THE ASIA PACIFIC JOURNAL OF PUBLIC ADMINISTRATION VOL. 29, NO.

1 (JUNE 2007): 3-28

The Legal Foundations of Hong Kong's Autonomy: Building on Sand

Yash Ghai

This article examines changes to Hong Kong's constitutional and legal position since 1997. It focuses in particular on the promise in the Basic Law of a high degree of autonomy for the Hong Kong Special Administrative Region of China. The Basic Law is Hong Kong's constitution, made pursuant to article 31 of the Chinese Constitution. Interpretations of the Basic Law and related court cases, including interpretations by the Standing Committee of the National People's Congress, indicate that the autonomy of the HKSAR is very fragile. This conclusion is supported by the formal division of powers and responsibilities between the HKSAR and Beijing, and by institutional arrangements which are not in keeping with the essential elements of autonomy as apparent from analyses of other systems of government.

Introduction In the Sino-British Joint Declaration (1984), China stated that it would establish, under article 31 of the Chinese Constitution, a Hong Kong Special Administrative Region (HKSAR) "which will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People's Government" (article 3). In the Basic Law of the HKSAR, the National People's Congress (NPC) "authorises the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law" (article 2). As a result, it has become customary to refer to the autonomy of Hong Kong as descriptive of its legal status. I have argued, however, that "autonomy" is not an accurate way to define Hong Kong's status (Ghai 1999). A more accurate description appears in the Preamble of the Basic Law, which prescribes that "under the principle of 'one country, two systems', the socialist system and policies will not be practised in Hong Kong" and, instead, "the previous capitalist system and way of life shall remain unchanged for 50 years". The Basic Law describes in great detail the "systems" to be followed in the HKSAR for its administration and the conduct of its economy. Thus, the principal purpose of the Basic Law is to separate off the economic systems of the Mainland and the HKSAR, from the logic of which followed institutions to support Hong Kong capitalism as understood by Beijing (with some instruction from Britain). When presenting the Basic Law to the National People's Congress for
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its approval, Ji Pengfei explained that the structure of government "must facilitate the development of the capitalist economy in the Region". The HKSAR does not have the authority to alter the "systems". Consequently, Hong Kong people have to make laws and policies within the interstices of the "systems". In some respects there is considerable scope for this, but the essential framework (and often the details) cannot be changed. The HKSAR cannot change its government institutions on its own, nor the electoral laws, and nor significantly a rather laissez-faire economic system. These restrictions are supported by another aspect of the institutional arrangements, which centre on the office and powers of the Chief Executive and are part of Beijing's plan to acquire ultimate control over Hong Kong affairs. This is not autonomy. Autonomy is self-government, where within the division of responsibilities between the centre and the autonomous area, the inhabitants of the autonomous area are free to make policy and organise and run the government, without interference or direction from the centre. They can freely express their identity and pursue objectives for which there may not be much appetite in other parts of the country. But this is not the theme I want to pursue now, and am prepared to concede that on a day-today basis, within limits Hong Kong institutions are free to make choices. I want to demonstrate that whatever the degree of autonomy, the legal arrangements underpinning it are so fragile that, on that account alone, the HKSAR cannot be said to be autonomous. There can be no autonomy unless these legal arrangements are properly entrenched and Hong Kong institutions are fully democratised and responsible to the people of Hong Kong. In the 10 years since the establishment of the HKSAR, it has become clear that there is no secure legal basis for the exercise of powers and the autonomy of its institutions. Components of Autonomy The comparative study of autonomy systems shows that while each system is different from others, specific to its context and circumstances, there are certain approaches, institutions and procedures which have a considerable bearing on the prospects of autonomy.1 The first is the degree of the entrenchment of the autonomy that is, what are its constitutional foundations? Autonomous arrangements which are easy to remove will put autonomy constantly at risk and deter the autonomous region from its full exercise. Autonomy which can be diminished or removed without the consent of the autonomous region is neither secure nor effective. A closely connected factor is whether the autonomous region has its own charter or constitution which prescribes institutions and procedures internal to the region, and which it alone can amend (subject to the fundamental principles of the national constitution). If it does, it is more likely to have full internal democracy, and the security of a substantial part
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of its autonomy. On the other hand, it can be hostage to central authorities if its own system of government is regulated either in the national constitution or in legislation. A democratic system in the autonomous region is a pre-requisite for autonomy. If the regional government is elected by and accountable to the people of the region, it is more likely to stand up for the interests of the region and to negotiate vigorously with the national authorities. A regional democratic system also helps to articulate local aspirations and interests and to define regional identity, which are now widely recognised as critical to the safeguarding of autonomy. The manner in which powers are divided between the centre and the region also impacts on autonomy. Autonomous regions prefer a clear division of powers, to minimise legal controversies, and to be able to pursue regional policies on their own, without having constantly to worry about legal challenges or negotiations with the centre. They therefore want to avoid significant areas of concurrent powers, which the centre tends to dominate. Realising that controversies and disputes about jurisdiction and power cannot be avoided, autonomous regions want independent institutions like courts to adjudicate disputes. The maintenance of boundaries between the centre and the region, central to autonomy, should be the responsibility of bodies which are disinterested in the question, not of a body that is interested in the outcome, and which have both professional competence and moral courage for this difficult, politicised task. Many autonomous regions want to be left alone, to do their own thing. They want a distancing from the centre. Except for tiny regions, this is not a good strategy as they forfeit any influence on decision making at the national level many such decisions are likely to have a significant impact on the fortunes of the region. Where a region can play a role at the centre, it is also able to protect its autonomy. In some cases, small autonomous areas are given special facilities or status at the national level, so that their voice can be heard, and inter-governmental institutions are established for consultations and negotiations. On most of these components, the HKSAR does not do so well. Limitations of space prevent me from examining each of these in relation to Hong Kong, although I hope to show how their absence has so negatively impacted on prospects of autonomy. I begin by examining constitutional foundations of autonomy and the unequal custodianship of them by the HKSAR courts, emphasising legality and the more politically directed Standing Committee of the National People's Congress. Constitutional Foundations of Autonomy The settlement of the Hong Kong question was negotiated within a
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framework which was originally formulated for China's reunification of Taiwan. China, realising that Taiwan, with its considerable resources and defence capability, would not be an easy prize, had consequently offered what it believed was a generous package. Deng (1993) said: "The concept of 'one country, two systems' has been formulated according to China's realities, and it has attracted international attention. China has not only the Hong Kong problem to tackle but the Taiwan problem. What is the solution to this problem? Is it for socialism to swallow up Taiwan or for the 'Three People's Principles' preached by Taiwan to swallow up the mainland? The answer is neither." This remarkable realism and flexibility, grounded in article 31 of the then newly enacted Chinese Constitution, certainly gave reason for optimism about Hong Kong's autonomy, as a show case for "one country, two systems". The Basic Law does indeed confer upon Hong Kong many indicia of semi-sovereignty. It allows Hong Kong the right to determine its own immigration policies and to issue its own passports. Hong Kong has its own flag, currency and stamps. It has also, in the form of "the permanent resident of Hong Kong", its own semi-citizenship, to which are attached important rights that are denied to other Chinese citizens. Its availability to non-Chinese, in the recognition of Hong Kong's cosmopolitanism, is a remarkable acknowledgement of the identity and distinctiveness of Hong Kong. Hong Kong is granted the common law, the use of the English language, and a comprehensive set of rights and freedoms. It is also granted very considerable powers of external affairs. More than symbols, these provisions are the foundations of and are supported by an extraordinary range of substantive powers. They include almost total control of the economy, monetary and tax affairs, transport (including aviation and shipping), social policies, education, health, sports, and so on. Only foreign affairs and defence have been retained by the Central Authorities. Hong Kong's autonomy is bolstered by strong constitutional guarantees. First, there is the Sino-British Joint Declaration which imposed international obligations on China. Second, there is the Basic Law. Realising that the second of the "two systems" could not be accommodated within the PRC's constitutional and political system driven by a command economy and the rule of the Communist Party, article 31 as a new General Principle was adopted as part of the 1984 Constitution to establish special administrative regions outside the basic framework of the Constitution. Article 31 is general and brief, as it was intended to be used for differing circumstances of territories identified for reunification. It merely says that the arrangements to be made by the NPC for a special region would be specified "in the light of specific conditions". It seems sufficient authority for the proposition that, when examining the constitutional status and arrangements for a special administrative region, one should turn primarily not to the PRC Constitution but to the Basic Law enacted by the NPC.
