The Basic Law is Not a Gift Beijing Can Withdraw

At a conference last Saturday I noted a common assumption among all the Mainland scholars who had come to speak, which was that Hong Kong has been granted a very special gift in the form of the Basic Law and in being allowed to be a Special Administrative Region. From this position it is not surprising that many scholars find irritation in the way the majority of Hong Kong people have reacted to the NPCSC framework.

To take the usual metaphors, the jade gift with which Beijing had sincerely welcomed this city back to the motherland has been accepted by an ungrateful and spoiled people. Beijing had welcomed back a lost child corrupted by “foreign interference” to have a “superiority complex” and harbour separatist leanings. Having offered the carrot, Beijing should be applauded for not having turned to the stick.

The problem with this is that the initial assumption is false, but to challenge this assumption is to tread in a very sensitive area. Rightly or wrongly, from a strictly legal perspective Hong Kong was and the territories of Kowloon up to Boundary Street were ceded in perpetuity. The Joint Declaration was not merely the formalisation of a physical handover of power, but also an agreement upon which sovereignty of Hong Kong would change. The Basic Law was not so much a gift to the Hong Kong people but a condition upon which China could claim legal sovereignty over this city.

There is also both a popular and moral case to be made for this understanding of the connection between the Basic Law and sovereignty. At the time Hong Kong was predominately a city of immigrants and refugees, the majority of whom had sought protection under British colonial authority from the authority of Beijing. These people were and still are Chinese, are loyal to China, but do not recognise the Chinese Communist Party as the rightful government of China. Indeed, one of the more pressing issues of the Sino-British relations in the lead-up to 1997 was how to ensure significant communities of Hong Kong people could be made to accept the arrangement. The guarantees that the Basic Law seemed to promise not only ensured investor confidence in the city, but also helped ensure social cohesion.

It is therefore wrong to assume that the Basic Law is Beijing’s gift. Rather, it is on what Beijing’s sovereignty of this city is based. It was a deal made between three sides: Beijing, London and Hong Kong. Beijing gained legal sovereignty and the closure of a historic period with a narrative compatible with its own national history; and Britain could withdraw from an impractical and increasingly embarrassing holding with its pride intact and with a clear conscience believing it had safeguarded the lives and way of life of its last colonial possession.

But it is Hong Kong’s side of the deal that is so shamefully missing from the current debate. The Basic Law represented a deal with Beijing to accept its national narrative, to accept the national sovereignty of the Chinese Communist Party on two conditions: firstly, that Hong Kong people would run Hong Kong; and secondly, that the Hong Kong way of life would be preserved for 50 years.

As legal scholars debate the finer points of article 44 and article 45 of the Basic Law, we should not forget that for the vast majority of people in this city the Basic Law represents these two conditions. They do not fret over interpretation, but they feel both ashamed and betrayed when they watch “their” government standing in the crowds as Beijing’s emissaries proclaimed the NPCSC framework. They feel ashamed and betrayed as they experience the slow suffocation of those values upon which their lives in this city were built, and must stand their powerless to the change. They feel threatened by the growing suspicions that they find themselves having about freedom of the press, and in the questions that now hang over a police force that had for a generation been rightly touted as “Asia’s Finest”. If Hong Kong has been spoiled, as some insist on believing, it is these concerns, the concerns of the home that they have found in this city, that have spoiled them.

I was told on Saturday that Beijing seeks consensus, but also that “politicisation is dangerous”. But you cannot find consensus if you do not allow the other side to speak. I believe many Hong Kong people understand Beijing’s position. It would be a great step forward to finding a genuine consensus if Beijing were prepared to question this one assumption.

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