South China Morning Post
Comment›Insight & Opinion
Michael C. Davis
Michael C. Davis says the chief executive and his team are failing in their duty to safeguard Hong Kong’s high degree of autonomy, as provided by law, to the detriment of the people and Beijing
The Hong Kong government has lately had great difficulty understanding what autonomy is and what its responsibilities are for the high degree of autonomy provided under the Basic Law.
In last summer’s white paper, Beijing admonished us that a “high degree of autonomy is not full autonomy”.
In his policy address, the chief executive, following Beijing’s line, argued that the protester’s slogan of “Hong Kong shall resolve Hong Kong’s problems” violated the constitution.
The protests in Hong Kong have been driven by the concern that the special administrative region’s autonomy is being eroded. In the face of a local government that has been unwilling to defend Hong Kong autonomy, many Hongkongers fear it will be lost and, along with it, the rule of law and other core values. For the protesters, democracy offers the possibility of a government that will represent Hong Kong concerns more effectively in its relationship with the central government.
The word “autonomy” is not very precise. In common understanding, autonomous administration refers to self-government or a degree of freedom from external authority for a particular region in a country.
While autonomy is not addressed much by international law on a general level, it is sometimes addressed by treaty where territory is transferred from one country to another, such as was done for Hong Kong under the Sino-British Joint Declaration.
In lay terms, a “high degree of autonomy” simply suggests heightened local authority but, to make sense of it in legal terms, one would have to look more specifically at what is promised in the documents that create it. This might be an international treaty but, more often, it will be a local constitution or Basic Law, supplemented by local legislation.
China has two types of autonomy, national minority autonomy for ethnic minorities under Article 4 of the Chinese constitution, and special administrative autonomy for areas like Hong Kong under Article 31. The latter allows considerable flexibility to permit special administrative regions to have a high degree of autonomy.
To make sense of this arrangement for Hong Kong, and to judge whether the approach of the Hong Kong government is appropriate, one must look at the specific provisions in the Joint Declaration and the Basic Law.
The Joint Declaration provides that Hong Kong “shall enjoy a high degree of autonomy, except in foreign and defence affairs”. Hong Kong is to be “vested with executive, legislative and independent judicial power, including that of final adjudication”. The Joint Declaration then elaborates a number of areas in which Hong Kong is to have autonomy that are stipulated for inclusion in the Basic Law.
The Basic Law text makes it difficult to understand how the chief executive can disavow a slogan alleging Hong Kong responsibility for resolving Hong Kong’s problems. Basic Law Article 8 provides for a separate legal system, while Article 16 provides for the Hong Kong SAR to conduct administrative affairs “on its own”. Article 18 provides that no national laws apply in Hong Kong except for those listed in Annex III, and those can only relate to defence and foreign affairs.
Article 22 of the Basic Law says: “No department of the central people’s government and no province, autonomous region, or municipality directly under the central government may interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this law.”
Of course, the numerous guarantees on judicial independence, non-interference in local autonomy, human rights protection and democratic reform all go towards defining the scope of Hong Kong’s autonomy.
Implicit in the notion of autonomy is the presumption that the local government will defend its autonomy. Carrying out this responsibility encourages the central government to adhere to its commitment not to interfere in local affairs and is very much in the national interest. It is not hostile to the central government but acts merely to sustain the objectives of the autonomy arrangement.
For Hong Kong, the need to guard its autonomy is of vital importance to maintaining the rule of law and guarding Hong Kong’s core values because of the gap between the mainland and Hong Kong in this regard.
The local rule of law and liberal human rights guarantees are what most distinguishes Hong Kong from the mainland. The rule of law is the bulwark for guarding the basic rights of Hong Kong people and the legal rights of local and international investors. It underlies Hong Kong’s status as an international financial centre.
For these reasons, the subservient approach of the Hong Kong government is not in the local or national interest.
The constant lecturing by Hong Kong officials on the limits of the SAR’s autonomy, as was very much in evidence in the chief executive’s policy address, demonstrates a lack of commitment to these autonomous responsibilities under the Basic Law.
Professor Michael C. Davis, of the University of Hong Kong, specialises in constitutional law and human rights