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Support for this approach is to be found in the Basic Law with its frequent statements that the institutions and powers of Hong Kong, and its relationship with the Central Authorities, are to be "in accordance with the provisions of this Law", meaning the Basic Law (articles 2, 3, 6, 11, 12 and so on). Additional support is to be found in article 11 which, in its last paragraph, prescribes that "No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene" the Basic Law. Nor could the NPC contravene the Basic Law, for the only Mainland laws that can be extended to Hong Kong are "confined to those matters relating to defence and foreign affairs as well as other matters outside the autonomy of the Region as specified by this law" (article 18 (3)). Even this could only be done after consulting the Committee for the Basic Law and the Hong Kong government. Even more dramatically, the proviso in article 159, dealing with the NPC's power to amend the Basic Law, is that "No amendment to this Law shall contravene the established policies of the People's Republic of China regarding Hong Kong" (which were formulated in the Sino-British Joint Declaration). The Chinese Constitution itself imposes no restrictions on the power of the NPC to amend the constitution. The Basic Laws enacted under article 31 of the Chinese Constitution are the only Chinese laws which provide for their own mode of amendment. Article 31 has therefore to be read as providing a mechanism for opting out of portions of the Chinese Constitution in relation to special administrative regions and thus enabling great flexibility in the design of their philosophies, powers and institutions. A Decision of the NPC at the time of the adoption of the Basic Law expressly affirms the constitutionality of the Basic Law and quotes article 31 for it. Confirming the validity of a law that it has passed may seem odd. But the NPC must have realised that many sections of the Basic Law were incompatible with the Chinese Constitution and wanted to put beyond doubt the integrity and validity of the Basic Law. It said that "The systems, policies and laws to be instituted after the establishment of the Hong Kong Special Administrative Region shall be based on the Basic Law of the Hong Kong Special Administrative Region". This injunction is not restricted to the acts of the HKSAR. This can only be read as giving an especially high status to the Basic Law, and implying that when there is a conflict between the Basic Law and the Constitution, the former is to prevail. Instead of reading the Constitution into the Basic Law, the Basic Law has to be read into the Constitution for the latter's application in Hong Kong. This is also a better approach as regards the style of drafting, for it obviates the necessity of going through the entire Constitution and expressly dis-applying parts of the Constitution. The "one country, two systems" rests therefore on a remarkable sharing and diffusing of the internal sovereignty of the PRC. Ji Pengfei's speech to the NPC when introducing the draft Basic Law explicates clearly the reach of the sovereignty of the Central Authorities over Hong
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Kong, necessary only to maintain the "one country", which leaves ample room for genuine and effective autonomy. But this form of high guarantee is problematic. The guarantee is stated in the Basic Law, not the Constitution, which stands at the top of the hierarchy of laws. Beijing was not persuaded by those who wanted the guarantee stated in the Constitution, perhaps even as a separate chapter on Hong Kong. Moreover, the scheme for the enforcement of the Basic Law poses various difficulties, particularly those provisions which deal with the relationship between Beijing and the HKSAR, where the final word is with the NPC. Beijing has armed itself with various points of intervention in Hong Kong under the Basic Law itself which undermine autonomous decision making in Hong Kong. Most fundamentally, this kind of constitutional pluralism is antithetical to the Chinese communist mode of government and administration, which brooks no limit to the power of the Chinese Communist Party and its principal state agency, the NPC. Curiously, Britain itself does not understand the nature of constitutional autonomy, as its fundamental principle of state organisation is the sovereignty of parliament, from which no derogation is allowed. It is not therefore surprising that the understanding of article 31 described above did not survive for long, swallowed up in the celebrations of the sovereignty of China, as if Hong Kong were its colony. Even if article 31 had not been killed, Hong Kong's autonomy would at best have been greatly limited given the very provisions of the Basic Law. I first turn to its demise, and then examine certain Basic Law features which constantly threaten autonomy. The Hong Kong Legal and Judicial System and the Rules for the Interpretation of the Basic Law Britain used the negotiations with China for the transfer of sovereignty to establish a strong legal and judicial system for Hong Kong. Britain deliberately and carefully cultivated the ideology of the rule of law under the common law system, at first to legitimise colonial rule and later (in the period leading up to the change of sovereignty) as a substitute for democracy (since neither Britain nor China was ready to concede full democratic rights to the residents of Hong Kong). British officials in Hong Kong and London praised Hong Kong's legal system, a bulwark against arbitrariness and oppression. The annual ceremonies marking the opening of the legal year became celebrations of the common law (Ghai 1993). Chris Patten, the last governor, not only introduced important legal reforms but raised the panegyric on the rule of law by several decibels. He claimed that Britain had laid the foundations for the prosperity of the people through an effective legal system: "We have demonstrated to the world the effectiveness of the Hong Kong way of doing things a mixture of political and economic
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freedom under the rule of law". On another occasion, he said: "The bedrock, the bedrock of your way of life is the rule of law that guarantees fair and equitable treatment for everyone. It governs all your dealings, personal and financial. You have an independent judiciary in which every individual can have confidence. Because no one is above the law; no politician, no business leader, no Governor; because no one is above the law, the law serves everyone".2 The positive picture of the common law provided a sharp contrast to what were widely perceived in Hong Kong as the weaknesses, indeed the despotic nature, of the Chinese legal system. The latter system was perceived to be driven by the ideology and policies of the Chinese Communist Party. There was no separation of powers, nor could there be given the monopolisation of power by the Party. There was said to be no autonomy of law or its institutions. It was hard to distinguish between law and policy. The judiciary was not independent, being merely an extension of the Party. The legal system did not protect property or other rights of the people. The whole system, it was assumed, was marked by capriciousness, the very opposite of the predictability and fairness of the common law. Perhaps China thought that the version of the rule of law based on the common law was essential to capitalism, and was prepared to accept a very considerable entrenchment of the common law. The Basic Law makes the common law a principal source of laws. Several provisions expressly