I. People’s Republic of China’s Hong Kong Policies During Early Years

Amid the painful experience of subordination and political turmoil for the first half of the twentieth century, with what it called “glorious revolutionary tradition and relentless struggles,” the Communist Party of China (“CPC”) emerged as a leading opponent to the republic government, which was run by the Chinese Nationalist Party, known as Kuomintang, (“KMT”). China’s War of Liberation was fought between the two adversaries from 1945 to 1949. This is actually the third and last revolutionary civil war between the two major political parties prior to the founding of the PRC. During the civil war, Hong Kong, as a British overseas territory, was outside the ambit of the cannons.

As is familiar to all, the PRC was established in Beijing on October 1, 1949 by Mao Zedong (1893–1976). This historical event was a clear message that the CPC had victory over the civil war. But for the first few months of the PRC, some territories, like Tibet, had not been under firmly effective control until the end of 1951. On October 14, 1949, the city of Guangzhou was set free by the People’s Liberation Army (“PLA”) and the PLA continued to march to the north of the Shenzhen River. Hong Kong was just within a foot of PLA’s Fourth Field Army on October 17, 1949. The increased number of British troops in Hong Kong from roughly 5,000 to about 30,000 suggested a potential international armed conflict. Winston Churchill, consistent with his position in 1945, expressed adamant opposition to the rendition of Hong Kong,Footnote ³⁰ and it seemed that the British government was obviously prepared for any further armed conflicts over the city “under the British flag.”Footnote ³¹ Later, British archives and memoranda show that in 1948 and 1949 the British government at least studied and prepared both long-term and short-term policies for Hong Kong as it kept close eyes on the changing circumstances across the Shenzhen River.Footnote ³²

Despite the fact that there was a concentration of Chinese troops near the Shenzhen River in October 1949, the communist government did not attempt to take over the colony by force.Footnote ³³ Furthermore, from February 1950 on, no formal demand for the return of Hong Kong was made by the PRC until 1982.Footnote ³⁴ There is much confusion on, as well as explanation for, why the Chinese troops did not march across the Shenzhen River in October 1949. Suppose that Hong Kong was to be returned to China. The newly established Chinese government would have several possible options; military force was just the most visible one. The Chinese government could very well have cut off all the water and food supplies upon which Hong Kong had high degrees of dependence. To the surprise of most people, the Chinese army stopped at the border and the newly established Chinese government even guaranteed the water supply to Hong Kong. There are a number of reasons for this and the most important ones should come from the Chinese side.

First, the Hong Kong issue was not initially on the top of the priority list for the CPC. The CPC actually had a grander vision of national unification when it felt great confidence after its victory in the civil war during the second half of the 1940s. According to Mao Zedong’s strategy, the fact that the return of Hong Kong was not raised did not mean Hong Kong would never be returned. In December 1946, Mao said to western reporters, when the Hong Kong question was presented, “China is huge, many places are not well governed, why should we focus on such a small place firstly? It can be solved via negotiations in the future.”Footnote ³⁵ On January 19, 1949, the Instructions of the Chinese Communist Party Central Committee on Foreign Affairs was released. It was a document drafted by Zhou En’lai and revised by Mao Zedong. It reads as follows:

In principle, all the privileges enjoyed by the imperialists in China must be renounced, the Chinese people must achieve full dependence and liberation, this position is firm and unshakable. However, on the measures and steps of how we achieve [those goals], it should be dealt differently in accordance with the nature and circumstances of the issues. Any issues, which are beneficiary for the Chinese people and are possible to solve, must be raised and resolved; some of them which are not possible to solve, shall be postponed to resolve. Any issues which do not have harms or without great harms, even if, they are easy to solve, need not be resolved in a hurry. Any issues, which are not clearly researched or are not ripe to solve, should never to be resolved at once.Footnote ³⁶

From this document, it can be deduced that the issue of Hong Kong belonged in the category of issues which needed not be resolved in a hurry. And this judgment was further supported by later historical facts. In early 1949, when meeting with Soviet Union representative Anastas Ivanovich Mikoyan (1895–1978), Mao said to him:

[U]nder such circumstance [of the civil war], it is of no great meaningfulness to solve the issues of Hong Kong and Macau. To the contrary, I am afraid it is more useful for us to make use of those two places, especially Hong Kong, to develop our international relations and to facilitate import and export trades. All in all, it must be up to the final decision corresponding to the changing circumstances.Footnote ³⁷

Second, there was full consideration for the PRC’s international relations at that time. It was fairly easy to imagine that the communist government would be isolated in the international community once it was declared independent. Hong Kong could serve as a “window” amid the western blockade; not liberating Hong Kong would prevent a British-American fortress against China in the city. After serious and secret communications with the British,Footnote ³⁸ on January 5, 1950, the Clement Attlee government recognized the Communist regime as the de facto government of China, making the UK among the first western powers to afford such recognition to the PRC. This recognition was also reflected in the decision of Civil Air Transport Inc. v. Chennault and Others (1950) by the Supreme Court of Hong Kong, which is not actually the court of last resort under British rule.Footnote ³⁹

Third, there were very pragmatic economic considerations for the PRC to utilize Hong Kong for trade purposes. Mao told to Anastas Ivanovich Mikoyan that maintaining the status quo of Hong Kong could facilitate import and export trades for China. This stance was reinforced when Premier Zhou En’lai was in charge of China’s foreign affairs. Later facts show that Hong Kong remains as China’s only open door to the rest of the world. It helped, if not kept China alive during the severe trade embargoes when the Korean War broke out.Footnote ⁴⁰

