2047 Burden

The best thing the Central People’s Government in Beijing could do now for Hong Kong’s young people is to relieve them of the burden of thinking about 2047.

For those of us in the community aged 60 or more this date is of little or no concern: let’s face it, we probably won’t be around. Even if we are, we will likely be thinking more about our health and the prospect of passage into the next life rather than political issues in this one. Those in their 40s and 50s have mostly by now become used to life’s compromises. They have learned to roll with the punches and make the best of whatever turns up, realising it is largely out of the individual’s control.

But for those in their 30s or younger, the year 2047 already looms large. They will still be around and in the prime of life when the promise of Article 5 of the Basic Law –that Hong Kong’s capitalist system and way of life will remain unchanged for 50 years – expires. The uncertainty about what happens next is preying on their minds. They see themselves as being in a classic existentialist situation where like all creatures who detect danger they must choose between “fight or flight”. And they are still young enough to do either or both.

I believe they are wrong in their analysis, and will explain why in a moment, but it is hard to blame them. Many people in Hong Kong – including politicians, journalists, political commentators, legal scholars -- have formed the conclusion that the whole of the Basic Law expires in 2047. It follows, at least in their line of thinking, that thereafter the mainland’s socialist economic system and all mainland laws will take over from the common law system. All of the freedoms we currently enjoy will be swept away.

Prominent in what I call the “Armageddon scenario” camp is no less an authority than retired Supreme Court judge Henry Litton. In his book published earlier this year “Is the Hong Kong judiciary sleepwalking to 2047” Litton berates Hong Kong society in general and his fellow judges in particular for failing to prepare for the day when the One Country, Two Systems formula prescribed in the Basic Law ceases to apply. He had previously expounded his views in a widely publicised speech at the Foreign Correspondents Club in 2015 and followed up with a repeat performance after publication of the book.

I have argued before in these columns that this conclusion is false. What we in Hong Kong call the Basic Law, and treat as if it were a de facto mini constitution, is no more or less than a piece of legislation enacted by the National People’s Congress pursuant to Article 31 of the national constitution. Like all laws passed by legislatures everywhere it remains in force until repealed or amended by the body that made it, unless there is a specific and unambiguous sunset clause, namely a fixed date from which the law ceases to apply.

There is no indication in Article 31 or anywhere else in China’s constitution that laws made under it have a finite life, nor do any of the other Articles of the Basic Law itself carry even an implied lifespan limit. Article 1, for example, states that the Hong Kong Administrative Region is an inalienable part of the People’s Republic of China. Is anyone seriously suggesting that this provision also expires in 2047? Apart from a small lunatic fringe, clearly not.

It is not easy for a columnist whose expertise is in economics rather than the law to go toe to toe with a Supreme Court judge on a difference of legal interpretation. Fortunately a former law draftsman, John Wilson, recently rode to my rescue. In an opinion column in this newspaper a few weeks ago he made two key points: The Basic Law is not due to expire so a conversation is overdue on how Beijing contemplates Hong Kong’s legal and administrative systems after 2047; and Nothing in the Basic Law says communism will apply after 50 years or that existing rights and freedoms will be cancelled.

Unfortunately, a lot of our young people have not fully grasped the nuances of the actual legal position. In their minds the introduction of the extradition legislation is simply the latest in a series of moves to prepare the community for life under the mainland’s legal system. Who could forget the 2003 protests over draft national security legislation or those of 2012 over the proposed national education curriculum.

These fears have surely played a major part in creating the emotional response now manifesting itself in the violence on our streets. The so-called “five demands” are not the beginning of a colour revolution or the start of a mainstream independence movement. Rather they are a cry from the heart for clarity over what happens after 2047.

It is not that One Country, Two Systems has failed. Rather it is the fear over what will take its place. What would be wrong with a simple statement from the CPG that the arrangement will continue indefinitely after 2047 until Beijing and the SAR agree otherwise? Such a clarification could also undo much of the damage done to relations between the capital and Taiwan. The main beneficiary of the unrest here has been Tsai Ing Wen and her independence-leaning Democratic People’s Party. Even her opponent in January’s election, Han Kuo Yu of the more Beijing-friendly KMT has felt obliged to distance himself from the One Country, Two Systems formula (“Over my dead body”) because of its perceived failure here. How could he justify to the island’s electorate reunification talks at some point in the future if any deal would only have a finite life? Could the prospects of such talks one day be improved by a bold Beijing move to rescue the Hong Kong situation now?

After all, what is the alternative? Violent repression in Hong Kong now followed by armed invasion of Taiwan later? That really would be Armageddon.