provide for the application of the common law and the continuation of the previous legal and judicial systems (articles 8, 18, 19, 80-96 & 160). There is provision for judges from other common law countries to sit on the Court of Final Appeal (CFA) and, in practice, there is always one such judge, chosen from a list of some of the most distinguished common law judges (article 82) (all from "white" jurisdictions!). Permanent judges at all levels of court may be recruited from other common law jurisdictions (article 92) a broader authorisation to recruit foreigners than is permitted in respect of other officials. The HKSAR may make provision for lawyers from outside Hong Kong to practice "on the basis of the system previously operating" presumably from prescribed common law countries (article 94). Courts are free to refer to precedents of other common law jurisdictions (article 84). The jury system has been preserved, although the jury does not play an important role (article 86). The scope of the jurisdiction of Hong Kong courts is very wide, and includes the interpretation and enforcement of the Basic Law itself, including an impressive range of human rights. Importantly, the judiciary enjoys a high degree of independence, "free from any interference" (article 85). Judges are appointed on the recommendation of an "independent commission composed of local judges, persons from the legal profession and eminent persons from other sectors" (article 88). They must be appointed on the basis of their judicial and professional qualities (article 92). Judges cannot
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be dismissed, except for inability to discharge duties or for misconduct as determined by a judicial tribunal set up by the Chief Justice; and, in the case of the Chief Justice, the tribunal is to be appointed by the Chief Executive (article 89). In addition, the Chief Justice and other judges of the CFA and the Chief Judge of the High Court need the approval of the Legislative Council for both appointment and dismissal (article 90). Hong Kong's legal and judicial system was thus completely insulated from the Mainland courts. Hong Kong courts have the power of "final adjudication", and no appeals lie to any Mainland court (articles 2 & 158). With the exclusion of most Mainland law from Hong Kong, all these provisions add up to a formidable legal and judicial system. Andrew Li, the person appointed as the Chief Justice directly from the Bar, was widely regarded as having impeccable professional credentials and independence of mind. He was fully committed to the independence of the judiciary and determined to make the CFA one of the most distinguished common law courts in the world. All this augurs well for rights and autonomy. Yet, despite Hong Kong courts' comprehensive jurisdiction over Basic Law questions, its ability to protect autonomy is severely restricted by the powers of the Standing Committee of the National People's Congress (NPCSC). As far as the Basic Law is concerned, the final authority for its interpretation is the NPCSC. The competencies of the Hong Kong courts and the NPCSC are dealt with in article 158, which has proved the most contentious provision. The responsibility for interpretation is divided between the NPCSC and the Hong Kong courts (article 158). Within the framework of overarching powers of the NPCSC to interpret any provision of the Basic Law, it authorises the Hong Kong courts to interpret any provision during adjudication. However, the court from which no further appeal is possible cannot interpret provisions dealing with the responsibilities of the Central Authorities or the relationship between them and the HKSAR. If the interpretation of any such provision will "affect" the judgment, then that court must ask the NPCSC to provide an interpretation of the provision and then apply it. This procedure only applies to a court from which there can be no further appeal, which in most cases would be the CFA. Although much of the discussion on interpretation has focussed on article 158, it is necessary to note that other parts of the Basic Law also provide for an interpretative role by Beijing authorities. The NPCSC had to decide at the birth of the HKSAR which colonial laws would be repealed for inconsistency with the Basic Law (article 160). When a Mainland law is extended to Hong Kong, there must be a determination that the law relates to defence, foreign affairs or other matters outside the autonomy of the HKSAR (article 18). Law passed by Hong Kong's legislature may be reviewed by the NPCSC for consistency with the Basic Law and declared invalid if inconsistent (article 17). Questions of interpretation would also
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arise in relation to the last paragraph of article 159, dealing with amendments of the Basic Law, for no amendment may contravene the "established basic policies of the People's Republic of China". In this situation, the final power of interpretation would be that of the NPC itself. Thus the power of interpretation is intertwined deeply in the relationship between Beijing and Hong Kong and it is not simply about the meaning of laws but about power relationships. The Basic Law is primarily about control and not autonomy, as is obvious in the provisions about Beijing's control over the Chief Executive, senior public servants, and the Legislative Council. But the independence of the judiciary and the total unacceptability of a role for the Mainland courts, meant that the Hong Kong courts could not be so easily subordinated. The power of interpretation plugs this gap, in addition to performing other functions. The NPCSC is to be assisted by the Committee of the Basic Law (CBL) which acts in an advisory capacity to the NPCSC (see NPC Decision of 4 April 1990 and articles 17, 18, 158 & 159 of the Basic Law). The CBL consists of six Mainlanders and six Hong Kong residents. The NPCSC has to consult the CBL before rejecting an ordinance of the Legislative Council (article 17), adding or deleting a national law applicable to Hong Kong under Annex III (article 18), interpreting the Basic Law (article 158), or amending it (article 159). In that regard, the role of the CBL might be regarded as quasi-judicial. From this account, it is obvious that the NPCSC has ultimate control over the validity of Hong Kong laws. The fact that it can decide on the validity of any Hong Kong law by reference to the Basic Law and Mainland authorities means that China can determine what the law in the HKSAR will be. If this is a correct interpretation of the legal position, it demonstrates the total subordination of Hong Kong to China. If China were to make the full use of these possibilities, then the autonomous application of the common law in Hong Kong would be impossible, and the common law as we know it would cease to exist. In practice, China has desisted from interpretations of the Basic Law provisions closely connected to the common law (largely in the private law areas). The Demise of Article 31 On the first day the courts met after the transfer of sovereignty, the government, in the shape of solicitor general Daniel Fung, tried to destroy Hong Kong's autonomy. The defendants on a common law conspiracy charge argued for the dismissal of the charge on the ground that the common law had lapsed, as the authority for its continuation was an act of the Provisional Legislative Council established by the NPC instead of the legislature provided for in the Basic Law (HKSAR v Ma Wai Kwan David [1997] 2 HKC 772). The case was clearly of major political significance, as China had violated the Basic Law in setting up the provisional legislature.
