P.Y. Lo, Barrister-at-law, Gilt Chambers, Hong Kong; Part-time tutor, Faculty of Law, The University of Hong Kong
On June 10, 2014, the Information Centre of the State Council of the People’s Republic of China issued a White Paper to set out in a formal document the Central Authorities’ comprehensive and correct understanding of the policy of “One Country, Two Systems” and the implementation of this policy in Hong Kong, one of the two Special Administrative Regions of China that implements this policy. The other Special Administrative Region is Macao.
The production and issuance of the White Paper has allowed ready access in English and other languages of the thinking of the Chinese Central Authorities of the arrangement that China has practiced since 1 July 1997 in Hong Kong to allow the capitalist system there to continue to exist with “a high degree of autonomy” under the governance of local inhabitants within the socialist system of the People’s Republic by international constitutional scholars interested in studying this topic of asymmetric autonomy.
The White Paper brings within its framework: (I) an officially approved historical account of the return of Hong Kong to China, (II) a descriptive account of the system by which the Chinese Central Government exercises “overall jurisdiction” over Hong Kong (including the powers directly exercised by the central government, and the powers delegated to the Hong Kong Special Administrative Region (HKSAR) by the Central Government to enable it to exercise a high degree of autonomy in accordance with the law, subject to the power of oversight by the Central Government, (III) a scoresheet of the “comprehensive progress” the HKSAR Government has made since the establishment of the HKSAR “with energetic support from the Central Government and the Mainland”, (IV) a litany of the efforts made by the Central Government to ensure the prosperity and development of the HKSAR (including “ensuring secure and stable supplies of basic necessities to the HKSAR”), and (V) a normative section on ‘fully and accurately understanding and implementing the policy of “One Country, Two Systems”‘.
The White Paper ends with concluding remarks exhorting, among other things, that “[the] endeavor to further the practice of ‘One Country, Two Systems’ requires both a comprehensive and accurate understanding and implementation of the policy to ensure that the practice moves forward on the right track and proactive and effective response to the difficulties and challenges confronting Hong Kong its development.” This document will be learnt (xuexi/學習) by government officials, politicians, and students in Hong Kong. And as the process of propaganda with Chinese characteristics of “changdujiangchuan” (唱讀講傳) goes, there will soon be an ode to the White Paper broadcast on Hong Kong’s airwaves.
The “meat” in the White Paper that may interest constitutional law and regional or subnational autonomy scholars are in Parts II and V.
Part II sets out how the Chinese Central Authorities have exercised sovereignty over Hong Kong upon the “resumption” of such exercise on 1 July 1997 when, to others outside China and Hong Kong, Britain handed over Hong Kong back to China. The exercise of sovereignty by the Central Authorities over Hong Kong is encapsulated in the expression “overall jurisdiction over the HKSAR”. The Central Authorities not only have powers that the relevant Central organ can directly exercise (such as responsibilities concerning foreign affairs and defense), but also establishes, authorizes and delegates to the institutions of the HKSAR the powers that they exercise for governing Hong Kong with a high degree of autonomy in accordance with the Basic Law of the HKSAR. Any inherent or residual power that Hong Kong might be thought to have is ruled out by the specific provision in the Basic Law (Article 20) of the Central Authorities’ power to make new authorization for the HKSAR. This Part also states not only the constitutional levers the Central Authorities have under the Basic Law but also the state institutions for supporting and guiding the administration of the HKSAR Government. State leaders will give guidance to the Chief Executive (who is the head of the HKSAR and its executive authorities) on major matters related to the implementation of the Basic Law when he visits Beijing to report his work. The Hong Kong and Macao Affairs Office of the State Council is an administrative office that works to implement “One Country, Two Systems” principle and related directives of the Central Government, and is responsible for communicating with the HKSAR Government. The Liaison Office of the Central People’s Government in the HKSAR is a “resident organ” of the Central Government in Hong Kong with formal duties of communicating with other resident organs in Hong Kong responsible for foreign affairs and defence, the promotion of exchanges and co-operation between Hong Kong and the Mainland, communication with personages from all sectors of Hong Kong society, and the handling of affairs involving Taiwan.
Whereas Part II discusses the formal authority of the Chinese Central Authorities over Hong Kong through the provisions of the Basic Law, Part V takes the discussion to the core principle, policy and practice of “One Country, Two Systems” and addresses “confused or lopsided views” in Hong Kong on this fundamental premise in China’s administration of Hong Kong in the last 17 years. It sets out, in current terms, a full and accurate understanding of the policy of “One Country, Two Systems”.
