Beyond 2047: The Fate of the Basic Law

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What happens to the Basic Law after 2047 is uncertain. LegCo members share their hopes for Hong Kong’s legal structures and institutions when, theoretically, the border disappears.


On listening to an American podcast on the death penalty, HT’s Editor-in-Chief, Andrew Work was struck by the variation in states that did, and did not, have the death penalty. It caused us to cast our eye forward to 2047 to ask  our leading politicians what legal structures and practices were most worth preserving 32 years from now, perhaps  preserving Hong Kong’s character when it is all ‘China’. The results are surprising.

WE ASKED: Apart from universal suffrage, what do you think is/are the most important legal institution(s) in Basic  Law that we must preserve? (e.g. prohibition of capital or corporal punishment, property rights, right to divorce, racial equality, etc.)

By taking the issue of the day (constitutional reform) out of the equation, we were able to reveal something unexpected: Our legislators from all camps agree on quite a lot. Legislators from both camps believe China should become more like Hong Kong – although they highlighted different aspects of Hong Kong’s uniqueness. Some called for the discussion to start now, recognising that 2047 could mean a 100% reversion to Chinese law if all parties didn’t open the conversation now or soon.

Freedom of speech and rule of law were expected to, and did, figure high on the list, but not always from whom you  might expect. Laws concerning marriage, bans on corporal punishment and property rights also came in for mention. Common Law was seen as an asset. Privacy in communications, freedom of the press and right of assembly were key. Some waxed poetical, others were straight to the point. All in all, our legislators from across what is  currently a bitterly divided spectrum had much in common. Perhaps there is more hope for a more harmonious future after all.

Priscilla Leung Mei-fun (梁美芬, GC – Kowloon West, Business and Professionals Alliance for Hong Kong):
[Laws on] rights to marriage, freedom to choose one’s occupation, [prohibition of] capital punishment, property sales, probably will not change in 2047. I don’t think that will actually create a difference…The laws of Hong Kong can be divided into two categories: public power and private liberty. Private liberty will not be affected by the ‘fifty years’ restriction. It is not going to happen that contracts and marriage certificates signed now would be void by 2047. What 2047 implies is the evolution of our [political] system, [but not private matters].

After fifty years, Hong Kong should still remain a capitalist society. That’s what we are most concerned about. It is also possible, though, that a welfare state might emerge in Hong Kong, with high tax rates and large welfare provisions, like France. Hong Kong seems to be heading that way.

I also believe that China’s law regarding private matters might synchronise with Hong Kong in the future. You can see their regulations on capital stocks and contracts are increasingly similar to Hong Kong’s. They are looking at our  case of abolishing death penalty as well. Their civil code and commercial laws would only become more alike with Hong Kong’s.

It should stay the same that Hong Kong exercises Common Law. It should also be ensured that principles like freedom of expression, freedom to choose one’s occupation, free flow of capital and commodities are well protected. The future political system would depend on the results of our discourse at present. I also hope that human rights will continue to be upheld. Ideally, I hope we will not have to pay our taxes to the central government just as it is now.

With all that being said, all these should founded upon the premises of Chinese sovereignty over Hong Kong and respecting the central government’s relations with regional governments.

Lee Cheuk-yan (李卓人, GC – New Territories West, Labour Party):
I believe that articles upholding Hong Kong’s core values like human rights and ‘one country, two systems’ in the Basic Law should remain intact. Frankly, I hope the Chinese constitution would expand its human rights protection, just as we have been fighting for since a long time ago—to change the Chinese constitution. […] Also, Hong Kong’s Court of Final Appeal should have the right to interpret the law. […] The Bill of Rights Ordinance should be kept as well. International human rights conventions that have been applicable to Hong Kong should remain effective [after 2047]. International Labour Organisation Convention should be added onto that list as well. The right to strike, freedom of assembly and freedom of expression should be preserved.

Lee Cheuk-yan: “Frankly, I hope the Chinese constitution would expand its human rights protection, just as we have been fighting for since a long time ago—to change the Chinese constitution.”

Wong Kwok-kin (黃國健, GC – Kowloon East, Hong Kong Federation of Trade Unions):
I believe that many political rights, ‘one country, two systems’, and differentiation between Hong Kong and China are exactly what are precious to Hong Kong. There need be consultation from different parts of the society after 2047 on whether Hong Kong should keep Basic Law or 100% follow the Chinese constitution. Such decisions should not be made in haste, because this is so important to us. […] Everyone should think about this. Political organisations should hold meetings and think through it too.

Wong Kwok-kin: “Everyone should think about this. Political organisations should hold meetings and think through it too.”

Chan Yuen-han (陳婉嫻, FC – District Council Second, Hong Kong Federation of Trade Unions):
‘One country, two systems’ is the result of broad-based consultation and thorough consideration. I hope there would not be too many changes in 2047. I don’t think changes are necessary. […] The present laws should be kept intact. I don’t see the need to change, as the spirit of our laws has become consensus among our society. In fact, in the process of drafting the Basic Law, many views have been taken into account. It is bilaterally agreed that ‘the river water will not intervene in the well water,’ (河水不犯井水) so is ‘dance and derby as it has always been.’ (馬照跑 舞照跳)

Bear in mind that it is bilateral: both Hong Kong and China agree to it. It was acknowledged by both sides in the Sino-British negotiation too.

Chan Yuen-han: “I don’t see the need to change, as the spirit of our laws has become consensus among our society.”

Charles Peter Mok (莫乃光, FC – Information Technology, The Professional Commons):
Hong Kong people must be on guard against the erosion of the freedom of speech we enjoy — our freedom of expression and the press, the privacy of our communications, and our rights to assembly. There is an alarming trend of growing media control by mainland influence and self-censorship of the press, and government limiting choice of speech, media and programming for our citizens, at the expense of stifling competition in our creative industry. These freedoms are the cornerstone of Hong Kong’s past success and future opportunities, and must be the most important core value for us Hong Kong people.

Ronny Tong Ka-Wah (湯家驊, GC – New Territories East, Civic Party):
First of all, the Basic Law does not declare itself ineffective after 2047. But if you’re asking what is most precious for Hong Kong, it is of course the rule of law. There should not be any changes in our judicial system.
(HT: Including Hong Kong’s right to final appeal?)
All aspects of our judicial system.

Paul Tse Wai-chun (謝偉俊, GC – Kowloon East, no political affiliation):
There are of course many facets of the legal institution that we should seek to preserve whether under the Basic Law or otherwise. Apart from universal suffrage, and the media control by mainland influence and self-censorship of the press, and government limiting choice of speech, media and programming for our citizens, at the expense of stifling competition in our creative industry. These freedoms are the cornerstone of Hong Kong’s past success and future opportunities, and must be the most important core value for us Hong Kong people.obvious paramount importance of diverse human rights and freedom provided under the International Covenant on Civil and Political Rights and adopted under the Basic Law, I would in particular stress the significance of the rule of law and the right of private ownership of property.

The rule of law is the bedrock and guardian of all other institutions. A weakened rule of law undermines the foundation of all other rights and freedom. It is also the relatively intact rule of law in Hong Kong that sets us apart favourably from not only all other provinces and cities in the Mainland but also other countries and regions that may have gone further than HK in their journey towards democratisation.

Despite its inevitable drawbacks, capitalism has served Hong Kong well over the years both before and after 1997. Hong Kong is one of the few if not the only jurisdiction in the world that stipulates its capitalist system and way of life shall remain unchanged for 50 years. Protection of the right of property is fundamental for and an indispensable element of capitalism.