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The government argued that the court could not review any Chinese laws or decisions, as China was the "sovereign" over Hong Kong (regardless of the violation of the Basic Law). The Court of Appeal accepted the sweeping proposition, which was unnecessary as the case could have been disposed of on other grounds. It went even further and extended the benefits of the "sovereignty" doctrine to subordinate Chinese bodies, especially if the acts of these bodies were ratified by the NPC (however oblique the ratification, as in this case). Soon afterwards, judges began to question this proposition in a series of cases on the right of abode in Hong Kong of children born on the Mainland to permanent residents of Hong Kong, given under article 24(3) (Ghai 2000: 15-19). A Hong Kong law, passed by the Provisional Legislative Council, restricted the right of abode of a child in the Mainland born to a parent who had the right of abode in Hong Kong, by making that child subject to the Mainland procedures (and approval) for entry into Hong Kong. It also specified that, to be entitled to the right of abode by virtue of a parent's right of abode, the child had to be born during the period when the parent had a right of abode. The Court of Appeal judges began to express doubts about the correctness of their opinion in the Ma case. These Mainland children had a clear right under the Basic Law to abode in Hong Kong. But there was a Chinese law which required Mainlanders wishing to migrate to Hong Kong to seek the approval of the Chinese authorities (and a similar provision in article 22 of the Basic Law). The critical question was whether the need for approval applied to those who had a guaranteed right of abode; the government argued that it did. By the time the case reached the CFA, lower courts had cast considerable doubt on the Ma doctrine but upheld the need for approval. In a magisterial unanimous decision, the CFA held that no approval was necessary (Ng Ka Ling v Director of Immigration [1 HKLRD 315]). The judgment set out the fundamental principles for the interpretation of the Basic Law as a constitution, the centre piece of which was the "purposive approach" and, particularly with regard to the protection of rights, a "generous" approach. The CFA asserted the jurisdiction of the Hong Kong courts to review any legislative acts of the NPC or the NPCSC for consistency with the Basic Law and to declare them invalid if found inconsistent. Indeed, it said that they had the duty to do so. The CFA was careful to found its conclusion by reference to the act of the NPC (the "sovereign") in enacting the Basic Law which vested the courts with this jurisdiction. The court relied on article 31 of the Chinese Constitution; the Basic Law enacted under it had distributed and limited the power of the NPC. The court said that the courts' jurisdiction to enforce and interpret the Basic Law necessarily entailed jurisdiction over acts of the NPC or the NPCSC to ensure consistency with the Basic Law. The robust and clear statement of its jurisdiction got the CFA into trouble
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with those who thought that it had defied the authority of the NPC and set itself above the "sovereign". The judgement was criticised by Hong Kong deputies to the NPC and both the Mainland and the Hong Kong members of the Basic Law Committee. Four leading Chinese lawyers, advisers to Beijing and self-appointed "guardians" of the Basic Law, called the decision "wrong" and a challenge to the status of the NPC, its Standing Committee, and the principle of "one country, two systems". It was well known that Beijing was most upset. In a most unusual procedure, the HKSAR government asked, and the court agreed, to "clarify" the parts of its judgment which related to the NPC and the Standing Committee. The court said that it accepts that it cannot question the authority of the NPC or the NPCSC to "do any act which is in accordance with the provisions of the Basic Law and the procedure therein" (Ng Ka Ling v Director of Immigration (No 2) (1999) 2HKCFA 141 at p 142). Put it in this form, the clarification did not detract from its earlier judgment, as was widely acknowledged in Hong Kong. The "clarification" was seen purely as an act to placate the Mainland authorities; and it was seen to have served its purpose. But that was by no means the end of the story. The ruling in the original Ng Ka Ling case still stood. The HKSAR government did not like it, as it feared that a large number of children in the Mainland, at least 1.7 million, would seek to enter and settle in Hong Kong and create acute social problems.3 So it requested the State Council to interpret the Basic Law, which amounted to an appeal to the NPCSC against the decision of the CFA.4 It rejected the possibility of seeking an amendment of the Basic Law as it would take too long, as the NPC only meets once a year for a short period and a preliminary process under article 159 would have to be followed. In justifying a re-interpretation of the Basic Law, it was at pains to state that an interpretation was not an amendment5 (as it was customarily understood on the Mainland). From the rather torturous reasoning of the government, it was obvious that an interpretation was seen as a way out of what it regarded as a difficult situation, quite regardless of the legal niceties. The whole tone of its statements implied that the interpretation would deliver what the government sought. Beijing duly obliged. The NPCSC stated that the Mainland laws regulating the entry of a Mainland person to Hong Kong applied to children entitled to a right of abode under the Basic Law. It also held that the legislative intent was to extend the right of abode to a child only if at the time of the child's birth a parent had acquired the right of abode. It chastised the CFA for not having referred the first matter to the NPCSC for a ruling before its decision, in accordance with article 158, as it concerned the relationship between Hong Kong and the Central People's Government. The NPCSC interpretation and the "clarification" by the CFA effectively killed article 31 as authority for the self-contained nature of the Basic Law. It was no longer politically correct to argue that the Chinese Constitution
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was circumscribed in its application to the HKSAR. The concept of Chinese sovereignty was revived again (it appears in many HKSAR statements about law and politics) and marked the total subjugation of Hong Kong to Beijing. The entire constitutional foundation for autonomy disappeared, interestingly at the instigation of the government of the HKSAR. But the Hong Kong courts did not completely capitulate. Soon afterwards in the flag burning case, the Court of Appeal had to decide whether the provisions of the Chinese legislation on the national flag (promulgated in Hong Kong under Annex III) violated the freedom of expression as guaranteed in the Basic Law. The question whether the Hong Kong courts could review Chinese law was not canvassed, and the Court of Appeal held the relevant provisions unconstitutional. This decision was reversed by the CFA on other grounds (with a strong dissent by Bokhary, JCFA). But the majority decision was widely interpreted as excessively cautious, fearful of provoking another attack from Beijing. If this was so, the CFA has recovered its equanimity, tending to occupy a middle ground between activism and caution, both in domestic constitutional law issues as well those touching on China, as Chen (2006) has stated. I agree with this analysis. The CFA has had to tackle difficult, politically sensitive cases and has on the whole discharged its responsibility with wisdom and distinction. Its jurisprudence is well respected abroad and has been followed in foreign courts. It has been able to attract judges of high calibre, locally and from abroad. At the regional level, it has contributed greatly to upholding the rule of law. But it is less able to do so when Chinese "issues" are at stake, if only because it does not have the final word. The Joint Declaration, built on the basis of article 31 and widely seen as an international guarantee of autonomy, proved a broken reed from the very start. Britain had little interest in supporting autonomy, so long as its economic interests were protected; and pleasing Beijing by ignoring its obligations under the Declaration increasingly became British policy.6 Nor has the international community shown much concern about Beijing's obligations, although Beijing has made numerous reassurances of autonomy to the international community to secure the participation of the HKSAR in international organisations and juridical relationships with other states, critical to Hong Kong's place in the global economy (Ghai 1999: ch 11). Uses of the Power of Interpretation7 Although rooted in the Chinese Constitution, the NPCSC's interpretation powers were probably intended to perform a different kind of function in Hong Kong. In the Mainland, the government has various methods to carry out its policies: laws, directives, acts under the hegemony of the local party mechanisms, nomenklatura, the subordination of the judiciary, and so on. It seems not to matter which method is applied, as there is no effective
