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ARTICLE 19 and The Hong Kong Journalists Association
CONSTITUTIONAL TRANSITION: THE RISKS FOR FREEDOM OF EXPRESSION
On Hong Kong's return to China on 1 July 1997, a new constitution, the Basic Law of the Hong Kong Special Administrative Region (SAR) of the People's Republic of China, will come into effect. It will supersede the British Letters Patent and Royal Instructions that make up the present constitution of the territory. The Basic Law was enacted and promulgated by China's National People's Congress (NPC) in April 1990 after five years of drafting and "consultation", the last year of which was conducted in the aggravated aftermath of the massacre in Beijing in June 1989.
Although it has not yet come into force, the Basic Law has had a considerable impact on the process of constitutional transition. As the territory awaits the arrival of the Basic Law's arrangements for the SAR, and the eclipse of the old, it is an especially ambiguous and complex period for the evolution of legislation and administrative reforms, since any such developments, in China's view, must be consistent with the future constitution. The British, for their part, had accepted this requirement for "convergence" well before the Basic Law had reached even a draft form, and it has broadly been the basis of British policy since.
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BACKGROUND
The intention of creating a new constitution is to give effect in law to China's scheme of "one country, two systems" which the 1984 Sino-British Joint Declaration had agreed to be the basis of the transfer of sovereignty over Hong Kong. The Joint Declaration sets out the guiding constitutional principles which the Basic Law is to adopt for the SAR, as well as the relationship between the SAR and its sovereign power, China.' It provides that China's socialism shall not be practised in the SAR, and that Hong Kong's "capitalist system and way of life shall remain unchanged for 50 years". It provides also that the Hong Kong SAR will enjoy a "high degree of autonomy", except in foreign and defence affairs, that it be vested with "executive, legislative and independent judicial power, including that of final adjudication", that the present laws (unless inconsistent with the Basic Law) and judicial system will remain, and that rights and freedoms will be safeguarded by law.
It would not take long before it became clear that the Joint Declaration was viewed by Beijing not as a concrete set of principles and ground rules, but as a starting point from which to wring concessions. During the secretive diplomatic negotiations on the implementation of the agreement, and during China's parallel drafting of the Basic Law, Beijing was to push and barge its agenda for the handover, extracting concessions from a Britain eager to ensure a "smooth transition" at all costs.
1 Joint Declaration of the Government of the United Kingdom and the Government of the People's Republic of China on the Question of Hong Kong (Para. 3 and Annex I).
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