Written evidence from Tim Summers (HNG0607)

Summary

• The Joint Declaration has been well implemented in the 30 years since its signature in 1984. Following a smooth transition of sovereignty to China in 1997, Hong Kong has maintained the elements of its separate system at the heart of ‘one country two systems’ and the Joint Declaration’s promises.
• There have been challenges to ‘one country two systems’, including over interpretations of Basic Law provisions on right of abode and constitutional development. But Hong Kong society remains vigilant, and ‘two systems’ has pushed back against ‘one country’ on issues such as national security legislation and national education. Interpretations of many developments in Hong Kong are highly contested.
• The current debates around constitutional development are of a different order. Without consensus on the way forward, Hong Kong will face something of a constitutional crisis, exacerbated by existing governance challenges. While the framework for reform on offer reflects ‘one country two systems’, the debates around it have brought the compromises under ‘one country two systems’ into sharper focus and undermined confidence among many in Hong Kong.
• However, the ‘one country two systems’ arrangement remains the only realistic way of ensuring Hong Kong’s stability and prosperity, taking account of both Chinese sovereignty and the benefits of maintaining Hong Kong’s high degree of autonomy and separate system. It can continue beyond 2047.
• The UK government has good processes in place to monitor the implementation of the Joint Declaration. Recent public positions, including on constitutional development, have been cautious, and quicker and firmer comment should be considered, especially on issues of direct relevance to the Joint Declaration.

About the author

Dr. Tim Summers is a Senior Consulting Fellow on the Asia Programme at Chatham House, teaches at The Chinese University of Hong Kong, and speaks and consults on Chinese politics and policy issues. He has worked on and in China, including Hong Kong, since the mid-1990s. He covered Hong Kong politics for the British Consulate-General in Hong Kong from September 1997 to September 2001, and was later British Consul-General in Chongqing (2004-2007). He left the diplomatic service and moved back to Hong Kong in late 2007. This evidence reflects his personal views.

I. Introduction

1. This evidence has been written during a crucial period for Hong Kong. It aims to provide historical and analytical context for these events by examining two of the five elements of enquiry identified by the Committee: the FCO’s monitoring of the Joint Declaration, and the UK government’s (henceforth ‘HMG’) position on political and constitutional reform.
2. Although the inquiry’s terms of reference refer to ‘the FCO’s monitoring of the implementation of the Joint Declaration and Basic Law’, a distinction needs to be drawn between the two. The 1984 Sino-British Joint Declaration is an international agreement to which the UK is a signatory, and which promises Hong Kong ‘a high degree of autonomy except in foreign and defence affairs’. The 1990 Basic Law (effectively Hong Kong’s mini-constitution) is a Chinese law which implements Joint Declaration commitments, but also elaborates on or modifies them in a number of places.
3. The evidence begins with a comment on the UK commitment, followed by an evaluation of the central authorities’ policies towards Hong Kong,[1] fundamental to assessing whether the Joint Declaration has been implemented. It then outlines the current process of constitutional reform and comments briefly on politics in Hong Kong. The evidence concludes with discussion of HMG’s policy.

II. The UK commitment

4. The main requirements on the UK under the Joint Declaration were to restore Hong Kong to China in 1997, and to work in the run up to 1997 to ensure a smooth transition. The first of these was clearly fulfilled, and – in spite of numerous issues of controversy between the two countries in the period between 1984 and 1997 (in particular over the legislature) – a smooth transition was delivered.
5. Ministers made political commitments to ‘pay the closest possible attention to the implementation of the Joint Declaration’ (as put by then Foreign Secretary Robin Cook, speaking in Hong Kong on 21 January 1998). This included a commitment to continue to report regularly to Parliament (every six months) until at least 2000; this was subsequently extended.

