ONE COUNTRY, TWO SYSTEMS
Published by: Shruti Kulshreshtha
In the context of Hong Kong
Chinese sovereignty acquired Hong Kong in the year 1997, before which it was under the monarchy of the United Kingdom as a colony since 1841, barring the four years of Japanese occupation during World War II. Under the Sino-British Joint Declaration, China agreed to follow some conditions such as the drafting and enactment of Hong Kong’s ‘mini-constitution’ Basic Law. The Basic Law of Hong Kong provided that Hong Kong shall have its independent economic system of capitalism, its currency- Hong Kong Dollar, its own legal and legislative system and the rights and freedoms similar to those adopted by a Special Administrative Region (“SAR”) of China for a period of 50 years. Thus, this system will expire in the year 2047, until then the country operates by the name ‘Hong Kong, China’ in the international scenario.
The Chinese currency is not legal tender in Hong Kong and likewise, the Hong Kong currency is not legal tender in China. With this positioning in place, people require a special visa for crossing borders from Hong Kong to China and vice versa, where the Hong Kong citizens hold Hong Kong SAR passports and not Chinese passports. The people of Hong Kong speak in English and Cantonese primarily whereas the people in China speak in Mandarin, being its official language. The interpretation of the Basic Law is controlled by the Central Government in Beijing while people in Hong Kong contend that they still don’t have universal suffrage as promised by the Basic Law. This led to mass demonstrations in Hong Kong in 2014.
In the context of Macau
Like Hong Kong, Macau was colonized by Portugal and ruled by a governor for 442 years after which the Chinese Sovereignty acquired Macau in 1999. Again, China agreed to accept some conditions upon acquiring Macau as stated by the Joint Declaration on the Question of Macau, that is, the drafting of the mini-constitution of Macau. The Basic Law of Macau has permitted the country to have its own currency, Pataca, an independent legal and legislative system and rights and freedoms to the people similar to those of the Special Administrative Region (SAR) of China. This arrangement shall expire in 50 years, which is, 2049 but it has authorized Macau to function in its own name and not under China’s name, in the international front.
The residents of Macau hold a Macau SAR passport for the purpose of crossing borders between China and Macau. The official languages have made both the countries distinct from each other as in Macau, people speak Cantonese and Portuguese while in China, Mandarin is the official language. The legal interpretation of the Basic Law and the foreign relations of Macau are majorly controlled by the Central Government of Beijing.
In the context of China
Chinese have settled in Hong Kong since ancient times dating back to 6000 years ago in the Neolithic period. Hong Kong was controlled by numerous local administrations that ruled in China such as Panyu County of Nanhai Prefecture, Bao’an County of Dongguan Prefecture, Bao’an County of Guangzhou Prefecture, Dongguan County of Guangzhou Prefecture, and finally Xin’an County of Guangzhou Prefecture in the Qing Dynasty. The Qing Government was set out of action due to its incompetency. In the mid-nineteenth century, the Qing Government was forced to sign the Treaty of Nanjing and Convention of Beijing followed by the Opium war started by Britain. As a consequence of this, the Hong Kong Island and the Kowloon Peninsula was acquired by Britain. Britain compelled the Qing Government to sign the Convention for the Extention of Hong Kong is 1898, leasing the new territories for 99 years until June 1997.
While establishing socialism in China, the leaders felt that Hong Kong can be used as a base for China to connect with the international economy by attracting foreign investors. The leaders of New China realized the importance of maintaining the status quo of Hong Kong and Macau and taking long-term actions for the full advantage. China considered the territories of Hong Kong and Macau as Chinese territories occupied by the British and Portuguese Government thereby making the issues of Hong Kong and Macau as matters related to Chinese sovereignty. All developing countries supported China’s notion.