In 1956, massive pro-nationalist riots erupted in Hong Kong, causing Governor Alexander Grantham (1899–1978) to introduce an emergency law at the time.Footnote ⁴¹ Chinese premier Zhou En’lai called the colonial government to quell the riots allegedly led by the Chinese Nationalist Party in Taiwan. In the following year, Zhou delivered remarks at the Symposium of the Business People in Shanghai and openly expressed the Central People’s Government’s positions regarding the Hong Kong issue. The core can be summarized by the following points: (1) Hong Kong will one day be reverted to China; (2) Policies on Hong Kong shall be differentiated from that of the mainland, capitalistic systems shall be run under British rule, and socialism does not apply to Hong Kong; (3) Hong Kong should remain a free international port and should be useful and beneficial for the economic development of socialist China; (4) Hong Kong can serve as the base for our foreign economic ties and can be utilized for foreign investment and foreign currency; and (5) We shall cooperate with Hong Kong business people and the future collaboration is promising.Footnote ⁴² Zhou En’lai’s remarks clearly represented Beijing’s Hong Kong policy. The Chinese foreign ministry termed it later as “long-term planning, full utilization.”Footnote ⁴³

In the 1960s, under governor Sir David Trench (1915–1988), anti-colonial leftist riots spread in the summer of 1967, which were widely deemed to be one of the most important historic episodes of the colonial history in Hong Kong’s post-war era.Footnote ⁴⁴ Triggered by an industrial dispute in an artificial flower factory in Kowloon, the 1967 riots posed a grave crisis for the British colonial governance.Footnote ⁴⁵ Many treated the event as the watershed for the post-war colonial rule, stirring up some of the fundamental changes in socioeconomic policies.Footnote ⁴⁶ Given that the nationwide grassroot Chinese Cultural Revolution was climbing to its zenith, the 1967 event is also believed to be a “spillover” of China’s leftist movement.Footnote ⁴⁷ Later released records of the National Archives in London proved that the United Kingdom was quite uncertain over the future political development in China and was confused over the communist leaders’ revolutionary tactics.Footnote ⁴⁸ Though the banners of the Red Guards were held highly and the slogan “We Will Liberate Hong Kong” were screamed loudly, the Chinese military remained calm and constrained; thus, the “long-term planning, full utilization” policy toward Hong Kong sustained and was kept on its way until the end of 1970s.

II. 1984 Sino-British Joint DeclarationFootnote ⁴⁹

As history turned to the 1970s, China’s Hong Kong policy of “long-term planning, full utilization” survived even the catastrophic Cultural Revolution, which brought many uncertainties. In a time when the world was still experiencing the Cold War, geopolitics shifted slowly and unexpectedly. In July 1971, after China had troubles with the Soviet Union, Henry Kissinger paid a secret visit to China, and in the following year, China and the United States signed the Shanghai Communique during Nixon’s China visit.Footnote ⁵⁰ In October 1971, the United Nations General Assembly adopted Resolution 2758, which restored the legitimate seat of the PRC.Footnote ⁵¹ During this vital vote at the UN, the U.K. voted for the resolution, which was of great help to China’s struggles for international recognition. After twenty-two years of diplomatic relations at the chargé d’affaires level between the PRC and the U.K., the two sides exchanged ambassadors on March 13, 1972. As a former British colony, Hong Kong was on the United Nations List of Non-Self-Governing Territories in 1946,Footnote ⁵² but in 1972, China formally requested that the United Nations remove Hong Kong and Macau from that list.Footnote ⁵³ Four years later, Mao Zedong and Zhou En’lai passed away, and the Chinese Cultural Revolution officially ended in October 1976.

Both 1978 and 1979 are significant for contemporary China in terms of their impacts on the future direction of the country. After the Third Plenum of the 11th Central Committee Congress of the Communist Party of China in December 1978, Deng Xiaoping emerged as chief architect of China’s opening-up and reform. On New Year’s Day of 1979, China’s highest legislature, the Standing Committee of National People’s Congress (“NPCSC”) issued a historical document—“Message to Compatriots in Taiwan”—calling for peaceful unification. On the same day, the Chinese government simultaneously ordered the PLA to stop the bombardment of Jinmen (Quemoy) Island on which the war had lasted for twenty-one years. 1979 marked a giant shift of China’s Taiwan policy and laid out a grand outline for one of China’s biggest centenary projects—complete national unification. A synoptic view of the 1979 “Message to Compatriots in Taiwan” shows some of the key points of China’s Taiwan policy: (1) There is only one China in the world; (2) Taiwan shall never get independence; (3) respect the status quo on Taiwan and the opinions of Taiwanese people; (4) end military confrontation across the strait; and (5) realize the three linkages of postal, commercial, and transportation services.Footnote ⁵⁴ On the eve of the Chinese National Day in 1981, the Chairman of the Standing Committee of the National People’s Congress, Mr. Ye Jian Ying, made a statement that “after peaceful reunification, Taiwan may become a special administrative region with a high degree of autonomy which means that the existing social system, economic system and life-style of Taiwan will remain unchanged, and so will Taiwan’s economic and cultural relationship with foreign countries.”Footnote ⁵⁵ Mr. Ye Jian Ying’s statement further clarified the core content of the 1979 “Message to Compatriots in Taiwan,” that is OCTS, a phrase which Deng Xiaoping succinctly summarized several months later. Another thing worthy of mentioning is that the concept of OCTS was actually not attractive to Taiwan.Footnote ⁵⁶ Taiwanese leader Chiang Ching-kuo (1910–1988) later proposed “One China, Better System”Footnote ⁵⁷ as a countermeasure policy against Beijing.

