Editor’s note: The following are the opening remarks of Grenville Cross SC at a forum sponsored by the Chinese Association of Hong Kong & Macao Studies on Jan 11, 2022
I am most grateful to the Chinese Association of Hong Kong and Macao Studies for inviting me to address you on Hong Kong’s democratic progress, and this can be conveniently compartmentalized into seven areas.
The Sino-British Joint Declaration of 1984
In the main text, the Joint Declaration said nothing about democracy, for good reason. Its whole thrust was upon maintaining Hong Kong’s existing way of life after the reunification in 1997, and there was no democratic tradition in the colonial era that required continuation. The United Kingdom, despite some frantic last-minute tinkering, never had any appetite for democracy in Hong Kong, so this was not something that required incorporation into the Joint Declaration.
Insofar as there was any reference to future governance in the Joint Declaration, it was found in Annex 1, where the Central People’s Government (CPG), having emphasized its ultimate authority, outlined broadly what its future policies towards the Hong Kong Special Administrative Region would be. These went beyond the main text, and indicated that, whereas the Chief Executive would be selected by election or through consultation and appointed by the CPG, the Legislative Council would be constituted by elections (Art.45 & Art.68).
There was, however, no mention of Western-style democracy, let alone universal suffrage. Many people, therefore, were pleasantly surprised when the Basic Law, enacted by the National People’s Congress (NPC) on April 4, 1990, went far further than anything envisaged by the Joint Declaration, and contained a truly democratic vision.
The Basic Law of 1990
The Basic Law provides for the election of both the Chief Executive and the Legislative Council of the Hong Kong SAR by democratic processes, with the “ultimate aim” being their election by means of “universal suffrage” (Art.45 & Art.68). This was remarkable, and it showed that the Central Authorities were willing to test Western-style democratic procedures in Hong Kong, to see if they worked within the “one country, two systems” framework. It may be noted that these provisions were not mirrored in the Basic Law of the Macao SAR, enacted by the NPC in 1993, and, if they had succeeded in Hong Kong, they could have provided a possible template for other cities as they modernized themselves elsewhere in China.
Implementing the Basic Law’s electoral arrangements
After 1997, significant progress was made towards achieving universal suffrage. Whereas, in the Legislative Council election of 1998, 20 legislators were elected directly by popular vote in the geographical constituencies, this had risen to 35, or half the total, by the time of the election in 2012, and further progress was envisaged. In other words, in the 15 years since Hong Kong’s reunification, infinitely more progress had been made towards democracy than in the 155 years of the colonial era, which was an extraordinary achievement.
At this point, this far-sighted experiment was undermined from within by political saboteurs who, encouraged by anti-China forces elsewhere, infiltrated the body politic with malign intent. Self-obsessed and visionless, they decided not to use the opportunities afforded by the Basic Law to advance the “one country, two systems” policy, but chose instead to violate their oaths of office, to encourage turmoil on the streets, to undermine the police force, to create paralysis in the Legislative Council, to confront Beijing, and to urge the US to impose hostile measures on their own city and its officials. In other words, they turned a golden opportunity into a horror show, bringing the good name of democracy into disrepute, and this was not all.
When, as envisaged by the Basic Law, proposals were brought forward in 2014 to enable the Chief Executive to be elected by universal suffrage in 2017, something that would have been inconceivable in colonial times, when all the 28 governors were appointed by the UK government in London, they were torpedoed by myopic legislators in 2015, who were incapable of answering the call of history.
Unless, therefore, decisive action was taken, Hong Kong’s unique status would not have survived, and it could well have become the sick man of China. As a first step, the enactment by the NPC of the National Security Law for Hong Kong, on June 30 2020, provided the law enforcement agencies with the tools they needed to combat the chaos and violence that some legislators had openly encouraged, but more was required to get the city back on course. Although the Central Authorities could well have concluded, given the disruption, that democracy had no future in Hong Kong, they nonetheless kept faith with the city. In consequence, Hong Kong has now been provided with a new democratic model, which cannot be corrupted in the same way as its predecessor, and this has been achieved through constitutional means.
