Anmol Kohli

The recurring Hong Kong protests represent the uncertainty caused by the temporary Basic Law of the city-state, which will only last till 2047. In the shadow of the looming Wuhan Virus emergency, protection of the civil liberties in Hong Kong becomes all the more important.

Introduction

The Hong Kong protests first started when the Fugitive Offenders amendment bill was introduced by the government allowing extradition of Hong Kong citizens to mainland China for trial. This resulted in a controversy as Hong Kong, though a part of the People’s Republic of China, under the “One country, two systems” principle has its own legal system- the Basic Law of Hong Kong, derived from the common law tradition. This bill brought in by the erstwhile Hong Kong government, largely considered to be pro-Beijing, represents a legal conflict regarding the Hong Kong’s legal system being absorbed by China.  However, the same is influenced largely due to the pro-Beijing articles within the Basic Law itself, which if amended effectively would protect the city-state’s autonomy.

This conflict has its roots in the colonial history of Hong Kong. Pertinent questions of identity display themselves in these controversies and recurring protests since the handover of Hong Kong to China in 1997. According to a poll by Hong Kong University, merely 3% of its citizens identify themselves as Chinese. Therefore, the system of laws in Hong Kong needs to be reformed to accurately depict the separate identity of its citizens post colonisation.

However, the protests which made headlines till the end of last year have now been outshadowed by the crisis of the novel coronavirus in Wuhan. In this article, I will first highlight how the protests in Hong Kong have been affected by this emergency, and then argue that the protests in the city-state can be traced to the conflict of legal traditions, lack of democratic development and consequent uncertainty of status and identity of Hong Kong.

Hong Kong post the Wuhan crisis

Beijing’s decision to lock down Wuhan will undoubtedly lead to economic ramifications, which would in turn lead to a reduction in mainland China’s bargaining power with Hong Kong.  SARS – a previous virus originating in China – led to a loss of $40 billion for the country. The novel coronavirus (2019-nCoV) in Wuhan seems to be spreading at a n even greater rate than SARS. Therefore, we can expect a significant drop in the GDP of Hong Kong, especially in trade and tourism, simply due to the city-state’s attachment to mainland China.

Though the number of fatalities and infections in Hong Kong are nowhere those in mainland China, an understandable spread of uncertainty will lead to economic loss. The city-state will, in the event of a greater spread of the virus, become more dependent on Beijing for health and safety measures, thus increasingly ceding its independence to the mainland. Further, the economic costs of the recent protests, which led to a recessionary situation in the city-state, will be amplified by the outbreak of coronavirus.

Over this year, another aspect of the spread could be a greater attack on civil liberties of the Hong Kong citizens by Beijing in the name of protection from the virus. This has historical precedent , as Beijing took the same actions during the SARS outbreak.

A new protest has started to seal the borders of the city-state. However, its pro-Beijing political leaders have resisted the same, much like the SARS outbreak in 2003, when Hong Kong suffered to a greater extent as the outbreak took place in a province bordering the city-state. This is probably due to political pressure from Beijing, as if Hong Kong was in any way autonomous, it would not hesitate to seal its borders to avoid a public health emergency. Therefore, the outbreak is yet another way in which the facade of self-rule of the people in Hong Kong is exposed.

The Structure of Government in Hong Kong – Lack of Democratic Development

The current political situation in Hong Kong may be partially blamed on Britain, which failed to introduce democracy in the city-state at the time of its handover. However, this was also due to the mainland government’s efforts to disallow democratic development in Hong Kong. This is reflected today in the lack of universal adult franchise in the city-state. The Election Committee, which nominates the Chief Executive of Hong Kong, consists of 1200 influential businessmen and other notable elites. 300 of these seats are reserved for members of mainland legislature advisory bodies, like the National People’s Congress, heavily influenced by Beijing. Some other seats are reserved for religious functionaries. Therefore, the system is one where the dominant financial sector, professional and religious bodies cast votes for their representatives. In total, the nominating constituencies of the Election Committee amount to just 3% of the population of Hong Kong.

