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South China Morning Post, April 4, 2000
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On the Tenth Anniversary of the Basic Law - The Basic Law should no longer be used as an instrument of control
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By Martin Lee
Ten years ago, the Basic Law became the bedrock of Hong Kong's legal system. For those of us involved in its tortuous birth, the events of that time remain as clear as if they happened yesterday.
As one of the 23 members of the Basic Law Drafting Committee appointed from the community of Hong Kong, I can still vividly recall the first few meetings of the Committee. We, the Hong Kong drafters, were assured time and again that the intention of the central government was to come up with a Basic Law that would enjoy widespread acceptance throughout Hong Kong. A very influential mainland drafter told me repeatedly that given the favorable reception of the Sino-British Joint Declaration in Hong Kong, if the Basic Law failed to command even more support from the Hong Kong community, he and other mainland drafters would consider it a failure on their part.
Indeed, the Joint Declaration represented a joint effort on the part of the Chinese and British governments to engender confidence in Hong Kong. The Basic Law was meant to engender even more confidence. But when the National People's Congress (NPC) promulgated the Basic Law in the late morning of 4 April 1990, it was against the backdrop of the pro-democracy movement in China, the unprecedented show of support for that movement in Hong Kong, and the subsequent crackdown that resulted in the massacre of hundreds and the stalling of reforms in China. The leaders in Beijing were insecure of their own positions and felt the need to exert greater control over the HKSAR. The Basic Law thus became an instrument of control.
In the late afternoon of that same April day, I moved a motion in the Legislative Council, calling on the NPC to make substantial amendments to the Basic Law in accordance with the recommendations that had been published by OMELCO (Office of the Members of the Executive and Legislative Councils) in its consensus report that responded to the call for comments on the final draft of the Basic Law.
These recommendations, to name but a few, advocated for a much quicker pace of democratization, reexamination of the relationship between the executive and legislative branches, granting to the courts of the SAR the exclusive right to interpret the Basic Law, clarification of the definition of "acts of state," reconsideration of the requirement that the SAR enact laws to prohibit acts subversive of the central government, and abolition of the split voting system in the legislature - the last three of which certainly would not have been so conservatively worded in the Basic Law but for the 4 June 1989 massacre.
In the words of my Legislative Council colleague, Dr. C.H. Leong, "¡K it [was] a bad year for the promulgation of the Basic Law¡K [which] unequivocally showed Beijing's suspicions and fears ¡K [of] Hong Kong people, resulting in a hastily tightening up of political control on the territory."
In a show of unity that was rare then and later, the OMELCO recommendations on the draft Basic Law were agreed across a wide political spectrum. Certainly, the consensus reflected the strong public sentiment at the time. My motion was carried by a majority of 20 to 6, with 16 abstentions - 10 of which came from the Council's government members.
The passage of this motion demonstrated conclusively the Legislative Council's disappointment with the Basic Law and its failure to live up to the community's expectation for a high degree of autonomy as promised by the Sino-British Joint Declaration. The feelings of the majority of Legislative Council members were perhaps best summarized by Mr. James Tien, who also supported my motion, though with some reservation: "To put it in a nutshell, since the events of June 4, last year, our high degree of autonomy should be made even higher."
As a matter of fact, this was very much also the prevalent mood of the Hong Kong society. In the final stage of the drafting of the Basic Law, 11 of the 18 remaining Hong Kong drafters sent a joint letter to the Chinese government, echoing two of the OMELCO recommendations - urging for the quickening of the pace of democratization and abolition of the split voting system. Unfortunately, our leaders in Beijing were too suspicious and fearful to take the suggestions. Put simply, the Basic Law was the product of the central government's then fundamental distrust for the people of Hong Kong.
Circumstances have changed a great deal over the past ten years, and any distrust of Hong Kong people felt in Beijing should long have dissipated. More importantly, in view of the recent presidential election in Taiwan, Beijing must now, more than ever before, prove that it meant what it said when it promised a high degree of autonomy to the people of Hong Kong and that "one country, two systems" can work. After all, if "one country, two systems" is evaluated by its implementation in Hong Kong, it would fail miserably. It should come as no surprise, therefore, that the President-elect of Taiwan, Chen Shui-bian, would outrightly reject the principle of "one country, two systems" as the basis for the negotiation on reunification. In the last days of his election campaign, one of his ads tellingly featured our Chief Executive with a caption saying: "We are electing our President, not appointing an SAR Chief Executive."
The time is ripe for Beijing to relax the political control and grant Hong Kong the degree of autonomy necessary for it to become a shining example of how "one country, two systems" can be successfully implemented. As a first step, it should amend the Basic Law, using the OMELCO recommendations as the basis.
In the meantime, the SAR government also has a responsibility to the people of Hong Kong to strive for and exercise the highest degree of autonomy possible for the territory. It should not try to anticipate the wishes of the central government and abdicate our autonomy for the sake of appeasement. Recently, the Secretary for Security stated that her Bureau would consult Beijing on the local enactment of Article 23 of the Basic Law when Hong Kong has no present need for such anti-subversion laws. Even if there were such a need, the Basic Law requires no such consultation. In fact, Article 23 clearly stipulates that the HKSAR shall enact laws "on its own."
It is time for us, therefore, to take stock of Hong Kong's constitutional situation and review the many provisions of the Basic Law which did not and do not find favor with Hong Kong people. The tenth anniversary of the Basic Law provides an opportune time to begin the necessary steps to codify and implement the degree of autonomy promised to Hong Kong by the Sino-British Joint Declaration. Only then can we hope to gain the confidence of the people both within and outside of Hong Kong that the principle of "one country, two systems" is more than just a vision.
This is the time for change - change for the better.
Tagline: Martin Lee is a democratically elected legislator and chairman of the Democratic Party. He was a member of the Basic Law Drafting Committee until 1989.
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