On April 4, it will be 35 years since the National People’s Congress adopted the Basic Law (BL) of the Hong Kong Special Administrative Region. Once it was enacted in 1990, it showed Hong Kong people the shape of things to come, and gave everybody ample time to acclimatize themselves to the governance envisaged after it became operational on July 1, 1997.
Although, in the dying days of British rule, the last governor, Chris Patten, sought to upset the applecart with some half-baked electoral reforms he did not clear with Beijing, the situation resolved itself once he departed and the BL came into its own. Since then, the BL has guided Hong Kong’s fortunes in good times and bad, and its impact has been profound.
The BL provides for Hong Kong’s previous capitalist system and way of life to remain unchanged (Art.5), and the Chinese leaders have confirmed they will continue this after 2047. This would not have happened if they thought the BL was no longer fit for purpose, but it has more than proved its worth. The BL has entrenched the “one country, two systems” governing policy, which has benefited the entire country. This was undoubtedly one of the reasons the NPC in 2021 highlighted Hong Kong’s role in national development in the 14th Five-Year Plan (2021-25).
The “one country, two systems” policy was the brainchild of the late paramount leader Deng Xiaoping. He saw it as a means of peacefully resolving historical questions and achieving the complete reunification of China. With this in mind, he approached the negotiations with the United Kingdom over the future of Hong Kong in the early 1980s.
The Sino-British Joint Declaration (JD) of 1984, which Deng negotiated with then-British prime minister Margaret Thatcher, reflected his belief that if Hong Kong’s fundamentals were not only preserved but also enhanced, it would be able to contribute even more after 1997 than it did before, and be a model for others to follow. Six years later, the JD was absorbed into the BL, whose formulation Deng also oversaw.
Deng fully understood the twists and turns of Hong Kong’s history and recognized its importance as a global city. He hoped that everybody, including people with different opinions and foreigners who took the city as home, would remain and continue making their own distinctive contributions in the new era. In the 1980s, when there was talk of people leaving Hong Kong because they feared they might not fit in politically after 1997, he sought to allay their concerns.
Deng explained that a patriot was simply someone “who respects the Chinese nation”, adding, “We don’t demand that they be in favor of China’s socialist system.” In other words, there was no need for people with divergent opinions to pack their bags, and everybody who valued China and wanted Hong Kong to prosper was welcome in the future special administrative region. His message hit home, and, for example, expatriates now reportedly account for approximately 10 percent of the Hong Kong population, many involved in financial services, global trade, and business enterprises.
In 2024, on the 120th anniversary of Deng’s birth, President Xi Jinping praised his “one country, two systems” policy, saying it had “opened a new path”. He also applauded Deng’s broader achievements, describing him as “a great internationalist who made significant contributions to world peace and development”. It was apparent that Xi envisaged Deng’s policies continuing, which was reassuring for Hong Kong.
When the BL was drafted, it reflected not only Deng’s broad-mindedness, but also his appreciation of what made Hong Kong tick. Although it stipulates at the outset that Hong Kong is an inalienable part of China (Art.1), it also provides that the socialist system and policies “shall not be practiced in the special administrative region” (Art.5), meaning business as usual.
Although the SAR comes directly under the Central People’s Government, it nonetheless enjoys “a high degree of autonomy” (Art.12). It has its own distinct legal and political systems, and its judicial power includes the power of final adjudication.
Although the BL (Art.158) entitles the NPC’s Standing Committee (NPCSC) to interpret the BL when issues arise that are outside the SAR’s high degree of autonomy, the power of interpretation has been very sparingly used. In almost 28 years, the NPCSC has issued only five interpretations, one of which, involving State immunity, was at the behest of the Hong Kong Court of Final Appeal (HKCFA). This shows the NPCSC has bent over backward to respect the SAR’s high degree of autonomy, and only becomes involved when absolutely necessary.
The HKCFA, which replaced the Judicial Committee of the Privy Council in London as Hong Kong’s top court in 1997, is composed of local and overseas judges. The overseas judges sit as required, and they can come from any common law jurisdiction (there are currently six overseas nonpermanent judges, four from Australia and two from the UK, and more will hopefully be appointed soon).
In a remarkable concession, the BL provides that judges at all levels can be recruited from elsewhere, with no nationality requirement (Art.92). Like the legal profession, the judiciary undoubtedly benefits from having an international flavor.
Under the BL, the only two judges required to be Chinese nationals — who are permanent residents of the SAR with no right of abode in a foreign country — are the chief justice of the HKCFA and the chief judge of the High Court (Art.90). This situation is hard to imagine in other common law jurisdictions, where most, if not all, judicial officers are nationals of the particular country.
Moreover, Deng’s “one country, two systems” policy has enabled Hong Kong to retain its common law system, which has been fundamental to its success (Art.8). It is not practiced elsewhere in China and its continuation was prescient. Its benefits have been manifold, and, for example, it has ensured that Hong Kong has remained a part of the wider common law family, its future lawyers can study law abroad without being disadvantaged upon return, and overseas judges and lawyers can pursue their careers in Hong Kong.
To help it operate the legal system more effectively, the BL entitles the SAR to make provision for “lawyers from outside Hong Kong to work and practise in the Region” (Art.94), which befits a world city.
The common law’s retention has also maintained Hong Kong’s status as an international financial hub, and enhanced its credentials as a burgeoning center for international arbitration.
Given his hopes for Hong Kong, Deng would have been delighted by its contribution to national goals and its integration into the Guangdong-Hong Kong-Macao Greater Bay Area without compromising its unique characteristics.
He would also have welcomed the extent to which the vibrancy of the “one country, two systems” policy is being internationally recognized.
On Oct 16, 2024, for example, the Fraser Institute ranked Hong Kong as the world’s freest economy.
Shortly thereafter, on Oct 23, the World Justice Project Rule of Law Index rated Hong Kong 23rd out of 142 jurisdictions surveyed for their rule of law credentials, a powerful tribute to the efficacy of its legal system.
On March 19, moreover, Hong Kong was the resounding winner in the Times Higher Education international ranking, with its universities taking the top four slots (another one came 11th).
The next day, March 20, the Global Financial Services Index announced that it had rated Hong Kong as Asia’s leading financial center and as third globally.
These and other achievements would not have been possible without the BL, which has sustained Hong Kong’s progress in all key areas.
Although there have been highs and lows since 1997, the BL has enabled Hong Kong to meet the challenges it faced, including the attempts to wreck Deng’s “one country, two systems” policy in 2019-20. As the BL envisaged (Art.23), the SAR was finally able to discharge its national security obligations in 2024, and its future is now assured, as is generally acknowledged.
When, for example, the chairman of the European Chamber of Commerce in Hong Kong, Inaki Amate, was asked in 2024 about the effect of the national security legislation, he told Cable News that European businesses did not think it would affect their business. He then added, “In fact, we are very happy to have reached a point where we have turned the page and focused on and returned to doing business” (Oct 14).
On the BL’s 35th anniversary, everybody who loves Hong Kong should reflect on their good fortune. If people of goodwill had not persevered, things could have turned out very differently. A debt of gratitude is owed to Deng, to the BL’s architects, and to the patriots who ensured the successful implementation of the “one country, two systems” policy.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