It is fairly clear that OCTS is a unique Chinese invention that aimed to tackle the issue of Taiwan. However, it was first put into real practice to resolve the issue of Hong Kong;Footnote ⁵⁸ what’s more, it must be understood in the broader context of China’s grand project of national unification.Footnote ⁵⁹ As the expiration date of the Second Convention of Peking (1898) was fast approaching, London felt it was both necessary and timely to test the attitudes of Beijing regarding the issue of Hong Kong. Furthermore, the uncertainty of leases by the colony government of the city also provided the impetus for resolving Hong Kong’s future.Footnote ⁶⁰ In September 1982, British Prime Minister Margaret Thatcher paid a state visit to Beijing, and the Chinese leader Deng Xiaoping said that reintegrating Hong Kong into China could be resolved through a policy of OCTS.Footnote ⁶¹

During the 1982 China visit, the Iron Lady Thatcher insisted on the validity of the “three major treaties” involving Hong Kong, which was perhaps a great negotiating strategy. Thatcher first relied upon the long-established treaty law principle pacta sunt servanda, Footnote ⁶² arguing that Britain could only return the New Territory, not including Kowloon Peninsula and Hong Kong Island, to China. Then, she proposed that after the transfer of sovereignty to China, Britain could still exercise a kind of administration for the continued success of the city.Footnote ⁶³ Next, Thatcher raised the military issue, requesting no Chinese garrison in Hong Kong. All those proposals were eventually rejected by the Chinese government based on three counterclaims. First, the “three major treaties” regarding Hong Kong shall be judged as unequal; they are per se null and void.Footnote ⁶⁴ Second, the revert of sovereignty must include China’s governance and administration over the city; “Chinese sovereignty, British administration” is groundless. Third, the military garrison in Hong Kong is part of China’s sovereignty, and it is essential to preserve the security of the city. On September 24, 1982, Deng Xiaoping said to Thatcher that there were three major issues on the table: (1) Sovereignty; (2) how to run Hong Kong after 1997; and (3) how to ensure stability and prosperity before the transfer of sovereignty. As for the first issue, Deng decisively said that sovereignty was not subject to negotiation, and China must get back its sovereignty over all parts of Hong Kong, including New Territory, Kowloon Peninsula, and Hong Kong Island. For the second issue, Deng said in principle that the existing political and economic institutions and Hong Kong’s legal institutions could remain unchanged with some necessary revisions. The capitalistic system would be reserved. For the third issue, Deng’s concern was the fifteen years of transition during which China would prepare the alternative if the worst scenario of insurgency happened.Footnote ⁶⁵

The Sino-British negotiation process can be roughly divided into two phases. The first phase, ranging from September 1982 to June 1983, set the agenda and cleared the relevant procedural issues. The second phase, ranging from July 1983 to September 1984, mainly aimed at the draft of the Joint Declaration.Footnote ⁶⁶ When the Sino-British negotiation was on its way, China also adopted the fourth Constitution in December 1982, Article 31 of which contained a provision that Special Administrative Regions (“SARs”) may be established by the National People’s Congress (“NPC”).Footnote ⁶⁷ This constitutional provision legitimized future SARs and provided the fundamental legal basis for ad hoc constitutional arrangements.Footnote ⁶⁸ After twenty-two rounds of negotiations, the Joint DeclarationFootnote ⁶⁹ was finalized and formally signed on December 19, 1984, during another state visit to Beijing by Thatcher.Footnote ⁷⁰ The 1984 Joint Declaration, consisting of eight paragraphs and three annexes is an international treaty.Footnote ⁷¹ Because it was not a self-executing treaty, China’s NPC ratified it on April 10, 1985,Footnote ⁷² while the U.K. Parliament passed it by adopting the Hong Kong Act of 1985Footnote ⁷³ on April 4, 1985. The Joint Declaration finally came into force on May 27, 1985.

III. The Making of Hong Kong Basic Law

After concluding the Joint Declaration, then came the next big issue for China—the drafting of the Hong Kong Basic Law. The drafting process was a lengthy one that started in 1985 and ended in 1990 by China’s NPC.Footnote ⁷⁴ Senior Chinese scholars categorized the drafting process into four stages: (1) A preparing stage from July 1985 to April 1986; (2) a consulting stage from May 1986 to April 1988; (3) a formulating stage from May 1988 to January 1989; and (4) a ratifying stage from February 1989 to April 1990.Footnote ⁷⁵ The establishment of the Basic Law Drafting Committee (“BLDC”) on April 10, 1985Footnote ⁷⁶ marked a formal inception for the drafting process. Because it was created by a Chinese congressional resolution, commentators thus held that the drafting of the Basic Law was essentially a Chinese domestic affair.Footnote ⁷⁷ The similar process was largely duplicated for Macau.Footnote ⁷⁸ The name list of the members of the BLDC was adopted by a separate resolution on June 18, 1985. There were fifty-nine members in the committee, including twenty-three members from Hong Kong who were prominent businessmen and leading professionals.Footnote ⁷⁹ Moreover, the Basic Law Consultative Committee (“BLCC”) was established under the auspices of the BLDC with 180 members. Unlike the BLDC, those members of the BLCC were all from Hong Kong and were mostly big names.

The BLDC was headed by Mr. Ji Pengfei (1910–2000) who simultaneously served as Director of Hong Kong and Macau Affairs in the State Council of China from 1982 to 1990. When the BLDC was ready to function, Ji Pengfei delivered a speech at the opening ceremony of the first meeting as follows:

In his explanation, Ji Pengfei said that the purpose of the BLDC was to convey to the Standing Committee “fully the opinions of the people from all walks of life in Hong Kong.”Footnote ⁸¹ After kicking off, the following four years of the drafting process proved to be unusual in many respects. There were international concerns about the Basic Law draft. The draft process also underwent historical events such as the end of the Cold War and the June Fourth Incident in 1898. Within the framework of legislative procedure, there were serious divergences of opinions toward the draft. Many of the controversies in the drafting process actually sowed the seeds for future political and legal challenges after 1997.