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challenge to any policies of the government or the party. Most of these methods are not possible in relation to Hong Kong (even though China exercises decisive control over the Chief Executive). Given the importance of the ideology of the rule of law, China had to devise a method of control that would be seen to be "legal" and reasonable. It was, on the one hand, essential to keep intact many of the provisions about the independence of the judiciary and the principles of the common law, as well as the previous expansive jurisdiction of the Hong Kong courts. On the other hand, the Hong Kong legal system, especially in the jurisdiction of the CFA, had to be subordinated to Beijing. The reason of one Mainland member of the Basic Law Drafting Committee for limiting the jurisdiction of Hong Kong courts, as noted in the records of the Drafting Committee, was that "since Hong Kong courts have been given the power of final adjudication, there was concern that the courts of the SAR might be 'wrong' in their interpretation of the Basic Law, in which case the matter could not be corrected",8 presumably not politically rather than juridically. 9 For this purpose, the NPCSC's power of interpretation could be tailored, by reference to civil law traditions and the system of adjudication in the EU, to emphasise the normality of the provision although these analogies are quite inappropriate. Few Hong Kong members of the Drafting Committee understood the scope or the dynamics of the Chinese method of interpretation. "Interpretation" is not defined in the constitution. In 1955, the NPCSC issued a Resolution on the Interpretation of Law. This Resolution made clear that where the limits of articles and decrees needed to be further defined or additional stipulations needed to be made, the NPCSC should provide the interpretation or additional provisions by decree. Thus the distinction between clarification and law making a distinction central to most legal systems was blurred.10 There was little reference during the drafting of the Basic Law, as far as one can tell, to the power of the NPCSC to change the law by interpretation, even though at that time the 1955 Resolution was still valid.11 The power of interpretation has been used in crucial instances by Beijing to achieve its own objectives in managing the politics of Hong Kong.12 The Standing Committee has made six interpretations of the Basic Law or law relating to the Basic Law. The first was before the Basic Law came into force; it was made under its authority in the Chinese Constitution and involved the interpretation of the Chinese Nationality Law in its application to Hong Kong (where the aim was to strengthen Beijing's alliance with its erstwhile opponents who had migrated to other countries). The second was made at the commencement of the Basic Law to determine the validity of previous laws under article 160 (with the aim of undoing the Patten reforms). The third was on the right of abode of children on the Mainland born to Hong Kong permanent residents, as already discussed (pandering to the well-off of Hong Kong afraid about the influx of children of the poor). The
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other three were made under article 158(1), two on the timing, principles and scope of constitutional reform (with the purpose of dampening the reform movement), and the other on the terms of the tenure of the Chief Executive (in order to acquire greater Beijing control over the process and the office). Collectively, these had the most fundamental effect on the political landscape, the formation of alliances, Beijing-Hong Kong institutional relationships, and ultimately the sanctity of the Basic Law itself. Chinese Nationality Law The interpretation of the Chinese nationality legislation (applicable in Hong Kong by virtue of Annex III) extended the right to those not entitled to it, on the natural meaning of article 24. A number of Hong Kong Chinese, unsure of their future on the resumption of Chinese sovereignty, left the territory before 1 July 1997 in order to settle abroad (primarily in the UK, Canada, US and Australia). Many took the nationality of these countries and established their homes there. Numerous of them then changed their mind and wanted to return to Hong Kong. But they wanted to return with the right of abode, so they could enjoy the full rights of "citizenship", including holding public office. However, under the Basic Law, they could not resume the right of abode, as they could not bring themselves under any of categories in article 24 the two most favourable to them being categories in subsections (1) and (2) concerning Chinese citizens born in Hong Kong or Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of seven years. As the "returnees" had lost Chinese citizenship on acquiring foreign citizenship and settling abroad, they had ceased to be Chinese citizens under article 9 of the Chinese Nationality Law. Unlike the children stranded in the Mainland, most returnees were persons of wealth and influence whom China was anxious to cultivate, particularly as it was at the same time fighting Governor Patten. The Preliminary Working Committee (many of whose members hold foreign passports) recommended (without any legal basis) that if a returnee returned before 1 July 1997, he or she would be treated as having the right of abode. This view appears to have been accepted by the Hong Kong and Macau Affairs Office in Beijing. However the Preparatory Committee broadened the recommendation and removed the deadline of 1 July 1997 (without, it would seem, any serious analysis of the Basic Law). It proposed that if a migrant or indeed an ethnic Chinese resident in Hong Kong with a foreign passport did not declare his or her foreign nationality to the Immigration Department in Hong Kong (and if they did not use the foreign passport for entry to and exit from the HKSAR or any other part of the PRC) they would be regarded as Chinese nationals and would retain their right of abode. But the corollary is that they would have to give up their right to foreign consular protection something China had been particularly anxious to ensure.
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The NPCSC adopted an interpretation of the Nationality Law to give effect to this recommendation on 15 May 1996 ("Interpretation on Several Questions Relating to the Implementation of the Nationality Act of the PRC in the Hong Kong Special Administrative Region"). However, the same generous treatment was not given to those Hong Kong Chinese who were granted British citizenship under special British legislation in the wake of Tiananmen Square.13 Decision on Previous Laws On 23 February 1997, the NPCSC adopted a decision under article 160 on existing laws which would not be adopted as the law of the HKSAR because they were inconsistent with the Basic Law.14 As with the previous two interpretations, the NPCSC followed the recommendations of the Preparatory Committee; and, as in those cases, little regard was paid to the provisions of the Basic Law. A considerable number of laws were made in the final years of British rule, in part to introduce political and legal reforms. These were initiated by Governor Patten against the wishes of the Chinese authorities which used the opportunity provided by article 160 to curb or repeal the most important of these. The Chinese had intended to repeal the Bill of Rights which was passed in 1991, but were dissuaded from doing so (including by me). However, four sections were repealed, dealing with the status of the Bill of Rights, guidelines on its interpretation, and its relationship with other ordinances. In the end none of them had any serious negative effect, for with the repeal the gap was filled by common law principles, which also suggests that those who recommended the repeal did not really understand the common law. But what is obvious is the intense dislike of the Chinese authorities to the Bill of Rights, despite that both the Joint Declaration and the Basic Law require a strong protection of human rights. The reforms in the rights of association, assembly and demonstrations were also removed, creating gaps and confusion in the law, but paving the way for the Provisional Legislative Council, firmly under Beijing's control, to introduce restrictive legislation. Repealed, too, was the entire corpus of legislation on elections, doing away with the Patten reforms towards universal franchise, and again clearing the path for the Provisional Legislative Council to re-introduce discredited elements of the colonial system (which continue to plague Hong Kong politics to this day). In making these decisions, the NPCSC clearly exceeded its jurisdiction, which was confined to removing laws which were inconsistent with the Basic Law. It removed several laws which were more consistent with the Basic Law than the older colonial laws, in order to comply with the Basic Law. Beijing undid all that, showing its preference for restrictive colonial laws over the reforms which carried forward the Basic Law provisions. Also,
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the NPCSC modified or added to laws, which goes beyond declaring laws invalid, thus usurping the responsibility of the HKSAR legislature. In no case did the NPCSC give any reasons or justifications for the decisions. Interpretations on Constitutional Reform One of the most contentious issues during the drafting of the Basic Law was the political system, with considerable support for universal franchise and one-person one-vote. This would have ended the system of functional and appointed members of the legislature and an executive elected by the people. This view was resisted by Beijing and many Hong Kong delegates who feared a democratic system in which their own privileged position would be undermined. A compromise of sorts was reached, under which the Basic Law guarantees as the "ultimate aim the selection of the Chief Executive by universal franchise", although on the nomination of a committee (article 45(2)). A similar promise for the election of all members of the Legislative Council is included in article 68(2). However, in both cases the "ultimate aim" is subject to the "principle of gradual and orderly progress". Until early 2007, Annex I set out the method for the election of the Chief Executive and Annex II for the Legislative Council. Since then, if "there is need to amend" the methods for either of them, the amendments must be made with "the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive" (para 7 of Annex I and section III of Annex II, respectively). In the case of amendment to the election of the Chief Executive, the approval of the NPC is necessary, but not in the case of the Legislative Council. As the 2007 elections for the Chief Executive and the 2008 elections for the Legislative Council came closer, there were renewed calls for universal suffrage, or at least for significant progress towards it, as well as resistance to any change. But brakes on the movement for reform were swiftly applied by Beijing in collaboration with the Hong Kong administration. During Chief Executive Tung Chee-Wah's "duty" visit to Beijing in December 2003, Chinese President Hu Jintao informed him of the serious concerns and principled position of the Central Authorities regarding Hong Kong's constitutional development,15 presumably in reaction to Hong Kong demands for democracy. On 7 January 2004, the Chief Executive set up a Task Force on Constitutional Development consisting of the Chief Secretary, the Secretary for Justice and the Secretary for Constitutional Affairs. Its tasks were to "examine in depth the relevant issues of principle and legislative process in the Basic Law relating to constitutional development, to consult the relevant departments of the Central Authorities, and to gather the views of the public on the relevant issues". The first report of the Task Force was issued in
