that OCTS will continue beyond 2047 and there is no end date for the policy. These words from the paramount leader of China put to rest once and for all variegated speculations and apprehensions about the future of OCTS in Hong Kong.
At the same time, President Xi explicitly spelled out the basic principles essential to the long-term success of OCTS as gleaned from its past practice in Hong Kong. They have also taken into account the gargantuan changes in Hong Kong’s internal and external environments. They include: that national sovereignty, security, and development interests be safeguarded; that the country’s fundamental socialist system with Chinese characteristics led by the Communist Party of China be respected by Hong Kong residents; that the central government’s overall jurisdiction and Hong Kong’s high degree of autonomy be unified; that the executive-led political system of the Hong Kong Special Administrative Region be installed; that the proper relationship among the three branches of the political system be maintained; and that the HKSAR be administered by the patriots and that Hong Kong’s distinctive status and advantages be preserved.
Given the rise of different sorts of separatist and secessionist propaganda in the past decade and their palpable influence on young people, it can be expected that in the post-2047 Basic Law, the residents of Hong Kong have the solemn duties to safeguard national sovereignty, security, and development interests, to respect the Communist Party of China as the governing party of China, and to respect the socialist system with Chinese characteristics on the mainland
The facts that OCTS will continue beyond 2047 and that its practice has to abide by those basic principles imply that the current Basic Law, promulgated in 1990 and purported to maintain Hong Kong’s major institutions and policies circa 1990, might have to be amended in order to implement President Xi’s prescriptions.
In the first place, Article 5 of the Basic Law, which stipulates that the “socialist system and policies shall not be practiced in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years”, will be substantively amended to reflect the vast changes that Hong Kong’s capitalist system has undergone after its return to the motherland and Beijing’s decision to extend OCTS beyond 2047.
Second, unlike the current Basic Law, the national constitution will be given a prominent place in the post-2047 Basic Law. The post-2047 Basic Law will pointedly indicate that the national Constitution is the legal foundation of the Basic Law, applies to Hong Kong, and together with the Basic Law makes up the constitutional order of the HKSAR.
Third, the current Basic Law is long on the fundamental rights of the residents of Hong Kong but short on their duties. Article 42 mentions only that “Hong Kong residents and other persons in Hong Kong have the obligation to abide by the laws in force in the Hong Kong Special Administrative Region”. Given the rise of different sorts of separatist and secessionist propaganda in the past decade and their palpable influence on young people, it can be expected that in the post-2047 Basic Law, the residents of Hong Kong have the solemn duties to safeguard national sovereignty, security, and development interests, to respect the Communist Party of China as the governing party of China, and to respect the socialist system with Chinese characteristics on the mainland.
Fourth, there are many articles in the Basic Law that in effect attempt to “freeze” the major public policies of Hong Kong circa 1990 by specifying in concrete terms what they should be. Today, and certainly also in the years ahead, these articles have become more or less “straitjackets” hampering the ability of the HKSAR government and the Hong Kong community to reform the city’s institutions and policies for the sake of Hong Kong’s long-term sustained development and significant improvement in people’s livelihoods. Accordingly, the articles in the Basic Law purporting to preserve Hong Kong’s capitalist system in the 1980s may be simplified or repealed to unleash the forces facilitating active, proactive, and capable governance as well as the thorough resolution of the deep-seated “contradictions” in Hong Kong. In this connection, Article 107 is particularly likely to be rephrased. This article, which stipulates that the HKSAR “should follow the principle of keeping expenditure within the limits of revenues in drawing up its budget, and strive to achieve a fiscal balance, avoid deficits and keep the budget commensurate with the growth rate of its gross domestic product”, furnishes the underpinnings of the doctrines of “small government, big market” and “positive non-interventionism”. These doctrines are no longer appropriate as the HKSAR government is going to expand its role in Hong Kong’s economic, social, and livelihoods affairs, and provide the impetus for Hong Kong’s integration in the country’s overall development. Relaxation of Article 107 will likely take the form of continued insistence on fiscal prudence while providing more financial flexibility to the government, enabling it, for instance, to widen Hong Kong’s tax base or resort to borrowing if necessary for the city’s long-term development and well-being.