First, when turning OCTS into law, there were significant conflicts of legal norms between the two systems. Many of the conflicts were direct results of the differences between the Chinese socialist legal tradition and the common law tradition. Above all, those conflicts lead to a fundamental one: To what extent can the Basic Law survive Chinese constitutionality? Due to the promise of keeping capitalist society in Hong Kong, the Basic Law is said to conflict with two of the most important articles of the Chinese Constitution: Article 1 of the 1982 Constitution provided a socialist systemFootnote ⁸² and Article 2 of the 1982 Constitution required uniformity of the Chinese socialist legal system.Footnote ⁸³ Furthermore, Cambridge Professor William Wade added that “in the eyes of an English lawyer, the Chinese constitution and the Basic Law would contradict with each other.”Footnote ⁸⁴

Second, the BLDC had to be confronted with the very conception of basic law as to what sense the term “basic law” is used. Is it the same as the German Basic Law (Grundgetzbuch) or another version of Israel’s Basic Laws by the Knesset? In a legal-norm or system, there are norms that are referred to as “top norms,” “apex norms,” or more often as basic norms (Grundnormen). In Kelsen’s terminology,Footnote ⁸⁵ such basic norms afford validity to the whole system, while in Hart’s terminology,Footnote ⁸⁶ they are “rules of recognition.”Footnote ⁸⁷ The basic norm, according to Kelsen, is a “fiction” in the terminology of Vaihinger’s Philosophiede des als-ob: To ground the validity of the norms forming a positive moral or legal order.Footnote ⁸⁸ In Israel’s formative era, disagreements from top to bottom prevented the adoption of a written constitution.Footnote ⁸⁹ The Basic Laws by Harari Resolution did not mean a constitution, but rather a set of laws that did not differ from other laws.Footnote ⁹⁰ In terms of Article 62(3) of the PRC’s 1982 Constitution, the Chinese distinguish basic laws and non-basic laws and treat civil law and criminal law also as basic law. Later research shows that the Basic Law of Hong Kong is not a law with constitutional value within the hierarchy of sources of the PRC, and no official decision or legislation refers to the “Hong Kong Basic Law” as one of the laws of Article 62(3).Footnote ⁹¹

Third, what is the nature, degree, and guarantee of the “high degree of autonomy”? On April 4, 1990, in debating the draft of the Basic Law, the Hong Kong Legislative Council (“LegCo”) passed a motion proposed by Mr. Martin Lee. It was mentioned that there were three paramount objectives of the Basic Law: (1) the Basic Law must represent the views of and be fully acceptable to the people of Hong Kong; (2) it must accord with the letter and spirit of the Joint Declaration; and (3) it must provide Hong Kong with an effective and workable system of government.Footnote ⁹² However, the draft did not elaborate the specifics of “high degree of autonomy,” and it was not clear, crucially, whether it was to be of the legal or of the political kind.Footnote ⁹³

Fourth, how should the Basic Law be interpreted and to whom is such power vested? This is an issue addressed by Article 169 of the 1988 draft and finally incorporated into Article 158 of the Basic Law.Footnote ⁹⁴ Both the draft and final version of the Basic Law made the NPCSC the ultimate arbiter when interpreting the Basic Law, but it “shall consult” the Basic Law CommitteeFootnote ⁹⁵ “before giving an interpretation.”Footnote ⁹⁶ Why should the Basic Law make NPCSC the supreme “interpreter” on Basic Law? And why should the Court of Final Appeal, as the court of last resort, not have the last word on the interpretation of the Basic Law? China’s constitutional arrangements of SARs, Hong Kong, and Macau and the constitution-making of Hong Kong resulted from very different entities. A court of final appeal was one of the deals made during the Sino-British negotiation, Footnote ⁹⁷ and this can be understood as a Chinese concession.Footnote ⁹⁸ Lacking a tradition of judicial review under the Chinese socialist legal system, perhaps it is more proper to conceive of the notion that the one who made it knows better than others.

In April 1988, the Basic Law draft, containing 170 articles and two annexes, was revealed for solicitation of public opinions.Footnote ⁹⁹ On February 21, 1989, a revised draft, consisting of 159 articles and three annexes, was formally released by the Standing Committee of the NPC.Footnote ¹⁰⁰ On April 4, 1990, the final draft was adopted by the NPC with 160 articles and three annexes.Footnote ¹⁰¹ Later records show that the BLDC and BLCC had intensive conferences, and their dedication to the draft was highly praised by the Chinese officials.

I. The Separation of River Water and Well Water

Roughly from 1997 to 2002, there was a general trend that showed people of Hong Kong largely embraced OCTS. Local residents mostly held positive attitudes towards China’s resumption of sovereignty during the early years; they shared the pride of the Chinese success whenever China won a prize during international competitions, such as the Sydney Olympics. This was a period of Chinese patriotism that trumped parochialism. One may show contrary evidence of the discontinuity of the normal constitutional order, such as the border crisis and enormous conflicts between mainland immigrants and local Hong Kong residents, but the general trend shows that these conflicts have not reached a level of real constitutional divorce of the two systems. Despite some notable controversial cases regarding right of abode, such as the Ng Ka Ling case (1999)Footnote ¹¹⁷and the Chong Fung Yuen case (2001),Footnote ¹¹⁸ the early years in the history of HKSAR are generally regarded as a relatively peaceful and smooth period of establishing post-colonial constitutional order and implementing OCTS. Chinese scholars generally hold the view that the Basic Law implements the OCTS policy and turns the policy from a scientific concept into vivid reality.Footnote ¹¹⁹ Professor Albert H.Y. Chen, a leading Hong Kong constitutional scholar, also pointed out that during these early years, elections of the Chief Executive and the Legislative Council (LegCo) run on their normal tracks in accordance with the law.Footnote ¹²⁰

Unlike the constitutional model of German unification under which the East was absorbed into the West in light of Article 143 of the German Basic Law (Grundgesetz),Footnote ¹²¹ OCTS emerged as a novelty in the context of the larger international community and the Chinese proudly characterize OCTS as an “unprecedented” invention and treat it as a unique contribution to solve historical territorial issues. Because there were no precedents to follow, both mainland China and Hong Kong had to set foot on a new journey. For the early years, the Chinese leader Jiang Zemin adopted a policy of “Separating River Water from Well Water,” under which the “river water” represents Guangdong’s natives and “well water” refers to Hong Kong natives.Footnote ¹²² A further survey on the origin of this analogy shows that it was during the mid-1980s that Chinese leaders asserted, “the well water does not interfere with the river water.”Footnote ¹²³ The purpose of the assertion for the top Chinese leaders was to prevent Hong Kong from being a “base of subversion” towards socialist China.Footnote ¹²⁴ For the early years following the transfer of sovereignty, Chinese leaders generally kept their promise not to interfere with Hong Kong affairs with exceptions for sovereign matters. Research shows that the NPC slated only 1.3 percent of 1,760 laws and regulations in Hong Kong for expiration at midnight of June 30, 1997.Footnote ¹²⁵ Prior common law in Hong Kong that does not contravene the Basic Law continues to operate in the city.