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March 2004, which contained its analysis of the relevant provisions of the Basic Law and views of the public. Its second report issued a month later contained the recommendations on the criteria for constitutional progress. The ground for its insertion in the decision making process on future developments was laid in an interpretation of the NPCSC on 6 April 2004. First, it clarified that reforms could commence in 2007, and thus settled the controversy over whether reforms had to wait until elections after 2007. Second, it ruled that there was no inevitability about reforms in 2007, as the formula that "if there is need" assumes that there may in fact be no need. Third, it set out the procedure for initiation of the reform process. The Chief Executive was to make a report to the NPCSC on whether there is need for amendments to the electoral processes. Based on the report, the NPCSC would make a determination "in the light of the actual situation in Hong Kong and in accordance with the principle of gradual and orderly progress". Fourth, it ruled that it is up to the Chief Executive to introduce legislative bills for amendments into the Legislative Council; and, pending amendments, the existing system would continue. The Chief Executive made his report on 15 April 2004. He reiterated the recommendations of the Task Force which he described as government policy. The recommendations, though based on the conclusion that amendments should be made, were extremely restrictive and conservative. They included giving complete veto to the Central Authorities, confining Hong Kong initiatives to the Chief Executive, and confirming Chinese control over the appointment and powers of the Chief Executive and much more, such as that any proposed amendments must not bring about any adverse effect to the economy, monetary affairs, public finance and other financial matters as prescribed in the Basic Law. They did not represent any significant progress towards full electoral democracy. On 26 April, the NPCSC made its determination. This was not strictly speaking an interpretation but a "decision" made under the framework set out in the previous interpretation (after, as stated by the NPCSC, wide consultations, including with the Committee for the Basic Law). Nevertheless, its effect is that of an "interpretation", for it purports to establish the framework for determining when and to what extent reforms would be allowed. The NPCSC adopted the general, conservative principles in the Chief Executive's report. It then recounted the considerable progress towards democracy in Hong Kong, with a committee of 800 for the selection of the Chief Executive replacing the original committee of 400, and the achievement of parity between functional and geographical constituencies. Further progress must await the consolidation of these gains, although of course these developments are no more than those expressly provided in the Basic Law itself, and the expectation was that further reforms would follow. The NPCSC ruled out universal suffrage unless there is consensus on it (which
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gives a veto to the conservative elements or other protgs of Beijing). With this preamble, the NPCSC decided that there would be no universal suffrage for elections for the Chief Executive (2007) or the Legislative Council (2008). It also ruled out any changes in the procedure for motions and voting in the legislature which reinforced the control of the government over the legislature as well as the influence of the functional constituency members in the business of the legislature. However, it said that within this restrictive framework, amendments could be made for elections in 2007 and 2008. On the basis of this decision, the Task Force continued its deliberations, producing its third report in May 2004 which set out the amendments that could be made within the parameters established by the NPCSC and seeking public comments or endorsement of them. The possible amendments seemed of little consequence, just tinkering with the existing system. In its fourth report in December 2004, it reported on the views of the public (based on 480 submissions) which predictably showed no consensus, even on the rather unimportant options that were offered to the people. Its fifth and final report was published in October 2005 in which it offered its own recommendations and proposed a timetable for implementation, with the introduction of the necessary bills by the government by early 2006. Its recommendations were very conservative, with the exception of a larger role for district councillors both in the Election Committee and in the Legislative Council, devoting all new functional constituencies to them. The existing sectors for the Election Committee were to be retained (despite many recommendations on reorganisation), although the membership would be increased to 1600. The number of members essential for a valid nomination of a candidate remained at the same proportion of total membership (ie, 200), although many had recommended a lower threshold to increase the prospects of competitive elections. It also recommended against the removal of the rule requiring the Chief Executive to dis-affiliate from a political party. On the positive side, it proposed an election even if there was only one candidate. The Task Force rejected the proposal for individual voting in functional constituencies, as this would defeat their purpose. It also rejected establishing a timetable for universal franchise since there was no consensus on this. It refused to consider the reorganisation of functional constituencies for fear of disputes (as there was a "plethora" of proposals), but it did recommend the consideration of the long term future of functional constituencies. In the circumstances it is not surprising that its proposals failed to win sufficient support in the Legislative Council. The result was that elections would be held under the existing rules. It marked, at least for the time being, the end of the movement for constitutional reform. It is clear that, although Annexes I and II appeared to give the initiative to the people of Hong Kong for constitutional reforms within the terms of articles 45 and 68 (and in the latter case, not giving a veto the NPCSC), as a
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result of its own interpretation, the NPCSC placed itself in the driving seat (despite the conflict of interests). As between Hong Kong institutions, it gives the pre-eminent role to the Chief Executive that is not obvious from the Basic Law. There is also considerable evidence of collusion between Beijing and the Hong Kong administration. The latter seems unable or unwilling to take a position independently of Beijing, under-scoring the point that Hong Kong institutions enjoy no autonomy. The introduction of the criteria for democratisation by the NPCSC significantly changes the framework for progress on democratisation. This is a serious derogation from the provisions and promises in the Basic Law. The interpretation has given Beijing a key role in the reform process that the specific provisions of the Basic Law do not. The process was intended to start in Hong Kong, and as regards the elections for the Legislative Council, the NPCSC was given no role other than to be informed that an amendment had been made. Under the interpretation, the NPCSC can prevent even the initiation of the process. Thus, the NPCSC's power of interpretation has turned out to be crucial, with a huge reservoir of arbitrary decisions to further the agenda of Beijing in contravention of "Hong Kong people ruling Hong Kong". Interpretation on the Term of Office of the Chief Executive In April 2005, the NPCSC, on the request of the Chinese government, made an interpretation of article 53(2) on the tenure of a Chief Executive who assumes office before the full term of his or her predecessor has been completed. The issue arose when Chief Executive Tung Chee-wah resigned on the grounds of "ill health", although it was widely believed that he was forced out by Beijing as he had proved to be inefficient, had misread the public mood, and had become a liability to Beijing. For once Hong Kong opinion, among lawyers and politicians, whether "anti" or "pro" China, was that his successor would have a term of five years as stipulated in article 53. However, in the face of this unanimity, the NPCSC ruled that the new Chief Executive would hold office for the remainder of the term of the predecessor. It based this decision on the ground that Annex I assumes that the method of election could be altered in 2007, which would not be possible if the new Chief Executive still had five years to serve. This is an example of the tail wagging the dog. Also, it flies in the face of the decision Beijing took in 1997 to disregard the Basic Law's provisions on the formation of the first legislature when it was dissatisfied with the Patten political reforms (Ghai 1999: 63, 78). An uncharitable interpretation of Beijing's position was that it wanted to keep Tung's anointed successor, Tsang Donald, on a short leash he had to prove his loyalty before he enjoyed a full term. The Division of Powers and Responsibilities The division of powers and responsibilities is impressive, but the formula