III. Central government policy towards Hong Kong

6. Since the early 1980s, the concept under which Chinese policy towards Hong Kong has been constructed is that of ‘one country two systems’ (henceforth ‘OCTS’), emphasizing Hong Kong’s post-1997 status as part of China and the maintenance of its separate system. For the central authorities, this reflects deep-seated nationalism as well as pragmatism, both as to what was realistically deliverable in the pre-1997 negotiations over Hong Kong’s handover and because of the benefits to China’s broader interests which a separate system in Hong Kong offers. The important role Hong Kong has played in the internationalization of China’s currency, the RMB, or the use of Hong Kong’s legal system by Chinese companies are current examples of this.
7. The basic policies set out in Article 3 of the Joint Declaration have been well implemented. Since 1 July 1997, Hong Kong has maintained the elements of its separate system: continuity in the legal system, local residents running Hong Kong, rights and freedoms largely maintained, and courts operating independently. Hong Kong remains a free port and separate customs and immigration territory, has independent government finances, is an open international financial centre, reaches its own cultural and commercial agreements with other countries and territories, etc. All of this highlights that the fears of some that Hong Kong will become ‘just another big Chinese city’ are a long way from being realised.
8. Although China committed that its basic policies would remain unchanged for 50 years, this should not mean the default scenario in 2047 is for them to end (comparisons between 1997 and 2047 are misleading – there will be no change of sovereignty in 2047). Continuity would be easier to manage. Further, Deng Xiaoping said several times in the 1980s that China’s policy would not change after 50 years either.[2]
9. Central government officials have consistently stated their commitment to OCTS and Hong Kong’s ‘prosperity and stability’. However, the publication in June 2014 of a central government White Paper raised concerns in Hong Kong – not for the first time – that the centre’s policy towards Hong Kong was changing, in particular by seeking to assert greater control over Hong Kong, and by challenging the independence of the judiciary. The White Paper provoked a widespread negative reaction from people across Hong Kong (see Section VI), discussed at length elsewhere. The view of the author of this evidence remains that the White Paper is a reiteration of a commitment to OCTS, not an attempt to redefine the centre’s relationship with Hong Kong.[3]
10. Since then, President Xi Jinping, National People’s Congress (NPC) Chair Zhang Dejiang, the NPC Standing Committee (NPCSC) decision of 31 August, and articles in the official People’s Daily have said that the centre’s basic policy towards Hong Kong ‘has not – and will not – change’.[4] It should be noted that, however interpreted, the White Paper has no legal effect in Hong Kong. The provisions of the Basic Law (and subsequent interpretations or amendments of it by the NPCSC) remain the legal and constitutional basis for the centre’s policy towards Hong Kong.

