Two Views of Hong Kong's Basic Law: But Hong Kong Should Seek A Better Way

Abstract

During the nearly nine years since Hong Kong became the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China, one curious aspect of the relationship is more clear than ever: Hong Kong’s primary political and legal difficulties in maintaining as much autonomy as possible stem, most of all, from an “insufficiency of One Country.”

In the debates about Hong Kong’s post-1997 relationship with Beijing, “One Country” usually signifies (depending on where one stands in the debates) either: (a) the need to adhere to the primacy of the PRC in the One Country, Two Systems (OCTS) formula; or (b) excessive Beijing dominance, directly or indirectly, of political life in the HKSAR. However, there is quite another way of looking at One Country. When one considers the wide range of other jurisdictions with powerful regional governments and identities (Canada, Switzerland and the USA, for example) almost always there is basic agreement on the central-regional, legal relationship within one country. This is, too often, still not the case regarding the relationship between Hong Kong and Beijing. If we did have fundamental agreement on the detail of the political-legal relationship within One Country, we would be far better placed. That, indeed, is what both sides should be working towards.

This paper sets out to explain why this is so, under three main headings:

1. The constitutional position of the HKSAR within the Chinese constitutional structure. 2. The lack of adequate institutional arrangements to facilitate negotiations and settle disputes between Hong Kong and Beijing. 3. The relative success of cross-border, Mutual Legal Assistance (MLA) measures - which highlight the direction of possible reform by demonstrating what can be achieved.