Confronted with the potential and real conflicts of the capitalistic common law legal system in Hong Kong and the socialist civil law system in mainland China, one may well question the policy of “Separating River Water from Well Water” because the two kinds of water will inevitable converge at some point. Hong Kong constitutional scholar Johannes Chan argues that the Basic Law itself provides an interface of the two systems and faithful implementation of the Basic Law would lead to a high degree of autonomy in Hong Kong.Footnote ¹²⁶ In HKSAR v. Ma Wai Kwan David (1997), Hong Kong court was directly confronted with the question of whether offenses under the previous common law of conspiracy to pervert the course of public justice were part of the laws of the newly established HKSAR. The respondents contended that the common law had not survived the change of sovereignty on July 1, 1997, and thus the amended indictment should be quashed.Footnote ¹²⁷ Because the Hong Kong Basic Law did not provide for automatic adoption of the laws previously in force and the legal system in Hong Kong after July 1, 1997,Footnote ¹²⁸ the Government thus relied on the Hong Kong Reunification Ordinance that was passed by the Provisional LegCo (“PLC”) on July 1, 1997.Footnote ¹²⁹ After the failure of the common law argument during the legal battle, the defendants continued to challenge the lawfulness of the PLC based on the fact that the PLC was not itself an elected body as required by Article 68 of the Basic Law, Annex II of the 1984 Joint Declaration, and the April 4, 1990 Decision of the NPC.Footnote ¹³⁰ After referring to legislative history and careful constitutional analysis, the court concluded that the PLC, in accordance with the NPC Decision of April 4, 1990, was part of the arrangements and methods for establishing the first LegCo. In addition, the court held that the legality or validity of laws made by sovereign power—the NPC—was not open to challenge in the Hong Kong courts, but the court did have the jurisdiction to say whether such sovereign acts exist or not.Footnote ¹³¹

HKSAR v. Ma Wai Kwan David (1997) was the first constitutional case for HKSAR that posed serious challenges for the co-existence of the two systems. Nevertheless, the Tung Chee-Hwa administration (1997–2005) was lucky to barely go through those constitutional challenges and the continuity of the legal order after the handover therefore survived for the early years. As Chief Justice Chan of the High Court stated in HKSAR v. Ma Wai Kwan David:

The early years after the handover are remembered as the period of “maximum autonomy” for Hong Kong, largely due to China’s policy of “Separation of River Water and Well Water.” This history might well be described as the honeymoon years between the mainland and Hong Kong.

II. Article 23 Controversy

A major turning point in the post-1997 history of Hong Kong was the Hong Kong government’s attempt to enact a national security law for the purpose of implementing Article 23 of the Basic Law that requires the HKSAR to enact laws on treason, secession, sedition, subversion, and protection of state secrets.Footnote ¹³³ In order to fulfill its constitutional duty, the Tung Chee-Hwa administration published the Consultation Document on Proposals to Implement Article 23 of the Basic Law on September 24, 2002. During the three-month consultation period, Tung Chee-Hwa’s proposal caused much public anxiety. People doubted whether the Hong Kong and Beijing governments had the sinister intention of curtailing human rights in Hong Kong and extending mainland standards regarding matters such as subversion or the theft of state secrets to Hong Kong.Footnote ¹³⁴ In February 2003, the Tung Chee-Hwa administration formally sent the National Security (Legislative Provisions) Bill to the LegCo for debates, which culminated in a massive protest of half a million people on July 1, 2003. Under blistering attacks and enormous pressure, the CE eventually withdrew the bill from the LegCo on September 5, 2003.Footnote ¹³⁵

There are both pros and cons for Article 23 legislation in mainland China and Hong Kong. A fundamental critique of Article 23 was based on Article 3(5) of the 1984 Joint Declaration, which ensures rights and freedoms including, inter alia, those of the person, speech, press, and association.Footnote ¹³⁶ Many Hong Kong academics and lawyers based their critique of Article 23 on the principle of minimum legislation in determining whether the restriction on human rights could be justifiable.Footnote ¹³⁷ Others have criticized the proposed legislative bill from various perspectives, such as criminal law, basic law interpretation, and ICCPR application.Footnote ¹³⁸ Protections for fundamental rights and freedoms are guaranteed under Chapter III of the Basic Law,Footnote ¹³⁹ and Chief Justice Li’s court has been consistently affirming that “freedoms are at the heart of Hong Kong’s system.” Such judicial opinions can be found in HKSAR v. Ng Kung Siu Footnote ¹⁴⁰ and Yeung May Wan v. HKSAR.Footnote ¹⁴¹ However, the Beijing government and the pro-establishment camp in Hong Kong also provided major compelling arguments for the legislative bill. First, Article 23 of the Basic Law clearly mandates the HKSAR government for such a bill, and HKSAR bears an unfulfilled constitutional duty. Second, most jurisdictions around the world have had various even tougher national security laws and Hong Kong is no enclave. Third, it is exactly the legislative intent of Article 23 that Hong Kong should never become a base of subversion against the mainland socialist system. Last, a correct understanding of China’s Hong Kong policy should put one country ahead of the two systems.