IV. Implementation of OCTS

11. Whatever the policy statements, implementation is key. The interpretation of many developments in Hong Kong is highly contested. There have clearly been some challenges to OCTS and Hong Kong’s high degree of autonomy. And the precise boundaries of ‘one country two systems’ remain subject to ongoing contestation and negotiation, particularly around a number of important issues (for reasons of space, this section is selective).
12. One area of contention since 1997 has been interpretations of the Basic Law by the NPCSC. The first followed the Hong Kong SAR government’s decision in 1999 to seek an interpretation following an unfavourable judgment by the Court of Final Appeal on the right of abode in Hong Kong (popular opinion broadly supported the government in this). The mechanism for the court to seek an interpretation in the course of hearing a case is spelt out in Basic Law Article 158, and was followed in an unrelated case in 2011. The 1999 case was controversial as the request for interpretation came from the government after the conclusion of the case, though this exceptional procedure has not been repeated since.
13. Another area of contention, especially in the late 1990s, was whether rights of protest and assembly would be maintained, including for the Falungong, an organization outlawed in mainland China in 1999. However, since then there has been largely uninhibited public debate around controversial issues and substantial public protests (as well as increasingly unruly behaviour in Hong Kong’s legislature). These are evidence of Hong Kong’s vibrant ‘second system’, and implementation of Article 3(5) of the Joint Declaration which goes beyond expectations in the run up to 1997. However, it remains to be seen what impact the recent ‘Occupy’ protests will have on the authorities’ approaches to future protests.
14. There have been suggestions that the central Government’s liaison office in Hong Kong (CPGLO) has interfered in Hong Kong’s autonomy. If this were the case it would undermine the high degree of autonomy provided for in the Joint Declaration and Basic Law. Specific examples of interference in areas which do not relate to the remit of the central government are hard to come by, though there is an impression among many in Hong Kong that the overall profile of the Liaison Office has increased since 1997, and that this creates risks to the maintenance of Hong Kong’s high degree of autonomy.
15. One area where central government officials have clearly been prominent over recent months has been in the ongoing debate about constitutional development, though it should be noted that both the central and Hong Kong governments say that this is an issue over which the centre has a legitimate say (see Section V).
16. The debates about these issues in Hong Kong show that people remain vigilant and prepared to defend the high degree of autonomy they were promised in the Joint Declaration. One high-profile examples of this was in 2002-3 when the Hong Kong government proposed national security legislation required by Basic Law Article 23; this led to protests by around half a million people, after which the government shelved its proposals. The 2005 resignation of then Chief Executive C.H.Tung is generally seen as a consequence of this. A second example was the response to proposals for ‘national and moral education’. These were not required by the Basic Law, but were drawn up slowly by the Hong Kong government, reportedly following comments by then President Hu Jintao in 2007. The issue only came to a head in 2012, when widespread public opposition (led by concerned students and parents) again led the government to shelve proposals.
17. Both of these cases show ‘two systems’ pushing back effectively against Hong Kong government proposals which can be seen as expanding the scope of ‘one country’, and that it can be difficult for formal changes to be made in Hong Kong if these face substantial local opposition (either in strength or breadth).

