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Hong Kong’s Constitutional Arrangements Aren’t Special

Alvin Y.H. Cheung, Visiting Scholar, U.S.-Asia Law Institute, NYU School of Law

As political wrangling in Hong Kong continues over changes to how the city’s Chief Executive will be selected in 2017, Beijing marks the 25th anniversary of the promulgation of the Hong Kong Basic Law—the Special Administrative Region’s constitutional document.  A recurring theme—both in the electoral reform debate and in the Basic Law celebrations—has been the supposed novelty of the “One Country, Two Systems” governing policy that the Basic Law embodied.

In an op-ed published on May 4 this year, Zhang Xiaoming, head of the Beijing Government’s Hong Kong Liaison Office, called “a system of universal suffrage with Hong Kong characteristics” a “new contribution to… human political civilization.”  The Liaison Office chief was not alone in his comments.  Speaking in Beijing to mark the Basic Law’s anniversary, Zhang Rongshun, vice-chairman of the National People’s Congress Standing Committee Legislative Affairs Commission, “stressed that the Basic Law contained concepts not found elsewhere” and warned that “any new system may succeed but could also fail.”  C.Y. Leung, Hong Kong’s Chief Executive, has also joined the chorus praising the Basic Law’s ostensibly unique status.  At a symposium to mark the Basic Law’s 25th anniversary, Leung asserted that “one country, one system is the international standard.”  Earlier in the year, during his Policy Address, Leung also referred to “One Country, Two Systems” as “a unique and unprecedented system.

The idea that Hong Kong’s governance arrangements are innovative is hardly new.  Speaking in February 1984, Deng Xiaoping implied that his “One Country, Two Systems” prescription for Hong Kong was a “new approach to stabilising the world situation.”  In a speech to Hong Kong’s Basic Law Drafting Committee in April 1987, Deng claimed that the Basic Law was “something new, without precedent in world history.”  Nor has the idea been confined to Chinese officialdom.  Writing in I·CON in 2012, Zhu Guobin extrapolated from Hong Kong to suggest that China was neither unitary nor federal, and therefore that China was an example of what he called the “novel model” of a “composite state.”  In reality, however, Hong Kong’s constitutional status is not unique at all—and Beijing’s repeated insistence to the contrary is not only disingenuous, but dangerous.

“One Country, Two Systems,” with its supposed “high degree of autonomy,” describes a form of devolution—albeit a deeply imperfect one.  But devolution—both in theory and in practice—is neither rare nor novel.  As early as 1933, Italian constitutional scholar Gaspare Ambrosini questioned the idea that the world consisted only of unitary states or federal states and argued that a system of devolved autonomy was a distinct constitutional arrangement.  A more recent study of autonomy co-edited by Yash Ghai and Sophia Woodman considered no fewer than thirteen autonomous areas, including Scotland, the Åland Islands, Hong Kong, and sister Special Administrative Region Macau.

Hong Kong is not even unique in terms of the historical background to its constitutional arrangements.  Hong Kong’s autonomy was guaranteed by the Sino-British Joint Declaration of 1984—in return for the peaceful recovery of territory given up after the Opium Wars under “unequal treaties,” China would guarantee a measure of autonomy.  But the use of autonomous government as a tool for settling international disputes over sovereignty did not begin with Hong Kong.  The Swedish-speaking Åland Islands in Finland are a much earlier example.  When the League of Nations decided the territorial dispute over the islands between Finland and Sweden in Finland’s favour in 1921, it did so on condition that Finland establish appropriate guarantees for Åland’s autonomy.  Nor are Hong Kong and Macau the only instances of devolution within China.  China’s Constitution recognizes—at least in theory—that ethnic minorities have legitimate claims to autonomy, although ongoing tensions in Tibet and Xinjiang suggest that Beijing has little interest in making good on these claims.  Admittedly, the political and constitutional context in Hong Kong and Macau is much less combustible than that in the Tibet and Xinjiang Autonomous Regions.  Nonetheless, one would expect to see certain central government strategies being applied across the board.

