How Hong Kong independence can be legal

April 13, 2016 14:28
Protesters camp in Central during the wanming days of 2014 street protests. Many of them have joined groups that are calling for self-determination. Photo: Time

Hong Kong officials have toned down their rhetoric against an emerging pro-independence mindset.

Recently, Leung Chun-ying smilingly said that his administration puts local interests first and that Hong Kong does not need independence to protect its own well-being.

In a previous column, I said that Hongkongers should respond positively to Beijing's dovish approach to the issue.

Moreover, an independent Hong Kong might be in Beijing's best interest and a peaceful divorce is not implausible and would be a win-win situation.

Is Hong Kong independence legally possible?

Despite its iron rule, the Communist Party respects contracts and, and to a certain extent, it lives up to its word.

How, then can independence be legal?

One scenario is that the Communist Party collapses and China plunges into anarchy. Hong Kong could justifiably secede for its own sake.

Another is if the governing authority falls apart and causes the constitution to cease functioning. That would leave the constitutionality of an independent Hong Kong academic.

Hong Kong should be prepared for any such eventuality.

Some might think these scenarios are remote but I suggest they study history.

In 1911, a handful of provinces including Guangdong, Jiangsu, Zhejiang, Shandong and Sichuan revolted against a weakened Qing dynasty and declared independence.

The uprising came to be known as the Xinhai Revolution.

Fast forward 105 years and we have a China that spends more money on internal security than national defense and a Communist Party that keeps warning about its imminent collapse from corruption.

These are signs the communist infrastructure is not impregnable.

Even in the present circumstances, Beijing might decide to let go if it thinks the split will do more good than harm to its own interests.

But it could just as well keep its iron grip on Hong Kong and refuse to compromise on its territorial integrity.

Again, there are historical precedents.

For centuries, China had no central authority and had different rulers such as during the Three Kingdoms (220–280 A.D.) or the Northern and Southern dynasties (420 to 589).

These were independent kingdoms which lasted longer than some dynasties that controlled China -- the Qin dynasty (221 B.C.–206 B.C.) and Yuan dynasty (1271–1368).

Mao Zedong spearheaded a split in 1931 when he proclaimed the Chinese Soviet Republic in Jiangxi province.

That led to the two Chinas we know today -- the communist-ruled mainland and the Kuomintang-ruled Taiwan, also called Republic of China.

How would a Republic of Hong Kong sit in this equation?

Beijing resolutely insists that Hong Kong has been part part of China since the Qin dynasty, although many Hong Kong people would disagree.

Records of the Grand Historian, a monumental history book on ancient China,  says Hong Kong was annexed by Qin Shi Huang (秦始皇).

He sent convicts to the new territory and subsequently began establishing settlements, in the same way European settlers colonized many parts of Asia and Africa.

These aside, Hong Kong independence could be legally invoked under the concept of "material non-compliance" which treats the constitution as a contract.

If one party is in breach of the contract, the other could rescind it.   

In the context of the Basic Law, that concept would apply to clauses relating to Hong Kong's autonomy and the promise of "Hong Kong people ruling Hong Kong" which have been flouted by Beijing.

That would invalidate the constitution in its entirety including Article 1 which stipulates that Hong Kong is an inalienable part of the People's Republic of China. 

Beijing’s “material non-compliance”  is the basis of calls for self-determination from newly formed political groups.

Hong Kong independence is an interesting topic for study.

In the 1950s and 1960s, at the height of a crackdown on communist propaganda, the British colonial administration allowed a number of leftist groups to operate in the name of academic research.

Can Beijing and Hong Kong show that kind of accommodation?

We are reminded of the US Civil War when southern states fought to secede from the union.

In Japan, Okinawa and some northeast prefectures wanted to be independent nations.

We have learned enough from history to confidently say that a free society like Hong Kong should allow discussion of such a sensitive subject that diverges from the official line.

This article appeared in the Hong Kong Economic Journal on Apr. 11.

Translation by Frank Chen

[Chinese version 中文版]

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Beijing's flouting of certain vital clauses in the Basic Law could cause it to be invalidated under the concept of "material non-compliance". Photo: Internet

Former full-time member of the Hong Kong Government’s Central Policy Unit, former editor-in-chief of the Hong Kong Economic Journal