This effectively results in the city-state having an oligarchical structure of government. At the time of Hong Kong’s handover, the Election Committee was largely separatist, representing the colonial stance and acting as a soft power of Britain into the late 90s. Over time however, the Election Committee has swiftly changed its stance and now is largely considered to be pro-Beijing – the recent landslide election of pro-democracy representatives notwithstanding – presumably due to the greater influence of the mainland as Hong Kong’s share of China’s GDP reduced dramatically on entering the new millennium.

Conflict of Laws in Hong Kong – the Importance of Common Law

Further, Hong Kong’s Basic Law under the “one nation, two systems” scheme will only operate till 50 years after the handover, that is 2047. This gives Hong Kong’s legal status a sense of uncertainty about its future. Therefore, Hong Kong needs to draft new permanent laws and reform the Election Committee into a body which represents the demands of the people more accurately as imagined under articles 45 and 68 of the Basic Law and the principle of “gradual and orderly progress”. These articles, relating to the election of the Chief Executive and the Legislative Committee respectively, explicitly state that the ultimate aim under the above-mentioned principle should be election through universal suffrage. The principle of “gradual and orderly progres”s may be considered to have the same value as the Directive Principles in our own Constitution. Beijing, however, has put excessive focus on “gradual” and argues that the city-state is not yet ready for universal suffrage, something that is to the benefit of its problematic Election Committee, but to the dismay of the citizens of the city-state, educated in democratic values.

This controversy over the Basic Law, introduced at the time of handover by China and the United Kingdom together, was highlighted when an attempt was made to implement Article 23, which prohibits sedition or treason against the Chinese government, thus invoking concerns about the government spying on the citizens of the city-state.

It is relevant to note here that Hong Kong, in its colonial legacy, largely follows the common law system, whereas mainland China follows its separate legal tradition. This conflict of laws was further highlighted in the 2005 controversy over Article 46 of the Basic Law, which concerns the election of the Chief Executive. In China, the date of election of the President follows a fixed term, whereas Hong Kong’s law relating to presidential elections, derived from the Westminster tradition, did not have such a fixed timeline. The length of the terms of the new Chief Executive appointed post a sudden resignation thus came to be disputed as legal scholars belonging to different traditions interpreted the article differently.

Further, commercial cases between Hong Kong and mainland China come under international law. As such, the usual rules pertaining to conflict of laws apply in the city-state’s disputes, unlike Taiwan. It is important for Hong Kong to maintain control over its common law tradition, perceived to be more beneficial in trade and which has historically led to Hong Kong’s emergence as a global economic hub. As all laws predating the handover of the city-state by the UK continue to operate until repealed, it becomes essential to safeguard the common law of Hong Kong. In doing so, the city-state must adopt a permanent framework of laws which would remove uncertainty over its future status.

This, in turn, can only be achieved through greater democratic development, which would lead to an independent democratic structure, wherein any change in the legislature would be to the benefit of the city-state’s autonomy, and not for its greater incorporation into the mainland by harming its separate status, as was seen in the law relating to trial of the city-state’s citizens in the mainland, which sparked the recent protests.

Conclusion

For Beijing, it is important to maximise the trade benefits it gets from its control over Hong Kong, which has easier business regulations compared to the mainland, especially after the US-China trade war, while minimising the city-state’s political influence on the mainland. Therefore, the Communist party government largely benefits by maintaining the previously mentioned facade of self-rule of the citizens in Hong Kong. What it cannot have is a repeat of the infamous Tiananmen Square Incident, with the global media watching every step that Beijing takes. This explains why there has been no direct interference by the Chinese government in the current protest till now.

The citizens of Hong Kong, on the other hand, are educated in notions of having the right to criticise the government, and having various freedoms which are alien to the citizens of mainland China. This asymmetry of demands of the people has frustrated China into maintaining a mere soft power over Hong Kong, in the hopes of taking over post 2047.

Therefore, it becomes all the more important in the light of the recent protests, as well as the response to the Wuhan outbreak, for the city-state to establish an independent legal system, in order to protect the rights of its citizens and their hope for a sovereign future.

The Author is a first year student at NLSIU Bengaluru.