Date
28 May 2017
Beijing has over the years introduced several additional provisions into Hong Kong’s Basic Law, which did nothing but compromise its original design. Photo: Bloomberg
Beijing has over the years introduced several additional provisions into Hong Kong’s Basic Law, which did nothing but compromise its original design. Photo: Bloomberg

What is missing from the Basic Law?

In my article last week, I used the term “executive-oriented” to point out the first problem with the Basic Law. 

Essentially, the problem is that some of the systems and principles originally intended in the Basic Law are unable to be implemented because the law itself simply can’t keep up with the changes of the political environment.

The second problem with the Basic Law lies in the fact that it doesn’t have any clause that deals with political parties, nor did it take into serious account the role of political parties when laying down the framework for the relationship between the executive and legislative branches.

I believe anybody who roughly understands the democratic system knows that political parties play a pivotal role in integrating the different forces that come to power through elections, and ensuring the smooth operation of the democratic system. 

As long as there are elections, there will be political parties.

However, the reason why the Basic Law makes no reference to political parties whatsoever is because back in the days when the law was drafted, any mention of other political parties remained a taboo subject under the one-party dictatorship on the mainland.

At that time, members of the drafting committee for the Basic Law probably believed naively that the chief executive would be able to achieve executive dominance even without support from political parties. This has proven to be unrealistic given what has happened after the handover.

The Basic Law made no reference to political parties because it is a taboo, and it didn’t mention the role of ruling parties either because it is an even bigger taboo subject.

Under the system of the one-party dictatorship on the mainland, there can only be one ruling party, which is the Chinese Communist Party, and as part of China there cannot be any ruling party in Hong Kong either.

However, without a ruling party, the chief executive can hardly secure any vote in the legislature.

Tung Chee-wah and Donald Tsang Yam-kuen both made numerous efforts to try to consolidate support from the various pro-establishment parties in the Legislative Council, through moves such as forming alliances with them or appointing their key members to the Executive Council. However, none of the efforts succeeded in securing enough votes on key issues at critical moments.

One can imagine that if our chief executive was the leader of a majority party in the Legislative Council, then he would very likely be able to secure enough votes for his policy initiatives on a regular basis.

Therefore, in order to improve the relationship between the executive and legislative branches and facilitate a sustainable partnership between them, the Basic Law must take into account the roles of political parties and the ruling party. There might not necessarily be clauses directly related to political parties, but their role must be given thorough consideration when it comes to the overall design of our political structure.

That may require changes in at least three aspects.

Firstly, the existing laws that prohibit the chief executive from joining any political party must be abolished. Second, the administration must acknowledge the importance of political parties, legislate on their founding and running and facilitate their development. And lastly, the government must reform the existing electoral system of “List Proportional Representation”, which only gives rise to a large number of small political parties and hinders the development of large ruling parties.

The third problem with the Basic Law is that Beijing has over the years introduced several additional provisions into it, which did nothing but compromise its original design. An example of this is the chief executive’s power to request the NPC standing committee to interpret the Basic Law.

The power to seek interpretation of the Basic law would have rested with the Court of Final Appeal had it not been for former Chief Executive Tung Chee-hwa, who violated the mechanism because he didn’t want to obey a decision made by the Court of Final Appeal in the late 90s over the right of abode enjoyed by mainland children born to Hong Kong parents.

To make matters worse, Beijing granted Tung this right without setting any prerequisite for it. As a result, our chief executive can basically ask the NPC standing committee to overthrow any ruling made by the Court of Final Appeal which he doesn’t like.

Tung’s disruption to the original system laid down in the Basic Law with regard to its interpretation has seriously undermined the rule of law and judicial independence of Hong Kong. The repercussions of his action continue to this day.

This article appeared in the Hong Kong Economic Journal on July 20.

Translation by Alan Lee

[Chinese version 中文版]

– Contact us at [email protected]

RC

Associate Professor of Law at the University of Hong Kong

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