South China Morning Post, February 22, 2000

Time to assess Deng's legacy



By Martin Lee Chu-ming

Two and a half years after the handover, it is time to step back and assess whether the "one country, two systems" policy is working. The success of this policy, a vision of Deng Xiao-ping, is important to the future development of both Hong Kong and China. It will require an extraordinary balancing of interests, made more difficult by the vastly unequal weight each wields. Just as a child must sit at the farthest end of a seesaw, while a parent inches forward until equilibrium allows the teeter to totter, the "one country, two systems" policy can succeed only if Hong Kong preserves its separateness, or autonomy, to counterbalance China.

It is even more important that the leaders and people of Hong Kong work to protect the integrity of our system because our constitutional foundation can tilt against it. The Basic Law was adopted by the National People's Congress and promulgated on April 4, 1990, exactly ten months after Tiananmen Square. At that time, leaders in Beijing, unsure of their own power, needed to secure control by the central government. To maintain equilibrium under the "one country, two systems" policy, then, Hong Kong must secure the countervailing position, namely, to preserve to the utmost its freedom and autonomy.

Unfortunately, recent events actually have tipped the scales further against Hong Kong. Last year, for example, the Government concluded that as a result of the decision by the Court of Final Appeal, 1.67 million people would have the right of abode. This questionable figure was delivered with a rhetorical flourish that frightened ordinary Hong Kong citizens in the midst of an economic crisis.

Even if Hong Kong truly could not handle the social and economic consequences of a mass migration, there were legitimate ways to resolve the issue. For instance, an amendment to Article 24 of the Basic Law could have been sought to reflect a similar article contained in Macau's Basic Law. Such an amendment, which could have been pursued under Article 159 of the Basic Law, would have denied the right of abode to children born outside of Hong Kong before their parents have obtained permanent resident status. It, therefore, could have reduced any burden on Hong Kong without compromising Hong Kong's autonomy. A decision was instead made to seek a reinterpretation from the Standing Committee of the National People's Congress. The reinterpretation, which overruled the Court of Final Appeal's interpretation of Article 24 of the Basic Law in a manner similar to the amendment discussed above, had the additional and unfortunate effect of undermining confidence in the finality and autonomy of Hong Kong's legal system. At the same time, it handily presented Beijing a "post verdict remedial mechanism" on a silver platter.

As some may remember, in the final years of Britain's rule of Hong Kong, Beijing pressed the Sino-British Joint Liaison Group, for a "post verdict remedial mechanism" to allow the National People's Congress to overrule the high court. The British rejected the entreaty, which would have subjugated Hong Kong's legal system to political whims in China. From this, one can only conclude that Beijing then knew it had no power to overrule the high court. Why else ask for such power? Further, since no "post verdict remedial mechanism" was ever agreed upon, one logically would have expected the Court of Final Appeal's decision on the right of abode issue to have been the final word. After all, governments often implement constitutional decisions with which they disagree unless the issue is important enough to pursue an amendment. They do so out of respect for institutional integrity and autonomy. The shattering of such expectations by the decision to seek a reinterpretation perhaps provides the clearest example of failing to protect Hong Kong's autonomy.

How can the "one country, two systems" policy succeed if we do not protect our system to the utmost? Each time Hong Kong surrenders a key aspect of its autonomy, it will -- like the small child on the seesaw I described before -- slide more quickly out of balance. We must not let this happen. We must see to it that Hong Kong exercises the degree of autonomy we are entitled to under "one country, two systems" not the degree of autonomy permitted by Beijing. Only then can we demonstrate that the "one country, two systems" policy can work. This is not only in our short term interest but also in the long term interest of establishing a unified China where prosperity, the rule of law, and freedoms will thrive.



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