A pro-democracy protester shields his face from police tear gas during the demonstrations of 2014Flickr.com/Studio Incendo, Creative Commons License
Since the handover of Hong Kong from British to Chinese sovereignty in 1997, the city has been imbued with a sense of exceptionalism and optimism; many citizens consider themselves ‘Hong Kongers’ first, Chinese second. Principles laid out in the Sino-British Joint Declaration provided for an autonomous Hong Kong. The new Basic Law (akin to a mini-constitution of Hong Kong) integrated these principles: stipulating a “high degree of autonomy” in the common law-based judiciary (Article 2), preservation of a capitalist system for fifty years (Article 5), and a commitment to ultimately implementing universal suffrage (Article 45).
Capitalizing upon Article 45, civil society in the former colony has actively pushed for democracy. The outlook was bright when the Chinese government announced in 2007 that from 2017 on, universal suffrage would be used to elect the city’s Chief Executive (akin to the American President) and legislature. Tensions came to a head in 2014, however, when the Chinese government announced it would screen nominees for the Chief Executive, in order to ensure that only two or three patriotic candidates would appear on the ballot. This sparked the Umbrella Revolution, beginning with a three-month saga of massive protests that brought the key global financial center to a standstill. The civil conflict continues to this day, and only recently has the Chinese government intervened to block the appointment of two pro-democracy youths to the city’s legislature on grounds that they had not fulfilled their oath requirements.
Most observers are quick to condemn the Chinese government; proponents of the twenty-first century liberal zeitgeist demand self-determination for this unique city. American readers may draw parallels between Hong Kong’s “One Country, Two Systems” model and America’s constitutional federalism, taking issue with China’s violation of Hong Kong’s “traditional state rights.” However, there are reasons why both lines of thought are inapposite to the Hong Kong model. The liberal argument is difficult to uphold because Hong Kong is not in itself a sovereign state, nation or distinct ethnic region. This is not disputed and international relations scholars have largely stayed away from the Hong Kong issue. The federalist argument is much more interesting however, because it calls for a genuine inquiry into the legal basis of Hong Kong’s push for autonomy and independence from the Chinese core. The following comparative analysis will explain why American federalism does not lend support to Hong Kong’s claim.
The Hong Kong-China Vertical Separation of Powers Flows in Reverse to that of American Federalism
Though American conservatives bemoan the erosion of states’ rights by the federal government, they always have the opportunity to claim in court that the federal government has abused the authority granted to it by the states. The reverse is true in Hong Kong; all the autonomy the city enjoys was granted to it by the central government. Unlike California, Hong Kong enjoys zero sovereignty at a baseline level and therefore has no original claim to self-governance. Whereas the American states have decided to surrender some of their autonomy to a central government in the interest of efficiency and common principles, the Chinese government decided to grant limited autonomy to Hong Kong as part of an economic and political calculation. Is Chin therefore mischaracterized as invading Hong Kong’s rights when the city has no sovereign claim to independence?
The Guarantees of Autonomy Enshrined in the Hong Kong Basic Law are Illusory
Pro-democracy proponents may answer “no,” by pointing to the aforementioned provisions of the Basic Law that would seem to guarantee certain rights: (1) a “highly autonomous judiciary” free to adjudicate its own cases, (2) a fifty-year “capitalism guarantee,” and (3) enunciation of universal suffrage as an ultimate goal. The first right eclipses all others in significance, as a highly autonomous judiciary could have final adjudicative power on matters of Hong Kong governance.
However, “high autonomy” certainly does not constitute absolute autonomy, and Article 158 of the Basic Law expressly stipulates that Hong Kong courts “shall, before making their final judgments which are not appealable, seek an interpretation [on the Basic Law, from the central government, in cases that concern central government interests, i.e. the relationship between Hong Kong and China.]” Interpretations by the central government bind Hong Kong courts, effectively giving China the final say on matters that would alter the balance of power between the core and Hong Kong. This gives the central government the potential power to interpret the other guarantees of capitalism and universal suffrage into nullity.
Pro-democracy activists can claim that this provision should be interpreted to mean that Chinese interpretations should only be issued at the invitation of the Hong Kong Court of Final Appeals; as a textual matter it makes no provision for unilateral Chinese intervention. On the other hand, Hong Kong courts clearly have a legal obligation to seek such interpretations in relevant cases. The question then becomes who has the power to decide when a case is relevant and requires Chinese interpretation: the central government or the city? This is not answered by the statutory text, but given the preceding analysis, the Chinese government is probably the winner. Whereas the Ninth Amendment of the American Constitution clearly limits the authority of the federal government to those specifically addressed in the Constitution, the Chinese government is not limited by such negative grants of authority; it is the supreme sovereign that has chosen to empower Hong Kong with limited autonomy and it cannot be presumed to have delegated any more power than expressly declared.
It may very well be that by unilaterally issuing interpretations that bound Hong Kong courts to block the appointment of the two pro-democracy legislators, China abused that discretion in deciding whether Hong Kong was obligated to seek the interpretation. However as a purely legal matter, Hong Kong cannot claim an absolute right to contradict the will of the Chinese government because it possesses no independent sovereignty, and any guarantees of autonomy are subject to final interpretation by the Chinese government.