A closer look at the travaux préparatoires of the Basic Law suggests that the first draft of Article 23 (previously Article 22)Footnote ¹⁴² had much broader and more ambiguous terms than any of the subsequent drafts, mandating that the HKSAR shall prohibit by law any act designed to undermine national unity or subvert the Central People’s Government. The second draft was amended to say “the HKSAR shall enact laws on its own to prohibit any act of treason, secession, sedition or theft of state secrets.” When the third draft of Article 23 was to be fixed, unprecedented political turmoil in the summer of 1989 broke out and the Tiananmen bloodshed incident was deemed a fundamental change of circumstances, since Beijing clearly sent a message to the BLDC that Hong Kong should not be used as a “subversion base” against the mainland.Footnote ¹⁴³ The final draft of Article 23, published in April 1990, nonetheless stipulates that the HKSAR “enact laws on its own to prohibit any act of treason, secession, sedition, and subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.”Footnote ¹⁴⁴

The Article 23 controversy, as the history shows, marks the real watershed of the constitutional relationship between the mainland and Hong Kong. When the Chinese foreign minister Qian Qichen (1928–2017) expressed his wish for Article 23 legislation in 2002, he would not expect the subsequent reactions of the Hong Kong people. Since the Tung Chee-Hwa administration, there has been no further introduction of Article 23 legislation in Hong Kong until now. It seems to be far from certain that the harmonization of Hong Kong and PRC Law will happen in the near future. As Albert H.Y. Chen argues, the constitutional duty cannot be abdicated indefinitely.Footnote ¹⁴⁵ Article 23 legislation continues to serve as the touchstone on whether “Two Systems” can protect “One Country.Footnote ¹⁴⁶ Constitutional scholars widely held the view that since the watershed protest in 2003, Beijing began moving away from a policy that “gave more weight to the ‘two system’” towards a new one which instead “gives more weight to ‘one country.’”Footnote ¹⁴⁷

III. Occupying Central Movement

Hong Kong, either as a British colony or as a Chinese Special Administrative Region, has been striving to become a true democracy, and the issue concerning how Kong Hong should be governed thus becomes an unfinished democratic project. At the heart of this project lies the universal suffrage of both the CE and the LegCo. Both Articles 45 and 68 of the Basic Law address the selection of those two important institutions via election, and China approached it through pragmatic incremental methods which largely led to a later election crisis. In 2004, confronted with pressing needs for post-2007 elections of the CE and LegCo, the NPC issued a Basic Law interpretation regarding Articles 45, 68, and the two annexes, reaffirming “the principle of gradual and orderly progress.”Footnote ¹⁴⁸ In 2005, due to the resignation of Tung Chee-Hwa, there were great differences of opinion on whether the new CE should serve the remainder of the term of his predecessor. The NPC thus issued another Basic Law interpretations regarding Article 46,Footnote ¹⁴⁹ stating, “in the event that the office of Chief Executive becomes vacant . . . the term of office of the new Chief Executive shall be the remainder of the term of office of the previous Chief Executive.”Footnote ¹⁵⁰ Upon assuming office as Hong Kong’s second CE in 2007, Donald Tsang initiated a public consultation process on elections by releasing the Green Paper on Constitutional Development, which was submitted to the NPCSC at the end of the year.Footnote ¹⁵¹ In response, the NPCSC rendered a decisionFootnote ¹⁵² that stated that, although the 2012 election of the CE and LegCo would not occur under conditions of universal suffrage, minor amendments to the election methodology of the CE could be proposed by the Hong Kong government.Footnote ¹⁵³ Meanwhile, the 2007 Decision vowed that the election of the CE in 2017 may be implemented by the method of universal suffrage, and the election of the LegCo may be implemented in the same way as that of the CE at a later stage.Footnote ¹⁵⁴

Following the victory of Mr. C.Y. Leung as the new CE after winning 689 votes in the 1200-member Election Committee in 2012, Hong Kong’s constitutional development underwent a series of difficulties. Donald Tsang, the former CE and President of the Executive Council (“ExCo”), was charged with one count of bribery and two further counts of misconduct in public office.Footnote ¹⁵⁵ The pro-democracy camp called for Mr. C.Y. Leung’s impeachment based on Article 73(9) of the Basic Law and relevant provisions under the Legislative Council (Powers and Privileges) Ordinance. Though the impeachment turned out to be unsuccessful, it showed the tension between the new LegCo and CE.Footnote ¹⁵⁶ During C.Y. Leung’s term, pro-democracy LegCo members waged numerous attacks against the SAR government and filibustering was frequently weaponized in many later LegCo sessions.

In June 2014, Beijing published the first white paper regarding OCTS,Footnote ¹⁵⁷ stating that under the system of the special administrative region, the central government exercises overall jurisdiction (the original Chinese is “全面管治权” which is transliterated as “Quan Mian Guan Zhi Quan”) in the HKSAR. This includes the powers directly exercised by the central government and the powers delegated to the HKSAR by the central government to enable it to exercise a high degree of autonomy in accordance with the law. Some of the most striking language in the 2014 White Paper is “The Hong Kong People Who Govern Hong Kong Should Above All Be Patriotic.” By saying so, the Central People’s Government has actually set up minimum lines and criteria for Hong Kong’s future political figures, including the members of the three governmental branches: Being patriotic. Following the White Paper, in its Decision of August 31, 2014 concerning the electoral framework for LegCo in 2016 and CE in 2017, the NPCSC held the view that “universal suffrage for the selection of the Chief Executive represents a historic progress in Hong Kong’s democratic development” and further laid out the details regarding the key principles and procedures which can be summarized as follows:Footnote ¹⁵⁸

