Hong Kong is a small island off the coast of mainland China. It was ceded “in perpetuity” to Britain by China in 1842 following the latter’s defeat in the First Opium War. In 1898, following China’s defeat by Japan in the First Sino-Japanese War, a weakened China ceded surrounding territories to Britain under a 99-year lease.
In the mainland, China’s last imperial dynasty was overthrown in the Xinhai Revolution of 1911-12, and the Republic of China (ROC) was established under the Kuomintang (Nationalist Party). By 1927, civil war had erupted between the ROC government and members of the Chinese Communist Party (CCP). Though hostilities temporarily abated during the Second Sino-Japanese War (1937-1945), internal strife resumed following Japan’s defeat. By 1949, the communist forces had acquired control over the mainland, where they promptly declared the establishment of the People’s Republic of China (PRC), with the ROC government retreating to the island of Taiwan where it presides at present. The PRC has since promulgated four constitutions—1954, 1975, 1978, and 1982—the last of which having “launched the historic ‘reform and opening’ era, [serving as] the basic law of China’s new market economy and innovative political reform during the last thirty years.”
Britain initially used Hong Kong as a strategically-located trading post in the east. Many British citizens lived and worked on the island and prospered; the ethnic Chinese inhabitants remained poor and enjoyed few political rights. The island suffered dramatic population decline due to plague in the 1890’s and the Japanese occupation from 1941-45. During the post-WWII period, the island saw rapid growth in its population, economy, and in political corruption. The 1970’s brought internal political reform and the island’s emergence as a global economic hub. By the 1980’s, expiration of the 99-year lease on the surrounding British territories was on the horizon and investors became troubled by the uncertain prospects for Hong Kong’s political future. By this point, matters had significantly shifted in the relative standing of the two former empires. Britain was still in the process of withdrawing from its worldwide territories and accommodating itself to a more modest role in global affairs. Meanwhile, following major reforms beginning in 1978, China was on the economic upswing and would soon emerge as a global economic juggernaut. In light of the confluence of these factors, the two countries signed the Sino-British Joint Declaration in 1984 which established the framework by which sovereignty over the leased territories along with Hong Kong itself would be returned to the People’s Republic of China. The treaty stipulated that sovereignty over Hong would be conferred on the PRC on July 1, 1997, but that the island would retain a high degree of domestic autonomy and operate according to its own constitution-like Basic Law. Article 5 of the Basic law provided that “The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years.” The transfer took place as stipulated.
On one side of the border there is a well-established common-law system that rests upon individualism and the doctrine of separation of powers. On the other side of the border there is an emerging legal system that is partly based on socialist ideology, partly based on the civil-law system, and increasingly influenced by the common-law system. It subscribes to the supremacy of the soviet and the people’s democratic dictatorship, and operates largely on a central planning system.
At the heart of this arrangement lay a tension: Can one country operate according to two quite different systems and yet remain one country? What are the outer boundaries and how will disputes about their ultimate contours be negotiated?
Democratic Development Under the Two Systems Paradigm
The recent controversy in Hong Kong (see a timeline of events here) regards the extent to which the PRC is willing to allow the notion of two systems to be taken. This dispute has recently centered on the mode of selection for Hong Kong political leadership. The Basic Law provides for the establishment of a Chief Executive and a Legislative Council to administer and legislate for the SAR. Article 45 provides that:
The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.
Article 68 provides that:
The method for forming the Legislative Council shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the election of all the members of the Legislative Council by universal suffrage.
Thus both provisions hold out the aspiration of eventual election of the SAR leadership by universal suffrage.
Importantly, however, there are competing goals embodied in the Basic Law. Article 23 provides that:
Hong Kong shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.
Anyone familiar with revolutionary communist ideology will recognize what is essentially a non-compete clause. The Party wishes to avoid having a province of the country develop into locus of counter-revolutionary activity that could undermine the progress of “the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants” (Preamble to PRC Constitution 1982). However, Hong Kong never enacted the so-called national security law required under Article 23. When the government proposed implementing legislation in 2002, “the proposal immediately sparked off strong opposition from many quarters, worrying that the proposed legislation had gone well beyond the existing law and could be used as a means to suppress any dissenting views.” Large public demonstrations led to the withdrawal of the national security bill the following year and the beginning of the democratic movement in Hong Kong.
The democratic movement within Hong Kong has consisted of several distinct groups making different demands. A common element has been a call by activists for the fulfillment of the aspirational language of Articles 45 and 68 regarding universal suffrage. The most recent events have focused on the method of electing the Chief Executive. Annex I of the Basic law provides that “The Chief Executive shall be elected by a broadly representative Election Committee in accordance with this Law and appointed by the Central People’s Government.” The election committee serves five-year terms and consists of 800 members, 200 from each of 4 sectors of Hong Kong society. As Johannes Chan explains, back in 2007, the PRC’s National People’s Congress Standing Committee (NPCSC) “rejected the claim for direct election in 2012, but laid down a timetable that the chief executive would be returned by direct election in 2017, and the Legislative Council could be returned by direct election thereafter, which means 2020 at the earliest.” Commentators predicted that the NPCSC would never tolerate the inherent unpredictability of fully free elections and would seek alternative means to control the outcome. Finally, on August 31, 2014, the PRC announced that, though the Hong Kong people would vote for the Chief Executive directly and by universal suffrage in 2017, the PRC would retain final say on the nomination of candidates for that office. It was then that the protests we have observed in the headlines erupted.
The PRC’s fear of subversion by counter-revolutionary forces is an interesting issue. This concern had its own logic in say the 1950’s. But contemporary China’s brand of state capitalism is hardly revolutionary. The main problems in this system today are how to maintain high economic growth rates, growing inequality, the inevitable corruption inherent in a system of decentralized state-based enterprise, and, of course, how to keep a national single-party apparatus in control. Ironically, the challenge constituted by Hong Kong boils down to a statement made recently by C.Y. Leung, Hong Kong’s current Chief Executive:
“If it’s entirely a numbers game – numeric representation – then obviously you’d be talking to half the people in Hong Kong [that] earn less than US$1,800 a month,” he said in reference to the median per capita wage. “You would end up with that kind of politics and policies.” [Financial Times]
But what sort of policies might working class people be more inclined to vote for—exploitation of workers and peasants or a more robust set of social welfare policies? Nothing could be more ironic than that the Chinese Communist Party would fear subversion from a population seeking a social welfare state. What group “led by the working class and based on the alliance of workers and peasants” would fear such a call or consider it subversive? The cloak of communist rhetoric cannot disguise the fact that it is the Chinese Communist Party that is the counter-revolutionary force in China.
 “Chinese Constitutional Dynamics” by Wang Zhenmin and Tu Kai, from Constitutionalism in Asia in the Early Twenty-First Century, by Albert H.Y. Chen, ed.
 “Hong Kong’s Constitutional Journey, 1997-2011” by Johannes Chan, from Constitutionalism in Asia in the Early Twenty-First Century, by Albert H.Y. Chen, ed.