Date
12 December 2017
As far as the people of Hong Kong are concerned, what truly matters about the Basic Law is whether it has a future, and if yes, what kind of future it will have. Photos: HKEJ, CNSA
As far as the people of Hong Kong are concerned, what truly matters about the Basic Law is whether it has a future, and if yes, what kind of future it will have. Photos: HKEJ, CNSA

The future of the Basic Law

Hong Kong’s constitution, the Basic Law, may be ridden with problems, but if we look at it from another angle, the law is definitely a ground-breaking creation for both Hong Kong and mainland China.

Throughout the history of China, it has been extremely rare that two social and political systems can co-exist peacefully, not to mention that the Basic Law is so innovative in the sense that it has laid down a clear timetable for the development of the two systems.

As far as the people of Hong Kong are concerned, what truly matters about the Basic Law is whether it has a future, and if yes, what kind of future it will have.

Article 5 of the Basic Law stipulates that “the socialist system and policies shall not be practiced in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years.”

That said, does the clause imply that the Basic Law will automatically expire on June 30, 2047?

Legally speaking, the Basic Law doesn’t have any expiry date. However, it is inevitable that many people may interpret the wording “remain unchanged for 50 years” as throwing up the possibility that things could change after 50 years.

In other words, there is a widespread concern among the local people that after 50 years of implementation of the Basic Law, Hong Kong could integrate into the socialist system of the mainland, and by that time the Basic Law would become null and void automatically.

Another major concern in society is that whether the HKSAR administration has the constitutional power to renew land leases that are due to expire before June 30, 2047, so that they can continue to be valid after that.

In fact the Basic Law has already taken care of that. Article 123 stipulates that “where leases of land without a right of renewal expire after the establishment of the Hong Kong Special Administrative Region, they shall be dealt with in accordance with laws and policies formulated by the Region on its own.”

Even though 20 years on after the handover, the HKSAR government hasn’t officially enacted Article 123 yet, the Executive Council actually passed a resolution on land policy shortly after the handover, authorizing the grant of new land leases that would go beyond June 2047.

As of now, the government has approved quite a number of new land leases that would go beyond June 30, 2047. Yet some academics are worried that since the granting of these new land leases lacks legal grounds, they might be unable to fully protect the property rights of landowners.

In my opinion, the concerns are hardly warranted, because the Basic Law has already authorized the HKSAR administration to handle the issue of land leases in accordance with our own law.

As such, all the government needs to do is to enact Article 123 in due course so as to provide solid legal grounds for granting or renewing land leases that will go beyond June 30, 2047.

Back in the 1980s during the Sino-British talks on Hong Kong’s handover, former paramount leader Deng Xiaoping said repeatedly in public that “if 50 years are not enough, there can be another 50 years for “one country, two systems”.

I guess what Deng had in mind when he made that promise is that he believed by 2047, China would be able to catch up with Hong Kong in terms of economic development. And if the mainland is still lagging behind Hong Kong economically by then, it should be given longer time.

Even though Deng didn’t specify whether “one country, two systems” should change once the mainland is on a par with Hong Kong economically, I believe it was likely that he would have thought there is no need for change after 2047.

Nevertheless, whether or not “one country, two systems” is going to change after 50 years of its implementation, a decision has to be made over what would happen to Hong Kong after June 30, 2047.

In order to provide substantial reassurance for the public and investors over the outlook of long-term investment and mortgage arrangements for land leases in Hong Kong, that decision must be made before June 30, 2047.

As over one-third of this 50-year period enshrined in the Basic Law has already elapsed, Hong Kong and Beijing perhaps have to make that critical decision 20 to 25 years before 2047, i.e. between 2022 and 2027.

Given the seriousness of the issue, I believe public discussion over the future of our city will intensify and be given more importance in the near term.

This article appeared in the Hong Kong Economic Journal on Nov 18

Translation by Alan Lee

[Chinese version 中文版]

– Contact us at [email protected]

JC/RC

Associate Professor of Law at the University of Hong Kong

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