Due to the strict procedures set out in the 2014 NPCSC Decision for Universal Suffrage, from September 28, 2014 on, the world witnessed the “Umbrella Revolution” unfold. Over 200,000 protestors, composed mostly of students, engaged in acts of civil disobedience and occupied the Central District for seventy-nine days.Footnote ¹⁵⁹ Scholars have widely used the term “Umbrella Movement” to describe the massive protest, but Benny YT Tai, who was the initial designer of the movement, made clear distinctions between the “Umbrella Movement” and the “Occupy Central Movement.” The movement he led shall be the one with “Love and Peace” in the true spirit of civil disobedience, as a later court case confirmed.Footnote ¹⁶⁰ The massive movement developed in a way Benny YT Tai himself could not control; violence burst from time to time and police used pepper spray, tear gas, and batons against protesters amid local and international criticism.Footnote ¹⁶¹ The movement formally ended on December 15, 2014 when the SAR government cleared up the last occupied zones in Causeway Bay and the Legislative Council complex. Hundreds of protesters were arrested under Hong Kong’s Public Order Ordinance and Criminal Procedure Ordinance. Notably, Benny YT Tai and eight other protesters were found guilty of either committing or inciting public nuisance. District Justice Johnny Chan’s opinion in HKSAR v. Tai Yiu Ting and Others stated, “civil disobedience is not a defense to a criminal charge.”Footnote ¹⁶² After the Occupying Central Movement, the constitutional development of Hong Kong went in two directions. On the one hand, localism and pro-independence activism escalated with controversial LegCo Oath-Taking cases;Footnote ¹⁶³ on the other hand, the Central People’s Government introduced the Guangdong-Hong Kong-Macau Greater Bay Area, a national economic project that includes nine mainland cities in the Pearl River Delta and two SARs (Hong Kong and Macau). On July 1, 2017, a framework agreement on the Greater Bay Area project was signed in Hong Kong,Footnote ¹⁶⁴ and Beijing formally published an outline development plan in February 2019.Footnote ¹⁶⁵ Grand construction projects, such as the Guangzhou-Shenzhen-Hong Kong Express Rail Link and Hong Kong-Zhuha-Macau Bridge, are later credited to the initial success of Greater Bay Area.

IV. Extradition Bill Crisis and Hong Kong National Security Law

Twenty years after resumption of sovereignty, mutual trust has not yet been fully established between Hong Kong and the mainland.Footnote ¹⁶⁶ From early 2018, conflict was generated by the Poon Hiu-Wing murder case, in which a Hong Kong resident named Chan Tong-Kai confessed that he killed his pregnant girlfriend Poon Hiu-Wing during their trip in Taipei. The Hong Kong government was unable to charge him for murder, so the government tried to seize the opportunity to formulate a radical shift of extradition regimes by proposing a combined legislative amendment to the two ordinances relating to fugitive offenders and mutual legal assistance. The wider scope of coverage and drastic change of the current extradition system catalyzed the biggest political and constitutional controversy in the history of the SAR. In the eyes of the Hong Kong government, effective cooperation in many areas has developed, but not yet in the realm of mutual legal assistance in criminal matters between Hong Kong and other parts of China.Footnote ¹⁶⁷ Primarily based on a legal loophole argument, Hong Kong’s Security Bureau proposed a bill to amend the Fugitive Offenders Ordinance (“FOO) and the Mutual Legal Assistance in Criminal Matters Ordinance (“MLA”) in February 2019. The proposed amendment will allow the SAR government to extradite fugitive offenders to countries or regions without extradition agreements with Hong Kong, including Taiwan, Macau, and mainland China.

It is obvious that adopting and implementing the FOO and MLA will significantly alter the current extradition regimes. The Hong Kong Bar Association released its position paper and statements on March 4, 2019; April 2, 2019; June 6, 2019; and June 21, 2019, arguing that it would “fundamentally imperil the operation of the rule of law in Hong Kong.”Footnote ¹⁶⁸ Scholars held that the Extradition Bill led to the most serious crisis of governance since the establishment of the SAR.Footnote ¹⁶⁹ From March 2019 on, thousands of protesters marched on the streets opposing the proposed extradition bill. Many of the pro-democracy legislative members, legal sectors, business communities, students, civil societies, and human rights groups participated in a series of massive protests that lasted several months. The massive protests were reported by domestic and international media to have reached their peak in June 2019, but escalation of tensions continued after Carrie Lam suspended and finally withdrew the controversial bill. Peaceful protests finally turned into a series of incidents of violence, protesters masking themselves on the streets, and police officers using pepper spray and rubber bullets to quell demonstrations. To tackle the dire situation, on October 4, 2019, the Chief Executive-in-Council, in the exercise of the power under section 2 of the Emergency Regulations Ordinance (the “ERO”), announced the enactment of the Prohibition on Face Covering Regulation (the “PFCR”).Footnote ¹⁷⁰ The PFCR was a controversial bill that banned people from covering up their faces in public meetings, processions regulated under the Public Order Ordinance, and unlawful and unauthorized assemblies, such as riots.Footnote ¹⁷¹ Twenty-four LegCo members swiftly filed an urgent application for interim relief to prevent the PFCR from taking effect, but that claim was declined by the High Court because it could not step in at this stage by suspending the PFCR in the interim.Footnote ¹⁷² The Court of First Instance, on November 18, 2019, handed down a decision declaring that the ERO was partly incompatible with the Basic Law.Footnote ¹⁷³ After the decision, the government appealed, and, on April 9, 2020, the Court of Appeal upheld the constitutionality of the ERO and ruled that the PFCR was legal.Footnote ¹⁷⁴ Hong Kong gradually became a “city of protest” and the situation in Hong Kong has drawn international attention. The European Parliament passed a resolution on July 18, 2019 regarding the situation in Hong Kong, calling on the HKSAR government to withdraw the bill.Footnote ¹⁷⁵ The United States Congress passed the Hong Kong Human Rights and Democracy Act of 2019 (“HKHRDA”) in late November of 2019 with strong concerns for Hong Kong’s unique status under OCTS.Footnote ¹⁷⁶ Amid the COVID-19 global pandemic, China’s third session of the thirteenth NPC passed the Decision to Establish and Improve a Legal Framework and Enforcement Mechanism for Safeguarding National Security in Hong Kong on May 28, 2020. One month later, the Standing Committee of the NPC passed the Hong Kong National Security Law and listed the legislation in Annex III to the Hong Kong Basic Law. The new law was swiftly gazetted for promulgation in Hong Kong and took effect on June 30, 2020. The enactment of the Hong Kong National Security Law deeply worried the United States, and the Trump administration signed the Hong Kong Autonomy Act into law on July 14, 2020.