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for the division is not so favourable. There is not a listing of powers, but a formula which brings ambiguity and reduces security, with phrases such as "outside the competence of Hong Kong" and "relations between Hong Kong and China", meaning that questions of relationship will be determined by Beijing. This contrasts largely with the legal niceties of Hong Kong's own internal system, which are rendered powerless in this instance hence the two faces of "legality" in Hong Kong. All of this is compounded by uncertainties as to what provisions of the Chinese Constitution and Chinese law apply to Hong Kong. The certainty and predictability of the Basic Law have gone. The Basic Law does not have a list of legislative or executive powers that belong to the HKSAR. At one time this was proposed and a list appeared in the draft of the Basic Law tabled at the Basic Law Drafting Committee. But the effort was abandoned; the fact was that most powers would lie with the HKSAR under the "two systems" theory. Many of the powers that the HKSAR exercises are mentioned in the Basic Law, sometimes to indicate restrictions within which they must be exercised for example, the power to tax but in accordance with "low tax policy". This does not mean that powers which are not expressed as belonging to the HKSAR cannot be exercised by it for example, there is no authority to run a postal service. The approach taken was to specify powers that belong to the Central Authorities, namely defence and foreign affairs (article 15). For the sake of clarity, Mainland laws on these matters that prevail in Hong Kong are specified in an Annex in the Basic Law. Presumably everything else belongs to Hong Kong, subject to limits, restrictions or guidelines specified in the Basic Law. Additional powers can be conferred on the HKSAR by the NPC, the NPCSC and the Central People's Government (article 20), presumably within areas reserved to the centre. The Basic Law already delegates significant external affairs powers to the HKSAR (article 13 and chapter VII). But the Basic Law also gives the authority to make certain decisions to the Central Authorities that are not strictly speaking "powers" in the sense of jurisdiction. For example, the Central People's Government appoints the Chief Executive (article 15). The Central People's Government can give directions to the Chief Executive (articles 43 & 62 (3)). These are discussed below. So far the picture is fairly clear-cut. But there are three difficulties. The first has to do with the question of "residual" powers, being powers that are not expressly given to the Central Authorities or the HKSAR. My own view is that these powers belong to Hong Kong, since the Basic Law limits the Central Authorities to defence and foreign affairs. However, Chinese scholars have not welcomed this view, saying that such arrangements are possible only in federations which result from a union of previously independent entities. This has not, as far as I can tell, become an issue; but
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if it does, surely the Chinese view would prevail. In fact, when the legality of the Provisional Legislative Council was being contested, the People's Daily (9 May 1996) justified the establishment of the Provisional Legislature on the ground that the NPC had the power under its "residual" powers, since the Basic Law was silent on it! This ignored the fact that the Basic Law had provided in some detail for the first legislature of the HKSAR. The second difficulty arises from three concepts which affect the relationship between the Central Authorities and the HKSAR and go to the heart of jurisdictional responsibilities. The first is the concept "within the autonomy" of the HKSAR, the second is "the responsibility of the Central People's Government", and the third is "the relationship between the Central Authorities and the Region". For example, the jurisdiction of Hong Kong courts is plenary on matters within the autonomy of the HKSAR (article 158). The jurisdiction of the NPCSC to review Hong Kong laws for compatibility with the Basic Law extends only to provisions "within the responsibility of the Central Authorities or regarding the relationship between the Central Authorities and the Region" (article 17). The first two concepts are less problematic than the third. In practice, a broad interpretation has been given to the third, motivated by the desire to increase the scope of the Central Authorities' involvement in Hong Kong affairs (as with the interpretations on the right of abode and constitutional reform). Given the plenary jurisdiction of the NPCSC in the first paragraph of article 158, the distinctions are becoming less critical. The consequence of this trend is of course the diminution of Hong Kong's autonomy. The third difficulty in the division of powers is that the final determinations are made by the NPCSC. It is not a judicial body, and it is not independent of political influence, particularly not of institutions which have an interest in the determinations, such as the Central People's Government, the NPC itself, and even the Communist Party. So when a dispute about powers or jurisdiction arises, the HKSAR is sure to lose. These issues do not arise often, but when they do they are of great moment, which go to the heart of Hong Kong's autonomy. Institutional Arrangements The autonomy of Hong Kong represents a curious contradiction. Of all autonomous or federal units, Hong Kong has the most extensive legislative and executive powers. But it has the least satisfactory rules regarding the institutions of government. There are various aspects to this question, including the organisation of institutions in the region, their relations to the central authorities, and the methods of resolving differences and disputes between the region and the centre. The ability of an autonomous region to exercise its powers properly and to defend its autonomy, legally and politically, depends greatly on institutional arrangements.
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For this purpose, it is important that internal institutions are established on democratic principles, so that the legislature represents the local people effectively, provides a forum for developing local policies without interference from the central authorities, and reinforces the identity of the region. Public opinion fashioned in this way strengthens loyalty to the region, whatever the differences. It is also crucial that the executive is responsible to the legislature, follows policies laid down by it, and is not subordinated to the central authorities. It helps that the region has its own constitution in respect of matters within its autonomy, and is able to reform regional institutions on its own as the need arises. As regards relations with the central authorities, the region should have a proper say at the national level through effective representation in both legislative and executive authorities. Regional voice or voices should be heard at the national level and there should be opportunities to lobby the authorities, particularly on issues which impact on regional policies or autonomy. Mechanisms for settling differences and disputes (of which there are various models, including negotiations and mediation) should not be dominated by one party. When questions of law and constitution arise, the adjudicating body should be both competent and independent and authoritative. On all of these matters, institutional arrangements regarding the HKSAR score poorly (see Ghai 1999: esp chs 4 & 7). The question of interpretation has been addressed above. Hong Kong's institutions are neither fully representative of its permanent residents nor fully independent of China. The lynch pin of the government system is the Chief Executive, in whom is vested all executive authority. The office is heavily dependent on Beijing. Beijing appoints the Chief Executive, can effectively ensure an election through a restricted electoral system which lends itself to manipulation by Beijing, can protect the incumbent against a vote on impeachment by the Legislative Council, and must approve nominees to the Executive Council. The Chief Executive can be directed by Beijing (quite on what is not specified) and is accountable to Beijing. The Chief Executive must periodically visit Beijing to make a report on Hong Kong's administration and submit to public criticism and humiliation. The Tung Chee-wah incident shows that he or she can be kicked out un-ceremonially. In these circumstances, there is little scope for independent initiatives or action by the Chief Executive. The Chief Executive is unable to argue the case for Hong Kong, and all of his or her powers are at the disposal of Beijing. Those aspiring for high office know that preferment comes through Beijing. The Legislative Council is particularly weak. On the one hand, it is subordinated to the Chief Executive who can veto legislation and dismiss it in cases of disagreement. Members cannot remove the Chief Executive by a
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vote of no confidence. Many kinds of bills cannot be introduced by members. The legislature consists of different kinds of members, with a bias towards those elected in small constituencies principally by commercial and professional groups in an effort to slow down the mobilisation of people and the process of democratisation. The functional constituency members are disposed to support the positions of Beijing and the Chief Executive, and their maintenance is crucial for Beijing's control. The rules of procedure in the legislature, particularly rules requiring separate voting by geographical and functional constituency members, display a similar bias, perhaps in the expectation that those groups will support conservative and pro-China policies, and thus buttress a similarly oriented executive. One can understand why Beijing wants to put the brakes on democratisation. There are few institutions for interaction between the Mainland and Hong Kong. Hong Kong representation in Chinese institutions (the NPC, the NPSC and the National People's Consultative Council) is minute. There is no representation in the Central People's Government or other executive authorities. For the most part, such representation is determined by Beijing. Its aim is not so much to enable the representation of Hong Kong people's views as to support Beijing's positions. The institutions are used regularly to attack democratic forces in Hong Kong. Nor is the NPC, which has responsibility for supervising both regional and national governments, ever held an even hand which is not surprising given the absence of the separation of powers. The ease with which Beijing can either marginalise or co-opt a Hong Kong institution is illustrated by its treatment of the Committee on the Basic Law. Hong Kong members (probably appointed after consultations with Beijing) have seldom shown impartiality or objectivity. Most members are chosen for their loyalty to Beijing. When a position which Beijing finds unfavourable is being discussed, they are among the first to start the attack on those who have a different position from Beijing, including attacks on the CFA. The Committee is widely perceived to be a rubber stamp of Beijing's positions. Beijing interferes regularly in Hong Kong affairs. No doubt few significant decisions of the HKSAR administration are made without consultations with Beijing, and some are probably instigated by it. Beijing has intervened in Hong Kong politics, promoting and supporting pro-Beijing parties, taking sides as between political parties. It is not surprising that some of the main threats to autonomy have been initiated or acquiesced in by the Hong Kong administration. The more the administration alienates the people of Hong Kong, the more dependent it becomes on interventions by Beijing. Such interventions have divided and polarised Hong Kong people. They have prevented a proper focus on what is good for Hong Kong as opposed to what is desired by Beijing, and have weakened solidarity and a feeling of being a Hongkonger among Hong Kong residents.
