Is Hong Kong's "The Basic Law" a sham constitution?
Updated: Apr 30, 2020
The real problem of the Basic Law is that China has repeatedly breached the Joint Declaration! China breaches many international agreements (e.g. UN human rights obligations including ICCPR, WTO, South China Sea territorial waters, etc.).
Since The Basic Law is from the Joint Declaration we should neither be waiting for, nor looking at China's "interpretation" of the Basic Law. Instead we must be holistically viewing China's compliance with the Joint Declaration including does Hong Kong have a high degree of autonomy and unchnaged lifestyle.
For instances that China has breached the Joint Declaration we the majority of HK people demand that China corrects its breaches of the Joint Declaration.
Having overwhelmingly won the 2019 District Council elections by controlling 17 of 18 districts and 389 out of 452 seats the pro-democracy councillors, who all supported the protesters, are now the majority.
UN Universal Declaration of Human Rights Article 20.3 (quote - bold format added):
"The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures."
The origin of The Basic Law, often termed as Hong Kong's "mini-Constitution," is the 1984 Sino-British Joint Declaration On the Question of Hong Kong. Article 3.12 "The above-stated basic policies of the People's Republic of China regarding Hong Kong and the elaboration of them in Annex I to this Joint Declaration will be stipulated, in a Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, by the National People's Congress of the People's Republic of China, and they will remain unchanged for 50 years."
The Joint Declaration has been signed and lodged by both China and Britain with the United Nations making this an agreement that is binding on both parties.
"Eastern Europe can teach us a lesson when it comes to rights"(1)
The 2016 - 2017 Court case of jailed 32 year old Pakistani "Zn" shows Hong Kong (HK) is a lot closer to the China model than it likes to admit.
Zn allegedly informed the HK Police, Immigration and Labour Departments that he was a victim of human trafficking. Instead of helping him they imprisoned him. HK it seemed does not have specific laws against forced labour. Too bad.
Sure the Basic Law mentions the International Covenant of Civil and Political Rights (ICCPR) as constitutional law in Article 39, nestled in a section about residents only.
Yet unlike most constitutions, which give the covenant direct effect, only the Hong Kong Bill of Rights Ordinance and other laws can implement these rights.
In Eastern Europe (a human rights challenged part of the world like HK), government administrations I work with actively think how to better uphold human rights. How do you think our efficient authorities would have reacted to Zn if we had something in the Basic Law like Azerbaijan's constitutional Article 24 observing that "everyone, from the moment when they are born possesses inviolable and inalienable rights and liberties."?
Wouldn't something like that encourage the Immigration Department to be a bit more proactive? instead, they pass tougher visa restrictions.
NOTE: ICCPR Articles 1 and Article 20 are NOT included in the HK Bill of Rights. Hong Kong having signed and ratified ICCPR is required to comply 100% with ICCPR.
"Law enforcement agencies need rules to foster public trust" (2)
Trust in our law enforcement bodies has reached a nadir. Numerous academic polls in 2016 - 2017 typically say that about 35% of us do not trust the police.
Latest 16 October 2019 Poll: 51.5% say they have ZERO trust in HK Police. More than half for the first time. Over 70% say they don’t trust the police. We are now running a gigantic social experience of “violence without legitimacy in a global city.” This finding is from a scientific poll conducted by the Center for Communication and Public Opinion Survey of the Chinese University of Hong Kong (CUHK).
How can we trust institutions cloaked in secrecy and sheltered from direct public control?
When where you last asked about police policy? Or when was the last time the ICAC shared some information with you on a confidential basis? Stop laughing!
We do not trust these bodies because our laws governing them have not kept up with changes in society. In most advanced countries, regulations involving government bodies were changed to reflect the "new governance" fad of the 1980's.
Administrative law in the US and the EU has slowly chipped away the old accountabilities - where the head of government directs the minister in charge of security and so forth. "New governance" put service users at the head of services. Committees involving us set policy. Such laws allowed officials at all levels to listen and adopt changes we recommended.
Nothing in our law seems to reflect that approach. The Police Force Ordinance does not mention its duty to the public. In Part IV of that law, nothing mentions how police must listen to us, or what our rights are in determining police conduct.
What about accountability to the government of the day? How to protect secrecy and security when infiltrators and "moles" can compromise law enforcement? Other governments have found ways to make public-private consultative bodies governors of law enforcement - without sacrificing security.
How can we promote trust in law enforcement? Start with serving citizens and service users as the objective of law-regulating bodies like the ICAC and police.
Why not govern police and the ICAC with commissions of private and public officials - like in other democracies? Draft internal rules allowing officials working there to interact frankly with the public - recognizing we have the right and responsibility to provide feedback. If think tanks and NGOs produce work on reforming the ICAC, government must show they have read and engaged with any recommendations.
If police and ICAC let us join their ranks - at least in a tiny way - we will feel far more trust and accountability in them.
"The Basic Flaw"(3)
Most people will comment on the "conditions" in which the Basic Law operates - such as freedoms and human rights spelt out in the Basic Law which Beijing has violated.
The core issue is the lack of the effectiveness of the document itself. It is now time to recognize that the Basic Law, with all its promise back in 1997, is just another failed constitution.
The broader question, for Hong Kongers as well as others, is why do we put constitutions on such high pedestals? Zachary Elkins and Tom Ginsburg demonstrated in "The Endurance of National Constitutions" that the average length of state constitutions is only 17 years. Even further, David Law and Mila Versteeg have empirically revealed that many constitutions and bills of rights do not in practice result in an established form of constitutionalism.
Thus time may be up on HK's Basic Law as the erosions of rights and freedoms are becoming more acute, perhaps it is time to renegotiate it or scrap it.
Because the Basic Law has a sunset clause (expiration) of 50 years will the Basic Law become not only recognized as a failed constitution but actually a sham constitution?
Brian Jones expressed such a view only two years ago. Now, in 2019, look at where we are!
Clearly something is not working in Hong Kong, with ongoing protests since June 2019 and no meaningful dialog or response from either the HK Government or Beijing!
Hong Kong protesters are mostly peaceful people. HK people recognize that ballots are stronger than bullets!
We need a referendum to agree on the action needed in Hong Kong that ensures we have a high degree of autonomy and thereby China upholds the Joint Declaration.
(1) & (2) Dr Bryane Michael, a senior Fellow with HKU Asian Institute for International Financial Law, wrote these articles for SCMP 24 January 2017 and 21 February 2017.
(3) Brian Christopher Jones, a lecturer in Law at Liverpool Hope University, wrote this article for SCMP 13 May 2017.
30 April 2020, SCMP columnist, Michael Chugani reflects on Article 22 of the Basic Law, and asks the question : "If Carrie Lam is governing Hong Kong and Luo Huining is supervising, who's really in charge?"