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
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.