Beyond mere taxonomical correctness, there are at least two reasons why we should recognise that Hong Kong’s situation is not unique.  First, recognizing that Hong Kong is not unique gives a better picture of the deficiencies in “One Country, Two Systems.”  The office of Chief Executive, whose role and selection lay at the heart of the Umbrella Movement protests in 2014, is a prime example.  Part of the reason why Beijing has consistently stalled—and then backtracked—on Chief Executive electoral reform is that, under Basic Law article 43(2), the Chief Executive is ultimately accountable to Beijing.  Yet the Chief Executive is also supposed to represent the interests of the Hong Kong population.  When these demands come into conflict, there are few institutional incentives for a Chief Executive to take Hong Kong’s side over Beijing’s.

James Mitchell’s account of administrative devolution in Scotland provides a cautionary tale of the perils of dual mandates in the same office.  Prior to the introduction of legislative devolution with the Scotland Act 1998, successive Scottish Secretaries were expected to defend Scotland’s interests in the Cabinet.  Yet the Scottish Office remained accountable to the UK Parliament in Westminster, rather than to a distinctively Scottish electorate.  For as long as the office existed, Scottish Secretaries risked being seen as “the Cabinet’s man in Scotland,” and not “Scotland’s man in the Cabinet.”  Decades of opposition parties playing the “Scottish card” paved the way for the more expansive devolution powers—and democratic accountability to the Scottish electorate—contained in the 1998 Act.

The second reason to reject the myth of Hong Kong constitutional exceptionalism is that it is not merely wrongheaded, but pernicious.  Veteran Hong Kong columnist Joseph Lian, writing in the Hong Kong Economic Journal, accused officials of seeking to “prevent Hongkongers from drawing on the experience of other places where multiple systems work.”  But one need not accept that the idea that Hong Kong is “special” is the product of malice to recognize its dangers.  By denying the relevance of other examples of devolved government, Beijing can entrench a situation in which the Basic Law means “whatever Beijing officials say it means, whenever they choose to say it.”  The joint statement in April 2015 by 23 democratic legislators in Hong Kong on Beijing’s trampling of the Basic Law underscores the urgency of putting the city’s constitutional predicament in proper perspective.  Failing to do so would not only have disastrous consequences for Hong Kong’s autonomy.  It would also make a mockery of China’s binding commitments under the Sino-British Joint Declaration—and it would augur ill for Taiwan’s prospects in the event of reunification.

More fundamentally, the myth of Hong Kong exceptionalism is yet another variant of Chinese exceptionalism.  The implication that Hong Kong—and Beijing—have nothing to learn from other instances of autonomy dovetails with the ongoing Chinese backlash against “Western” values, most recently embodied in Document 9 and echoed in Albert Chen’s comments (reported in Hong Kong tabloid Apple Daily) that Hong Kong is unfit for “Western democracy.”  The same thinking underpins many of Beijing’s arguments against the applicability of international norms.  For instance, Zhang Xiaoming’s op-ed, in addition to calling for “institutional confidence” in Hong Kong, disparaged international standards for universal suffrage – enshrined in Article 25 of the International Covenant on Civil and Political Rights—as a “pseudo-proposition to mislead the public.”  Viewed in that light, “universal suffrage with Hong Kong characteristics” merely represents the latest attempt at debasing fundamental concepts by appending the phrase “with Chinese characteristics.”  Ironically, recognition that Hong Kong’s autonomy is anything but special might demand that most Confucian of concepts—a long-overdue rectification of names.

Suggested Citation: Alvin Y.H. Cheung, Hong Kong’s Constitutional Arrangements Aren’t Special, Int’l J. Const. L. Blog, May 29, 2015, at http://www.iconnectblog.com/2015/05/hong-kongs-constitutional-arrangements-arent-special


A version of this article was originally published in ChinaFile under the title “Hong Kong’s Not That Special – And Beijing Should Stop Saying It Is.

I am indebted to my colleague Wang Liwan (Visiting Scholar, U.S.-Asia Law Institute, NYU School of Law) for bringing Zhu Guobin’s I·CON article to my attention.  All views (and errors) remain my own.

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Published on May 29, 2015
Author:          Filed under: Analysis
 

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