The true intent and spirit of the Sino-British Joint Declaration concerning Hong Kong.

Mar 30, 2021
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On 12 March this year the G7 group of nations published a statement saying that Beijing’s proposal to change the electoral arrangements for Hong Kong’s legislature ( LegCo ) was, among other things, a breach of the Sino-British Joint Declaration: the agreement signed 36 ½ years ago to “settle” the question of Hong Kong’s future, ending the era of colonial rule. Their accusation is driven, not by fact and logic, but by an underlying mindset fixed in the past; a mindset formed in the days of European imperialism that sees Hong Kong as a foreign concession within China.

There is nothing in the Joint Declaration which says specifically how LegCo should be constituted, nor that the Region must move to “full democracy”, whatever that expression may mean, by 1947.
Thus, when an accusation of breach of treaty is made, what needs examination is not simply the Joint Declaration’s fine text, but its true intent and spirit.

One starts with the proposition that each party was acting in good faith, for the betterment of Hong Kong and its people. This necessarily means that Hong Kong should evolve comfortably and peacefully as a special administrative region of China, within the overarching principle of One Country Two Systems, after the end of British rule. A framework for Hong Kong’s development in the long term.

The Joint Declaration provided for the legislature “ultimately” to be constituted by election on the basis of universal suffrage. The pace of development, the precise shape of the legislature: these were matters to be determined uniquely by China; the Joint Declaration gave Britain no voice in that regard.

At the time when the Joint Declaration was signed, December 1984, “democracy” for Hong Kong was far beyond the horizon. It was an autocracy. The Governor presided over LegCo, whose members were all appointed by him. The Governor made all the laws “with the advice and consent of the Legislative Council”. Senior government officials sat in LegCo.

There was in place a robust common law system, but no constitutional guarantee for personal freedoms and rights beyond the common law.

Any discussion of universal suffrage being introduced for the composition of LegCo must start with that starch reality in mind.

The Basic Law enacted in April 1990 faithfully implemented the Joint Declaration.

Article 68(2) provides:

“The method for forming the Legislative Council shall be specified in the light of the actual situation in the HKSAR and in accordance with the principle of gradual and orderly progress. The ultimate aim is the election of all the members of the Legislative Council by universal suffrage”.

At that time, LegCo was still composed largely of members appointed by the Governor, with a few representing functional constituencies; no geographical constituencies then existed. The Governor still presided over LegCo meetings.

Attempt by the last Governor, Chris Patten, in the remaining seven years of British rule, to “democratise” Hong Kong by creating “giant” functional constituencies was rejected by Beijing, with the result that the legislature that existed on 30 June 1997 did not become the first legislature of the special administrative region. There was no “through train”. Instead, it was a provisional legislature composed of members selected by the Selection Committee that held office until the second term as laid down in Annex II of the Basic Law took effect.

That second term LegCo was composed of 30 members returned by functional constituencies, 6 by the Election Committee and 24 by geographical constituencies.

Further progress was made in subsequent years. LegCo was expanded to 70 members and, in 2012, five seats were created for District Councillors, making half of LegCo directly elected.

From about 2014 LegCo became progressively dysfunctional as the “pan-democrats” became more radical. No legislation to deal with public order or national security could be passed. A separatist movement then began, proclaiming that “Hong Kong is not China”. This was a direct challenge to the fundamental policy of national unity and an attack on national security, for which Hong Kong had no defence. The only laws existing in the statute book to deal with the situation were the old colonial laws which were totally unfit for purpose.

With violent insurgency erupting in mid-2019 and a legislature which had become totally dysfunctional, Hong Kong was teetering on the edge of disaster. The situation was saved by the Central Government’s intervention, enacting the set of national security laws.

The next logical step, then, was the reform of the electoral system, announced by the Central Government in early March 2021.

The broad principles of those reforms have been set out; the details are yet to be finalised by the Standing Committee of the National Peoples’ Congress (NPCSC). One knows, for instance, that the Election Committee’s membership will be increased from 1,200 to 1,500, with power to vet candidates for election to LegCo.

It can legitimately be argued that such a proposal is too restrictive, that the Election Committee is not sufficiently representative of Hong Kong society as a whole. But there can be no argument that broad reform was necessary, to enable LegCo to resume functioning as an effective organ of government, under the rule of law.

What Western democracy can exist without a workable legislature ?

How, then, can the G7 leaders assert that the proposed reforms constitute breach of China’s treaty obligations under the Joint Declaration?

The answer is that their accusation is driven, not by fact and logic, but by an underlying mindset fixed in the past; a mindset formed in the days of European imperialism that sees Hong Kong as a foreign concession within China, rather akin to the International Settlement in Shanghai; a region representing essentially Western interests, with no regard for the welfare of its native inhabitants. This gives G7 nations the pseudo-right to interfere, in what are essentially China’s internal affairs. Just stating the proposition shows its absurdity.

What is the true intent and spirit of the Joint Declaration ?

It encapsulated China’s fundamental policy for Hong Kong in the long run, not necessarily limited by the date 30 June 2047. The exercise of full sovereignty over all of Hong Kong was never in doubt. This was acknowledged in Article 1 of the Joint Declaration which says:

“The Government of the PRC declares ….that it has decided to resume the exercise of sovereignty over Hong Kong with effect from 1 July 1997”.

This was accepted by Great Britain where, in Article 2, it says:

“The Government of the United Kingdom declares that it will restore Hong Kong to the PRC with effect from 1 July 1997”.

These were unconditional declarations on both sides.

The Joint Declaration was not the script for a piece of theatre; a show-piece for liberal capitalism, to be acted out for the span of fifty years, with the curtain dropping on the last stroke of midnight, 30 June 1997. Show over. Lights out. The actors have had a good time, earned much applause, made a heap of money. Time to take the last bow and say goodbye.

The Joint Declaration entrenched Hong Kong’s high degree of autonomy. It mapped out specific areas where that applied: customs, public finance, monetary affairs, trade industry and commerce, shipping arrangements, civil aviation, social services, education policy etc. All this under the fundamental policy of One Country Two Systems; a policy with no time limit.

It was not an arrangement frozen in time. It gave scope to a living community to evolve. As circumstances changed, the law had to change and adapt, to ensure that Hong Kong sits comfortably within the principle of One Country Two Systems in the long term.

The proposed electoral reforms are simply a step in Hong Kong’s evolution under that principle.

The two vital initiatives taken by the Central Government since May 2020 – the national security law and the proposals for electoral reform – demonstrate conclusively Beijing’s understanding of Hong Kong’s unique position within the PRC: a global trade and financial centre with its cultural diversity, its ability to liaise easily with the West, its common law system which gives confidence to foreign business partners, its protection of fundamental human rights under the Basic Law. It is now clear that the Central Government sees Hong Kong fulfilling this role in the long run, to act as an essential hub in the Greater Bay Area in the years to come. But, to fulfill this destiny, the basic government structure must be set on firm foundations: New national security laws must replace the unworkable colonial laws and the foundational institutions of the Region – the Chief Executive and LegCo – must work flawlessly within the principle of One Country Two Systems.

Democracy exists in many different forms; some are more successful than others. Seeing the turmoil in the USA recently – where members of Congress had to flee for their lives and sought refuge in underground shelters – some have dubbed USA a failed state.

If a phrase must be coined to describe the Central Government’s present proposals for electoral reform in Hong Kong, “democracy with Hong Kong characteristics” might be appropriate.

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