V. Constitutional reform

18. The areas of greatest controversy have been over constitutional reform, the means of selecting Hong Kong’s Chief Executive (head of government) and LegCo (the legislature).
19. After a public consultation and report submitted by the Hong Kong government, the latest decision on these issues was set out on 31 August 2014 in Beijing by the National People’s Congress Standing Committee (NPCSC). The NPCSC affirmed an earlier decision that the 2017 Chief Executive ‘may’ be chosen by universal suffrage, in line with the ‘ultimate aim’ set out in the Basic Law.
20. Key points of the decision are:
1. Candidates to be nominated by a ‘broadly representative nominating committee’, constituted in line with the 1,200-member committee which had chosen the (current) Chief Executive in 2012.
2. This committee should nominate ‘two to three candidates…in accordance with democratic procedures’, endorsed by more than half the members of the nominating committee.
3. All eligible voters in Hong Kong would then have the right to vote and elect one of the candidates.
4. The Chief Executive-elect (whom the NPCSC stated should ‘love the country and love Hong Kong’) would need to be appointed by the central government.
21. A nominating committee is required by Article 45 of the Basic Law, and although many in Hong Kong had advocated various proposals with a role for public nomination, both the Hong Kong government and mainland officials had made clear that there was no prospect of amending the Basic Law on this point. The committee’s formation based on four broad sectors (industry and commerce, professions, labour and community, political) means that a majority of its members are likely to be establishment, ‘patriotic’, and business figures, making it difficult for non-establishment, ‘anti-Beijing’, or grassroots candidates to be endorsed. This may be exacerbated by the upper limit of three candidates.
22. Initial responses in Hong Kong ranged from acceptance through resignation to strong disappointment, especially over the provision that candidates require nomination by half of the committee. Critics pointed out that this is in contrast to a nomination threshold of 12.5% in the earlier Election Committee. This could have been set lower, though it should be noted that the comparison with the earlier Election Committee is not equivalent as committee members should be able to nominate multiple candidates in 2017 rather than nominating one candidate in 2012. In fact, the exact nomination process for 2017 remains to be agreed, and could be the subject of creative discussion by Hong Kong’s politicians. Some believe that moderate pan-democrats would be allowed to stand, and earlier in the summer central officials said that not all pan-democrats were unpatriotic.[5]
23. The decision should be followed by a process of local discussions and a Hong Kong government bill setting out detailed amendments of the method for selection of the Chief Executive (including, presumably, issues such as whether preferential voting could be used if three candidates stand). Endorsement by two thirds of legislators (i.e. 47 out of 70) and subsequent approval by the Chief Executive and the NPCSC is required to bring the changes into effect. This would further – in accordance with an earlier NPCSC decision – unlock the possibility of further changes towards universal suffrage for the legislative council in 2020, half of whose current members represent sectoral ‘functional constituencies’, enhancing democratic accountability of the legislature. The 31 August 2014 NPCSC decision says that ‘After the election of the Chief Executive by universal suffrage, the election of all the members of the Legislative Council…may be implemented by the method of universal suffrage’.
24. Legislative approval will be challenging, as most of the 27 ‘pan-democrat’ lawmakers have said they will vote down any proposal in line with the NPCSC framework. The ‘Occupy’ protests have probably made it more difficult to reach consensus (see Section VI). If the bill is not approved, the 2017 selection will revert to a vote by the 1,200-strong Election Committee, as in 2012. A universal vote, however, could change the nature of politics in Hong Kong, in perhaps unexpected ways.[6]
25. Some have suggested that the NPCSC decision is inconsistent with the Joint Declaration. This is clearly not the case. All the Joint Declaration says, in Article 3(4), is that the Chief Executive will be ‘appointed by the central people’s government on the basis of the results of elections or consultations to be held locally [in Hong Kong]’.
26. There is complex background to these processes. In 2004, the NPCSC issued an interpretation of provisions of Annexes I and II of the Basic Law on the mechanisms for amending the processes for selection of the Chief Executive and formation of LegCo. The Basic Law provisions begin with ‘if there is a need to amend…’ without stating how it would be decided whether there was a need to amend; the 2004 interpretation stated that it would be the NPCSC which opined on the need for an amendment on receipt of a report from the Chief Executive setting out views on the issues and proposing an amendment.
27. In the case of LegCo, there had not previously been an explicit role for the NPCSC in amending the method for formation of LegCo, which had been understood to lie within Hong Kong’s autonomy. In the case of the selection of the Chief Executive, any changes had all along required approval by the NPCSC under the Basic Law. As part of the ongoing 2014 process, the NPCSC used the post-2004 requirement to set out a framework for changes: some have interpreted this as giving the centre a greater say than was originally intended in the Basic Law, while others have seen it as helpful in ensuring that changes discussed in Hong Kong would be able to obtain NPCSC approval, required by the Basic Law as the last step.

VI. Hong Kong politics and the impact of the ‘Occupy Central’ protests

28. As noted above, the broad reaction to the White Paper in Hong Kong was negative. It heightened long-standing fears among many that Beijing would seek to increase its influence over Hong Kong in the post-handover period. This reflects a widespread lack of trust in the central authorities.
29. Critics of the NPCSC decision responded in even stronger terms, and the decision became the catalyst for major protests from late September, driven primarily by student groups, joined by the ‘Occupy Central’ movement. These reactions have been exacerbated by the unpopularity of the Hong Kong government and Chief Executive C.Y.Leung. Many Hong Kongers are also frustrated by the impact of the growing numbers of migrants and visitors from mainland China, pushing up property prices and shop rents, during a decade when local wealth gaps have grown. Some are concerned that Hong Kong’s growing economic dependence on the rest of China presages a weakening of its separate system, though the separate system remains key to Hong Kong’s commercial attractiveness, including for mainland Chinese companies.
30. These developments need more in-depth analysis than is possible here, and it is too early to judge the political consequences of the recent protests. In brief, when taken with the debate over constitutional development, they both contribute to and reflect the rise of several phenomena in Hong Kong politics over recent years, including a growing polarization of views and increasingly confrontational behaviour from those opposed to the government. Broader governance challenges have intensified, including a relationship between the executive and legislature verging on the dysfunctional. There are few in Hong Kong who want the constitutional status quo to continue, though it is also unclear whether universal suffrage for the Chief Executive on its own will resolve all these governance challenges.
31. The impact on the approach taken by the central authorities remains to be seen, though it is unlikely to lead to a more flexible approach from Beijing.
32. When it comes to the OCTS framework, it should be noted that the student / ‘Occupy’ protests have been handled by the Hong Kong government, consistent with the provisions of Joint Declaration Article 3(11).