ONE COUNTRY, TWO SYSTEMS
One Country, Two Systems is a constitutional principle developed by the People’s Republic of China setting out the governance policies for Hong Kong and Macau after they became Special Administrative Regions of China in 1997 and 1999 respectively. From 1982 to 1984, Beijing witnessed many heated conflicts regarding the renewal of the lease with Britain. The media was pro-British while the pro-Beijing newspapers did not have wide coverage and circulation. Some opined that the presence of the British gave rise to economic growth and international business confidence in Hong Kong. Also, the public opinion was that they wanted to revive the status quo and did not want a communist rule. Keeping in mind all of these contentions, Beijing formulated a new policy to win public trust and to calm the fear of the people of Hong Kong. This new policy was the “One Country, Two Systems” policy. The policy stated that Beijing would rule over Hong Kong at the end of the British colonialization. The paramount ingredients of this policy are as follows:
The policy is named One Country, Two Systems as Hong Kong was permitted to follow the capitalist system which is separated from the Communist system on the mainland.
The Policy grants autonomy to Hong Kong in economic, cultural, and political affairs. It also states that Hong Kong can have its independent police, own currency, capitalist social habits, institutions, laws, and Courts. Mainland laws will not be applicable to Hong Kong. Except for foreign diplomacy and defense, the Beijing government cannot interfere in the affairs of the territory.
The citizens of Hong Kong will be entitled to elect the Hong Kong Government. Beijing cannot send any candidate to contest these elections.
This system shall continue for 50 years without any change.
The Hong Kong SAR shall retain the status of a free port and customs territory.
The financial system of the Hong Kong SAR will be independent. This means that tax will not be levied by the Central People’s Government.
The Hong Kong SAR shall use the name ‘Hong Kong, China’ for relevant international purposes.
In order to make the compliance of this policy a successful one, China amended the Chinese Constitution and inserted Article 31 providing that Hong Kong, Macao, and Taiwan are Special Administrative Regions of China, thereby giving the policy a legal backing.
This policy was appreciated by the people of Hong Kong. It helped in turning the public opinion from pro-British to pro-Beijing. Seeing the public support, Britain gave up the opportunity of extending the lease. Hence, Britain signed the Joint Declaration with China in 1984, accepting to give sovereignty over Hong Kong and giving it to China on 1 July 1997. The Declaration also stated that Hong Kong was free to draft and adopt its constitution or the Basic Law. Since all these terms were written and signed, the people of Hong Kong ended their worries and focused on their economic expansion.
Characteristics of ‘One Country, Two Systems’
The One Country, Two Systems policy is a basic national policy formulated by the Chinese Communist Party (CCP) concerning the impact of historical changes on Hong Kong, Macao and Taiwan and achieving the ultimate goal of the reunification of the country. Following are some of the characteristics of this policy:
The Policy is a part of Socialism: The concept of One Country, Two Systems forms an essential part of socialism with some Chinese characteristics. It was proposed altogether on the premise of Chinese reality. Its elaboration, with the end goal of settling the Taiwan issue, depended on the truth of particular conditions on the two sides of Taiwan Strait and the worldwide circumstance. Its the objective was to regard the powerful urges of the individuals of Taiwan to be the ace of their undertakings and completely defend their quick and long haul interests, in the developmental procedure of national reunification. It depended on such down to earth contemplations that Deng Xiaoping unequivocally recommended that Taiwan could keep up its current entrepreneur framework and lifestyle after reunification and that this methodology could likewise be applied in settling the Hong Kong and Macao issues. On the other hand, the policy promotes an environment that fosters growth, reform, and modernization of the country. China, Hong Kong, Macao, and Taiwan have an open opportunity to learn and adopt new techniques and advanced management practices from each other.
The Policy promotes Nationalism and Unity: The elemental approach of the concept of One Country, Two Systems is the national unity. Historical issues concerning Hong Kong, Taiwan, and Macao had led to damaging China’s sovereignty and integrity. Reunification is the fundamental interest of this settlement and the sanctity of national integration can be revived again. People’s support and national sentiment towards reunification are the forces that drive the Chinese Government to work for this innovative notion. Even the Basic Laws of Hong Kong SAR and Macao SAR has included territorial integrity in their preamble.