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Conclusion On this tenth anniversary of the HKSAR and the Basic Law, the nature of Hong Kong's autonomy is clearer than it was in 1997. When Hong Kong officials or supporters of China say that the way to deal with the Central People's Government is through quiet diplomacy, not provoking China, they reveal more than they mean to. For it implies that the Central Authorities are unruly, all powerful, unreasonable, and need to be placated. It also implies a lack of transparency and accountability, for matters or deals conducted in secrecy mean that people do not know how the two governments are performing their tasks, in particular whether people's views are being ignored. All of this seriously undermines the constitutional framework for the governance of Hong Kong and relations between it and Beijing. The framework is replaced by parameters established by Beijing, as is evident from the use of the NPCSC's powers of interpretation. It has facilitated collusion between Beijing and the Hong Kong government to undermine democracy and to change the framework for political development, bypassing legal and constitutional processes (such as the amendment of the Basic Law) and establishing unequivocally the dominance of Beijing. During the colonial period with an undemocratic system, activists in Hong Kong turned to the courts for redress, turning political issues into legal issues. Now Beijing turns legal issues into political issues, so that it can use political means, such as interpretations of the NPCSC, to deal with them. The politics of law have been overturned by assertions of hegemony. The foundations of autonomy were built on sand. Notes
1. The institutional factors which tend towards success in autonomy systems are discussed in Ghai (2000a: ch 1). 2. See Flowerdew (1998) for these quotations and an analysis of Patten's rhetoric. See also Jones (2006). 3. In a letter to the State Council of the PRC, the Chief Executive of the HKSAR wrote: "The assessment of the HKSARG is that the admission of these additional people would create enormous pressure on Hong Kong. Hong Kong's land and social resources would not be capable of coping with the demands of such a large number of new arrivals for education, housing, medical and health services, social welfare and other needs. This would trigger social problems and lead to consequences which would have a serious and adverse effect on the stability and prosperity of Hong Kong, and which we would not be able to bear" (reprinted in Chan, Fu & Ghai 2000: 476). The detailed assessment, which was annexed to the letter, is reprinted at pp 274-290. There was considerable public and professional skepticism about the government's figures of relevant children and the assessment of the consequences of their entry.
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4. Neither the Basic Law nor other Mainland laws gives the Chief Executive of the HKSAR the right to refer a matter to the NPCSC for interpretation. The provisions of the Basic Law which were invoked by the Chief Executive to refer the matter to Beijing and seek its assistance did not really bear the interpretation placed on them by him. 5. In a paper tabled at the Legislative Council House Committee (18 May 1999) entitled "Right of Abode: The Solution" (reprinted in Chan, Fu & Ghai 2000: 310319). 6. During the right of abode case, discussed below, in which I was adviser to the legal team arguing the case for the children, an official of the British Consulate approached me to say that during the negotiations on the Joint Declaration, Britain had warned China against free entry of the children, but China had insisted on it "since they were Chinese people". He was perhaps expecting me to use it in my legal opinion which I was preparing then. When I asked him for documentary proof, he refused, pleading confidentiality; and, when asked why Britain was not taking a public position on it as signatory of the Declaration, he smiled sheepishly. 7. This section draws on Ghai (2007). 8. The account here relies on Lee (1998). 9. This is a strange claim since the science of interpretation is little developed, whereas the common law as practiced in Hong Kong has a well developed corpus of principles and doctrines of interpretation. 10. It has been suggested that these broad powers of interpretation were acquired to ensure the flexibility of law. Kong (1991: 498) says that this attitude comes both from the realisation that with rapid economic and social changes the laws has t o be flexible, as well as from the low priority given to law, its essential purpose being seen as serving the communist party's political objectives suggesting a highly instrumental view of law. She writes: "Such an attitude proves that, contrary to the legislators in the West, Chinese legislators do not tend to treat the exercise of the interpretation power as a very sensitive matter". 11. It can be argued that this broader view of the scope of interpretation is incompatible with the Basic Law, given article 159 of the Basic Law restricting the power of the NPC to amend the Basic Law. 12. I examine the theoretical basis and the practical use of the Basic Law provisions on interpretation in Ghai (2007). 13. This paragraph is based on a lengthy discussion in Ghai (1999: 167-172). 14. For a detailed commentary on the Decision, see Ghai (1999: 492-498). 15. Chief Executive's Report on Constitutional Development to the State Council (6 April 2004).

References
Chen, Albert 2006, "Constitutional Adjudication in Post-1997 Hong Kong", Pacific Rim Law and Policy Journal, 15. Deng, Xiaoping 1993, On the Question of Hong Kong, Hong Kong: New Horizon Press. Flowerdew, J 1998, The Final Years of British Hong Kong: The Discourse of Colonial Withdrawal, Basingstoke: Macmillan.
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Ghai, Yash 1993, "The Rule of Law and Capitalism: Reflections on the Basic Law", in Raymond Wacks (ed), Hong Kong, China and 1997, Hong Kong: Hong Kong University Press. --- 1996, Hong Kong's New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law, Hong Kong: Hong Kong University Press, 1999. --- 1999, Hong Kong's New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law, 2nd ed, Hong Kong: Hong Kong University Press, 1999. --- (ed) 2000a, Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States, Cambridge: Cambridge University Press. --- 2000b, "Litigating the Basic Law: Jurisdiction, Interpretation and Procedure", in J M M Chan, Fu Cha & Yash Ghai (eds), Hong Kong's Constitutional Debate: Conflict over Interpretation, Hong Kong: Hong Kong University Press. --- 2007, "The Political Economy of Interpretation", in Fu Haling, Harris, Lison & Young, Simon (eds), Interpreting Hong Kong's Basic Law: The Struggle for Coherence, London: Palgrave Macmillan. Jones, Carol 2006, "Dissolving the People", unpublished paper, University of Hong Kong. Kong, Xiaohong 1991, "Legal Interpretation in China", Connecticut Journal of International Law, 6(2). Lee, Martin 1998, "A Tale of Two Articles", in Peter Wesley-Smith & Albert Chen (eds), The Basic Law and Hong Kong's Future, Hong Kong: Butterworths.

Yash Ghai is Visiting Professor at the University of Hong Kong and the University of Cape Town, and head of the Constitution Advisory Support Unit at the UNDP, Nepal. He is grateful to the University of Hong Kong for a Distinguished Researcher Award and to the Hong Kong Research Council for a research grant which have facilitated the preparation of this article.

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