Fifth, closer cooperation between the central government and the HKSAR government in safeguarding national security and promoting Hong Kong’s prosperity and stability will be the norm in the future, particularly given the increasingly turbulent and threatening world situation. The principle of the “central government’s overall jurisdiction over Hong Kong” and the ways it will be exercised are likely to be spelled out in more detail in the post-2047 Basic Law. In the same vein, the status of the representative office of the central government may be elevated and endowed with unquestionable legal status in the post-2047 Basic Law, and so may its powers and functions.
Sixth, I expect that to fulfill the principle of “patriots administering Hong Kong”, some articles in the current Basic Law may be amended before their inclusion in the post-2047 Basic Law. Political rights might be granted only to those permanent residents of Hong Kong who are also citizens of the People’s Republic of China. In the current Basic Law, the right to vote is granted to all permanent residents, including those who are not Chinese nationals or who have the right of abode in foreign countries. In the HKSAR government, only the chief executive of the HKSAR, the executive councilors, and the principal officials have to be Chinese nationals. In the judiciary, only the chief justice of the Court of Final Appeal and the chief judge of the High Court of the HKSAR have to be Chinese nationals. It is likely that in the post-2047 Basic Law, more top positions in the government, the civil service included, and the judiciary will be open only to Hong Kong residents without foreign nationality or right of abode, even though these positions will still only constitute a tiny proportion of the positions at the top. Furthermore, right now, no more than 20 percent of foreign nationals and Hong Kong residents who have the right of abode in foreign countries are allowed to serve as members of the Legislative Council. This privilege granted to these people will most likely be repealed by the post-2047 Basic Law.
Seventh, Article 99 stipulates that “public servants serving in all government departments of the Hong Kong Special Administrative Region must be permanent residents of the Region”. To expand the talent pool available to the government, which will take up more diverse functions, this article is likely to be modified to allow more talent from inside and outside Hong Kong to join the government to enhance its capability to promote economic development, broaden the city’s industrial base, forge closer ties with the mainland and the countries within the Belt and Road Initiative and the Regional Comprehensive Economic Partnership.
Eighth, the Standing Committee of the National People’s Congress has interpreted the Basic Law five times since 1997. All these interpretations are likely to be incorporated into the post-2047 Basic Law via various articles. It is noteworthy that some of the Standing Committee’s interpretations of those articles of the Basic Law about the right of abode made in 1999 have not been followed by the decision of the Court of Final Appeal in the Director of Immigration vs Chong Feng Yuen case in 2001; the enshrinement of all the Standing Committee’s interpretations of the Basic Law in the post-2047 Basic Law means that Hong Kong’s courts have perforce to strictly follow the Standing Committee’s position on the right of abode no later than 2047. Furthermore, the decisions of the Standing Committee on Hong Kong’s electoral arrangements as well as the key contents of the Hong Kong National Security Law will likely be incorporated into the relevant articles in the post-2047 Basic Law.
Finally, Article 74, which regulates “private members’ bills”, is expected to be rephrased to also apply to the amendments to government bills put forward by the legislators. Previously, legislators, primarily those from the political opposition, deliberately introduced a lot of amendments to government bills that blatantly infringed upon the legislative intention of Article 74 to bolster “executive-led governance” with the purpose to filibuster and thereby obstruct the work of the legislature and the government. So far, both the legislature and the judiciary have refrained from taking a definite position on whether Article 74 applies also to amendments to government bills by the legislators. Even though it is inconceivable that filibustering will again be a weapon used by legislators against the government in the future, there is still a need to remove any ambiguity about the authority of Article 74.
Even though 2047 is still 25 years away, discussions about the content of the post-2047 Basic Law however are bound to come up well before that date and claim a prominent place in the public agenda of the HKSAR.
The author is a professor emeritus of sociology, the Chinese University of Hong Kong, and vice-president of the Chinese Association of Hong Kong and Macao Studies.
The views do not necessarily reflect those of China Daily.