The Policy provides for peaceful reunification: As per the ‘One Country, Two Systems’ concept, Hong Kong and Macao can experience peaceful reunification as the socialist system in the mainland and the capitalist system in the two countries will coexist peacefully. This policy is intended to be a national strategy not framed in expediency which indicates that it will be free from frequent amendments. Moreover, the Basic Law clearly provides that the policy shall remain unchanged for 50 years. Hence, it will promote stability in nations.
WHAT IS BASIC LAW?
Prior to the enactment of the Basic Law, the concept of ‘One Country, Two Systems’ was just a principle. Intending to achieve legal compliance and for allowing Hong Kong to enjoy a promising autonomy, the National People’s Congress adopted Article 31 in the Constitution of PRC. Article 31 reads as follows:
“The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in the light of specific conditions”
Basically, this Article manifests a constitutional premise for the enactment of the Basic Law. Clause 3(12) of the Sino-British Joint Declaration provides that the basic policies enumerated in this Joint Declaration shall be stipulated in a Basic Law of Hong Kong SAR which shall not change for the next 50 years. So, after the signing of this declaration, a Drafting Committee for the Basic Law in Hong Kong SAR was formed where people from around the country were joined for recommendations. The primary aim of this committee was to prescribe a system which shall be in accordance with the principles set out in the Joint Declaration. The first meeting of this committee was held on 1 July 1985 in Beijing which consisted of 59 members, 36 forms the mainland, and 23 from Hong Kong. A Consultative Committee was established on 18 December 1985 with Ann Tse-Kai as its Chairman. The Consultative Committee was the “largest and most representative advisory organization in the history of Hong Kong” with experts divided into 8 sub-committees namely,
The structure of Basic Law
The political structure
Residents’ rights and duties
Finance, business, and economy
culture, science, and technology, education, and religion
The relation between Central authorities and SAR.
The Committee spent 5 years in the drafting of the Basic Law and was adopted on 4 April 1990 which stated that the Basic Law of Hong Kong SAR is constitutional as it is made in compliance with the Constitution of the People’s Republic of China and the policies provided by the Joint Declaration. Thus, the basic principles and policies regarding Hong Kong were translated into national law with a general binding effect, forming the basis for the operation of the HKSAR and compliance by people all over the country. The enactment of the HKSAR Basic Law marked the completion of the transformation of “One Country, Two Systems” from a concept into a basic policy, and finally a national law.
There are 9 chapters in the Basic Law and 26 instruments that are general explanations. The Basic Law has established certain agencies in Hong Kong SAR which ensure autonomy under Chinese sovereignty. Article 22 provides that Central People’s Government as well as local governments cannot interfere in the administrative affairs of Hong Kong. Except for the Basic Law and the Constitution, national laws are not enforced in Hong Kong unless they are listed in Annex III and applied by local promulgation or legislation. For the purpose of national security, Article 23 of the Basic Law requires Hong Kong to establish a national security law for prohibiting treason, secession, sedition, subversion against the central government, theft of state secrets, and foreign organizations from conducting political activities in Hong Kong.
The Basic Law also provides fundamental rights and duties that include civil and political rights, the provisions concerning political structure, external affairs, etc.
WORKING OF THE LEGISLATURE
The Legislative Council of the Hong Kong SAR (LegCo) is a unicameral legislature with 70 members, out of which 35 are directly elected form the five geographical constituencies(GCs) and the rest are indirectly elected through interest-group based functional constituencies (FCs). The main functions of the Legislative Council are to enact, amend or repeal laws; examine and approve budgets, taxation and public expenditure; and raise questions on the work of the government. The Legislative Council is also given the power to endorse the appointment and removal of the judges of the Court of Final Appeal and the Chief Judge of the High Court, as well as the power to impeach the Chief Executive.
Prior to 1997, a Provisional Legislative Council was set up in Shenzhen. Article 68 of the Basic Law states that the main motive of elections is universal suffrage which, however, has a point of conflict and protests in the territory. The GC seats are returned by universal suffrage. The voting system adopted in the electoral districts is a system of party-list proportional representation, with seats allocated by the largest remainder method using the Hare quota as the quota for election. On the other hand, there are 35 FCs which represents the sectors of society. A simple plurality system is adopted where one person equals one vote except the Labor FC wherein one person can cast 3 votes. In some FCs a preferential elimination system is used for elections.