Constitutional reform mechanisms
The NPC, by having recourse to the Constitution of the People’s Republic of China, has been able to make provision not only for the city’s good governance, but also for the survival of the “one country, two systems” governing policy for Hong Kong. In particular, the Constitution, as the supreme law, enables the state to establish special administrative regions, with the systems applicable therein being determined by the NPC “in the light of specific conditions” (Art.31).
In other words, given the situation that arose in Hong Kong, the NPC acted legitimately in making the adjustments to its democratic structures that were necessary to rectify the problems. Those steps, moreover, were supplemented by the Basic Law, which specifies that, in the methods for choosing the chief executive and the legislature, there are two preconditions. Regard, therefore was had not only to “the actual situation” in Hong Kong, but also to “the principle of gradual and orderly progress” (Art.45 & Art.68).
Electoral reforms of 2021
Armed, therefore, with this constitutional authority, the NPC, on March 11, 2021, enacted the “Decision on Improving the Electoral System of the HKSAR”. In consequence, the electoral system was overhauled, and this was achieved through amendments to Annexes I and II of the Basic Law, concerning the methodology for choosing the Chief Executive and the Legislative Council, but without making any changes to the Law’s substantive provisions. In doing so, the NPC was keenly aware that the electoral system must uphold the “one country, two systems” policy, and that this, in turn, hinged on the full implementation of the principle of “patriots administering Hong Kong”, as envisaged in 1984 by the former paramount leader, Deng Xiaoping. As a result, anybody wishing to stand for election to the legislature has to genuinely commit themselves to upholding the Basic Law and to be loyal to the city and the country, which will fortify the “one country, two systems” policy.
Legislative Council elections of 2021
On December 19 2021, there was a turnout of 1.35 million, or 30.2 per cent of the electorate, in the Legislative Council elections. This was a respectable result for a new electoral model, and provides a solid foundation for the future. The 90 incoming legislators, whilst all patriotic, will have divergent views on domestic issues, and will undoubtedly hold the Government to account. They include people of standing and promise, who are entering politics for all the right reasons.
State Council’s white paper of 2021
On December 20, 2021, the State Council issued a white paper entitled “Hong Kong Democratic Progress Under the Framework of One Country, Two Systems”, and this provides a context and sets the scene. While acknowledging that Hong Kong enjoys a high degree of autonomy, it confirmed the Central Authorities’ right to supervise the exercise of that autonomy. Noting that one size does not fit all, the paper highlighted China’s determination to allow democracy to develop in the city, and explained that this will be a democracy with “Hong Kong characteristics”. What ultimately matters, it said, is whether the “fundamental interests and the common will of the people are faithfully represented”, and this also involves “substantive democracy”, which includes consultation, inquiry, hearing and dialogue.
Quite clearly, if any democratic model is to succeed it must be capable not only of solving actual problems, but also of anticipating future concerns. This, in turn, requires it to be manned by people of the right quality who are genuinely interested in promoting the public good, and this has now been achieved. It is gratifying, moreover, that the State Council has reaffirmed the national commitment to fostering “favorable conditions necessary for the election by universal suffrage of the chief executive and the Legislative Council”. This, it said, will be achieved by working with “all social groups, sectors and stakeholders”, and this shows that consultation and inclusivity will be prioritized going forward, which is obviously heartening.
Conclusion
In recent times, Hong Kong has undergone some traumatic experiences, with its fledgling democracy being put in real danger. Although this posed significant challenges for the CPG, they have been overcome, and its policies have been vindicated. In consequence, Hong Kong now has renewed hope, with the “one country, two systems” policy being the guarantor of its future democratic development.
Grenville Cross is a Senior Counsel and Professor of Law, and was previously the Director of Public Prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.