The “One Country, Two Systems” principle are said to be premised upon the fundamental objectives of maintaining China’s sovereignty, security and development interests and maintaining the long-term stability and prosperity of Hong Kong. “One Country, Two Systems” is a holistic concept. “One Country” means that within the PRC, HKSAR is an inseparable part and a local administrative region directly under China’s Central Government. The high degree of autonomy of the HKSAR is not full autonomy, nor a decentralized power. It is the power to run local affairs as authorized by the central leadership. The most important thing to do in upholding the “One Country” principle is to maintain China’s sovereignty, security and development interests, and respect the country’s fundamental socialist system and other systems and principles.
“Two Systems” means that, within the “One Country” the main body of the country practices socialism, while Hong Kong practice capitalism. The “One Country” is the premise and basis of the “Two Systems” and the “Two Systems” is subordinate to and derived from “One Country”. But the “Two Systems” under the “One Country” are not on a par with each other. In more concrete terms, the Chinese Mainland’s socialist system is the prerequisite and guarantee for Hong Kong’s practicing capitalism and maintains its stability and prosperity. Hong Kong and its residents should therefore fully respect the socialist system practiced on the Mainland in order for Hong Kong to retain its capitalist system and enjoy a high degree of autonomy with “Hong Kong people governing Hong Kong” according to the Basic Law.
The White Paper then asks all concerned to have a full understanding of the Basic Law, whose provisions are not isolated from but interrelated with each other. Each of the provisions must be understood in the context of the Basic Law and the HKSAR system as a whole. The document then suggests that comprehending “individual provisions of the Basic Law in an isolated way without taking into account the Basic Law a a whole, stressing one aspect while ignoring others, ambiguity or even contentious interpretation will occur, which will severely hamper the implementation of the Basic Law”. This statement could have been drafted to refer to and address the episodes of constitutional confrontations in the last 17 years following the interpretations of certain interpretations of the Basic Law by the courts in the course of finally adjudicating cases.
The most argued controversy concerning the White Paper is in third section Part V, which is headed “The Hong Kong People Who Govern Hong Kong Should Above All Be Patriotic”. Beginning from the premise that “loyalty to one’s country is the minimum political ethic for political figures”, the document applies it to “all those who administrate Hong Kong”, which include “the chief executive, principal officials, members of the Executive Council and Legislative Council, judges of the courts at different levels and other judicial personnel“. They all “have on their shoulders the responsibility of correctly understanding and implementing the Basic Law, of safeguarding the country’s sovereignty, security and development interests, and of ensuring the long-term prosperity and stability of Hong Kong. In a word, loving the country is the basic political requirements for Hong Kong’s administrators.” This struck a raw nerve among Hong Kong’s legal community and the Hong Kong Bar Association swiftly issued a statement to underline the difficulty of characterizing Hong Kong’s judges and judicial officers as Hong Kong’s administrators/political figures to whom specific political requirements are constantly demanded. This approach impinges upon Hong Kong’s core value of judicial independence. It can send out the wrong message to the wide audience that the White Paper is intended to have, including the international community, that Hong Kong’s judges are merely part of the machinery of governance, a portion of the governance team, and “sing in unison” with the Central and SAR governments and their interests. The Secretary for Justice has defended the White Paper by pointing to the terms of the Judicial Oath, which include swearing allegiance to the HKSAR of the People’s Republic of China and the upholding of the Basic Law.
Those who study the White Paper are also urged “to stay alert to the attempt of outside forces to use Hong Kong to interfere in China’s domestic affairs, and prevent and repel the attempt made by a very small number of people who act in collusion with outside forces to interfere with the implementation of “One Country, Two Systems” in Hong Kong’. One does not know whether inquiring comparative constitutional law scholars have already been categorized as part of the undesirable “outside forces”. Now they can read in Western languages the official statements and descriptions of the principle, policy and practice of “One Country, Two Systems” without the need to reach for the writings and commentaries of interlocutors, be it from Hong Kong or Mainland China. They can then reach their own views on what “One Country, Two Systems” is about and consider how to react to the upcoming events pitting civic movements in Hong Kong whose demands for democratic elections are said to be based on “internationally accepted or universal values” against the Chinese Central Authorities that claim to have been simply working along already designed tracks towards the continuously enriching and developing the practice of “One Country, Two Systems” in the HKSAR and maintaining the long term prosperity and stability in Hong Kong.
Suggested Citation: P.Y. Lo, China’s White Paper on Implementation of “One Country, Two Systems” Policy in Hong Kong: A Preliminary Reading, Int’l J. Const. L. Blog, June 19, 2014, available at: http://www.iconnectblog.com/2014/06/chinas-white-paper-on-implementation-of-one-country-two-systems-policy-in-hong-kong-a-preliminary-reading
 The English translation of the whole White Paper is accessible at http://news.xinhuanet.com/