The LegCo has adopted a Committee system and thus, the scrutiny of bills, managing public expenditure, monitoring the government’s actions is done by committees. There are 5 primary Standing Committees namely, House Committee, Finance Committee, Public Accounts Committee, Committee on Member’s Interests and the Committee on rules of procedure. In addition, there are various Panels such as Panel on Education, Panel on Development, etc, to govern the different sectors of the country.
THE UMBRELLA MOVEMENT
On 22 September 2014, a mass rally began in Hong Kong where around 13000 students boycotted their classes and gathered in the busiest districts of the Country. They marched through the city in yellow ribbons on their wrists as a symbol of democracy and a response to a decision made by the National People’s Congress (NPC). The NPC proposed to impose restrictions on the nomination of candidates for Hong Kong’s leader in the Chief Executive election that is due to be held in 2017, how the Basic Law—Hong Kong’s constitution—promises “One country, two systems” and that the Chief Executive will eventually be chosen by universal suffrage. The protestors demanded democracy and political self-determination. This was the start of the revolution known as the Umbrella Movement.
Protestors used umbrellas as a sign of passive resistance to the Hong Kong Police as they were using pepper spray on the protestors who were on a 79-day occupation of the city for demanding their rights. They wanted transparency in the elections which was at stake after the decision of the Standing Committee of National People’s Congress that a selective pre-screening of candidates shall be done for the elections of the Chief Executive in 2017.
Occupation on campus: The students of the universities in Hong Kong showcased their support for the Umbrella Movement by boycotting their classes. Banners reading “I want real Universal Suffrage” were carried by these students for demanding their rights established by the Basic Law.
Occupation in Hong Kong areas: Protestors hung the banner on the Lion Rock hill in Hong Kong. However, it was demolished by the government the next day. Since then the protestors started the campaign “Demolish one, hand ten” and hung banners on numerous mountains of Hong Kong.
Rallies: 64 cities worldwide conducted rallies in support of the Umbrella Movement. There were demonstrations in London in front of the Chinese embassy, petitions filed in Australia for rendering support, solidarity protests in Taiwan, and many more.
Although this movement was worldwide, it had no formal leadership. Groups like “Scholarism” from the Hong Kong Students Federation and “Occupy Central with Love and Peace” were the largest groups in this movement.
The Umbrella Movement had emerged due to a protracted debate over the electoral change of the city’s Chief Executive election. National People’s Congress ruling in 2007 stated that Hong Kong can implement the rule of universal suffrage for the election of the 5th Chief Executive to be held in 2017 – after it was twice denied by Beijing for its 2007 and 2012 elections. If universal suffrage is implemented in 2017, Chief Executive candidates would be elected by a popular vote instead of being selected by an election committee – but they must be selected by a nominating committee to ensure that the elected leader would not oppose the central government and that he/she would “love the country and love Hong Kong”, a requirement set out by numerous Chinese officials. Besides, Hong Kong’s Basic Law requires this nominating committee to be “broadly representative” and to operate “under democratic procedures,” but it does not clearly outline the composition of the committee or the nomination procedure. The nomination process soon became the focal point of contention. Across the pro-democracy camp, there were widespread concerns that the nomination process will act as a safety valve to screen out candidates regarded unfavourably by Beijing.
Expecting that the political decision may end up being "fake universal suffrage", majority rule government supporters contended that they have the option to be chosen as well as the option to be selected, and subsequently, they merit an increasingly vote based and comprehensive designation process. Many demanded the presentation of community assignment a component that would permit the general population to sidestep the naming advisory group and straightforwardly name Chief Executive up-and-comers, yet which has been dismissed by the administration as a repudiation of the Basic Law. Some would acknowledge an all the more equitably framed naming advisory group, as long as there was a change in its creation or potentially a sensibly lower selection limit.