VII. Implications for HMG’s policy towards Hong Kong

33. Finally, this evidence deals with two interlinked questions which relate to the terms of reference of this inquiry: whether HMG has the right structures or processes in place to monitor implementation of the Joint Declaration, and whether HMG comments are a good reflection of the implementation of the Joint Declaration, including on constitutional development (specifically highlighted in the terms of reference for this enquiry).
34. On 1 July 1997, the UK formally established a Consulate-General in Hong Kong, whose remit included analyzing political developments in Hong Kong. Following the handover, the Sino-British Joint Liaison Group continued to meet three times a year until the end of 1999, providing a forum for discussion between the two governments of implementation of the Joint Declaration. As noted above, the FCO continues to submit Six-Monthly Reports to Parliament.
35. These structures should be sufficient to enable HMG to continue to monitor developments related to the implementation of the Joint Declaration, and to make public comment when necessary. This assumes that the FCO and Consulate-General maintain expertise on Hong Kong issues, including the often complex history (Hong Kong political and constitutional issues do not lend themselves to being picked up quickly).
36. Before and after 1997, Hong Kong people themselves have clearly been carefully monitoring the implementation of the promises made in the Joint Declaration and Basic Law. Views are vocal and often differ, as they should in a vibrant and free society. The view of this author, therefore, is that HMG should not be a regular participant in local debates, which would not be appropriate for a foreign government.
37. However, it will on occasion be appropriate to comment publicly on issues of concern, especially when related to the implementation of the Joint Declaration. If so, HMG should be prepared to take timely and firm positions, not simply note local concerns in a neutral fashion, or postpone comment until the next Six-Monthly Report. This will enhance the credibility of HMG’s attention to the Joint Declaration’s implementation.
38. Further, HMG should draw clearer distinctions than currently on offer in the Six-Monthly Reports between issues which relate to the implementation of the Joint Declaration by the central government, where the UK has a locus to comment as a signatory, and issues which relate to the implementation of the Basic Law, or simply to events in Hong Kong which might have implications for the broader UK interests or values, where any comment might still be justified, but would not necessarily be based not on the Joint Declaration. This distinction should be reflected by the Six-Monthly Reports referring more frequently to Joint Declaration commitments (as noted in para 2 the status and terms of the Joint Declaration and Basic Law are not the same). Given the Joint Declaration is an international treaty, consideration should be given to publishing the views of FCO legal advisers on contentious points concerning its implementation, as part of the Six-Monthly Reports.
39. At the same time, the scope of the Six-Monthly Reports should continue to be wider than the implementation of the Joint Declaration. Their existing coverage of political, economic and social developments within Hong Kong, and developments in the bilateral relationship between the UK and Hong Kong provides useful context for tracking implementation of the Joint Declaration.
40. HMG’s public position on constitutional development should start by stating whether the relevant provisions of the Joint Declaration have been implemented (with the honest admission of limitations of these provisions on post-1997 constitutional development). Further comment should be consistent with the principles of OCTS as set out in the Joint Declaration and the Basic Law.
41. OCTS has always required careful balance and compromises. It remains the only realistic way of ensuring Hong Kong’s stability and prosperity, taking account of both Chinese sovereignty and strong desires to maintain Hong Kong’s high degree of autonomy and separate system. HMG should continue to support its implementation in Hong Kong.

October 2014