The result of the Umbrella Movement is observed as follows:
In June 2015, the LegCo rejected the electoral reform desired by the government by 28 votes to 8.
This movement gave rise to umbrella soldiers that are groups dedicated towards achieving political change in the country such as Hong Kong Indigenous and Youngspiration.
Many prominent instigators were imprisoned. Pro-democracy student leaders, Nathan Law, and Alex Chow were sentenced to imprisonment for 6-8 months for occupying the Civic Square. Some protestors were convicted for unlawful assembly.
THE EXTRADITION BILL
The Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 is proposed to pass in the LegCo. “A Hong Kong SAR extradition bill, upon its enactment into law, would enhance the country’s susceptibility to Beijing’s political coercion and has the potential to hamper the autonomy of Hong Kong. The bill, which followed a minimal public comment period, would amend Hong Kong’s laws to allow extraditions to mainland China. The offenses that are categorized as having a punishment of imprisonment for the term of 3 years as per the law would get legal backing of extradition and the bill would remove independent legislative oversight in the extradition process.
These amendments would question the legal strength of the Hong Kong law and allow the country to be subject to Beijing’s weak legal system and politically motivated charges.
The proposed amendments to Hong Kong’s extradition laws will create serious risks for United States national security and economic interests in the territory. If passed, the bill could substantially infringe several essential clauses of the U.S.-Hong Kong Policy Act of 1992, which provides the U.S. policy towards Hong Kong, which includes the authorization of the U.S.-Hong Kong extradition treaty” and encouraging U.S. businesses to continue to operate in the territory. “The new changes can taint Hong Kong’s reputation of being a safe place for U.S. and international business operations and in fact can increase the risks for U.S. citizens and port calls in Hong Kong.
The bill can act as a tool for Beijing to further worsen Hong Kong’s autonomy and encroach the guaranteed freedoms by the Basic Law. Advocates for pro-democracy and the business community would find it way harder to put forth their notions of enhancing democracy in the territory if this bill is passed. This would add to the misery of their already existing concern about Beijing’s illegal detention of Hong Kong and other foreign citizens.
“The revised extradition process involves the following steps:
Upon receiving an extradition request from any government outside Hong Kong, the chief executive (who is elected by a committee of mostly pro-Beijing electors) will issue a certificate to request a provisional arrest;
The court of jurisdiction (determined by the type and severity of the case) will conduct an open hearing, allowing the individual being called for extradition to offer a defense, and shall determine whether the extradition request complies with the law. The judge decides whether to issue an arrest warrant for the fugitive; and
The chief executive will finally decide on whether to proceed with the arrest and rendition.”
The problem with this procedure is that the territory’s rule of law is at stake. Opponents assert that the amended legislation would empower Beijing to ask for the rendition of politically targeted persons in Hong Kong, Hong Kong does not have strong legal safeguards against Beijing’s requests and the Chinese legal system cannot be trusted for a fair trial. Another controversial concern is the transfer of the oversight role of the LegCo for case-by-case extradition to the Chief Executive who is appointed by and therefore accountable to Beijing. This again puts a question on the autonomy of the territory.
The Legislature of Hong Kong has withdrawn the extradition bill and has officially scrapped it. Although this is a positive step for the citizens of Hong Kong, the bad intentions of the Beijing Government have come out crystal clear by even laying the said amendments.
The framework of “One Country, Two Systems” has provided an ideal method of unification. However, the actions taken by China are posing a threat on the integrity and democracy of Hong Kong. Although there is no specific political groups or leader in China or Hong Kong who desires to demolish this whole system, but passive efforts are being noticed by the people, which can also act as a threat on the national security of Hong Kong.
In a recent step taken by China, the Chinese leader Xi Jinping has signed a presidential order for enacting a National Security Law for Hong Kong, providing Beijing with unprecedented powers over Hong Kong. People fear that this can take away their political and civil freedom. The Act empowers the Chinese Government to set up its own law enforcement agency in Hong Kong for the proper functioning and implementation of the National Security Law. There are numerous other issues with the impact that this law will have on Hong Kong.