There are several political and legal arguments that the Hong Kong government can utilize to prevent the city from becoming a “Safe Harbor for Criminals,” in essence plugging legal loopholes and accelerating the effective handle of surrender requests from other jurisdictions. It is foreseeable, however, that it will bring serious challenges for Hong Kong’s current legal system, and there are widespread concerns for the human rights record of the mainland system. The legal loophole arguments were poorly put forward because the extradition issues were previously discussed when the 1984 Joint Declaration was signed. What’s more, the permissive terms of Article 95Footnote ¹⁷⁷ of the Basic Law plainly do not impose a duty to put in place a scheme for mutual legal assistance in criminal matters between the mainland and other parts of China.Footnote ¹⁷⁸ The unprecedented COVID-2019 pandemic quieted most demonstrations in Hong Kong due to the adoption of various social distancing measures. The Hong Kong National Security Law seemed to have ended the Extradition Bill crisis, as we can see a new legal order that favors mainland China is emerging.Footnote ¹⁷⁹ Under Article 44 of the newly promulgated law, the CE has the power to designate judges to hear cases concerning offenses endangering national security. It is reasonable to predict that national security cases will become highly controversial, thereby creating more constitutional crises in the foreseeable future.

I. “Unchanged for 50 years” as International Promise

The issue of Hong Kong, in many ways, has been described as an enigma.Footnote ¹⁸³ In order to decipher the time-code of the Basic Law, it is of great value for one to bear in mind that the Basic Law adopts many of the same principles contained in the 1984 Joint Declaration.Footnote ¹⁸⁴ Albert Chen considers the identical wordings of the two documents as a “Duplication Phenomenon” and the Joint Declaration is highly relevant to understanding the legislative intent of the Basic Law.Footnote ¹⁸⁵ Furthermore, the international dimension of the Basic Law is recognized in several landmark cases by the Hong Kong judiciary, such as HKSAR v. Ma Wai Kwan David Footnote ¹⁸⁶ and Ng Ka Ling v. Director of Immigration.Footnote ¹⁸⁷ The Basic Law is an entrenched constitutional instrument used to implement the unique principle of OCTS.Footnote ¹⁸⁸ Thus, a careful reading of the Joint Declaration is not only useful but is also necessary for a constitutional survey of the key provisions under the Basic Law. The Joint Declaration, as a bilateral treaty between the UK and China registered at the United Nations on May 27, 1985, consists of a brief preamble, eight paragraphs, and three annexes respectfully dealing with China’s basic policies on Hong Kong, the Joint Liaison Group, and land lease issues. The term “unchanged for 50” appears twice in the treaty, once in Paragraph 3(12) of the main body and another in Section 1 of Annex I. In the main body of the treaty text, Paragraph 3 directly addresses the twelve basic policies of the PRC regarding Hong Kong, ranging from the governance structure of the SAR to the status of a free port and a separate customs territory. Those twelve basic policies are further elaborated in Annex I of the Treaty, with 14 sections that are much more detailed. Paragraph 3(12) of the Joint Declaration reads as the following:

The above-stated basic policies of the People’s Republic of China regarding Hong Kong and the elaboration of them in Annex I to this Joint Declaration will be stipulated, in a Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, by the National People’s Congress of the People’s Republic of China, and they will remain unchanged for 50 years.

Section 1 of Annex I further elaborates the general language used in paragraph 3(12) of the treaty by providing that “after the establishment of the Hong Kong Special Administrative Region the socialist system and socialist policies shall not be practiced in the Hong Kong Special Administrative Region and that Hong Kong’s previous capitalist system and life-style shall remain unchanged for 50 years.”

Both Paragraph 3(12) and Section 1 of Annex I of the Joint Declaration explicitly incorporate “unchanged for 50 years” as the key for maintaining OCTS. Although immediately before Paragraph 3(12) there are eleven sub-paragraphs guaranteeing that the social and economic systems in Hong Kong will remain unchanged, paragraph 3(12) affirms that the above-stated eleven basic policies will remain unchanged for 50 years. It is in this sense that the “unchanged for 50 years” clause can be deemed “the basic policy of all basic policies.” Section 1 of Annex I of the Joint Declaration is of equal importance for a more precise understanding of “unchanged for 50 years” because it furthers Paragraph 3(12) by adding a negative list—the socialist system and socialist policies shall not be practiced in the SAR—and a positive list Hong Kong’s previous capitalist system and lifestyle shall remain. This even reminds careful readers of the first two commandments (mitzvah) on Mount Sinai. Without Section 1 of Annex I, Paragraph 3(12) would be in peril or at least fragile. Besides those two provisions, Sections 2 and 3 of Annex III also explicitly mention June 30, 2047 as a clear date regarding new leases of land by the British Hong Kong government. All those provisions lead us to the question of 2047 and to how to understand “unchanged for 50 years.”

II. “Unchanged for 50 Years” as Political Commitment

HKSAR is established under the auspices of Article 31 of the Constitution of the PRC. The Basic Law is not only a brainchild of an international treaty, but also a national law of the PRC and the constitution of the HKSAR.”Footnote ²¹⁴ Judging the Basic Law as a Chinese national law that binds both Beijing and Hong Kong is in line with its political purposes. Constitutional law is both a mechanism of political commitment and is itself a political commitment.Footnote ²¹⁵ In this sense, the Basic Law can also be judged as a political commitment, and it prevents the two systems in the mainland and in Hong Kong from mixing with each other on some of the fundamental issues. Concerns over “unchanged for 50 years” rest upon the fundamental question of whether the political commitment by China can be sustained or not. Given that the Chinese language is rich with pithy yet evocative sayings,Footnote ²¹⁶ “unchanged for 50 years” is easily remembered but is not crystal clear. In the political process of implementing OCTS, a reasonable observer would naturally ask questions such as: What does “50 years” exactly mean? What is the correct understanding of “unchanged?” Is “50 years” an exact quantity or is it inexact?Footnote ²¹⁷ Shall we simply calculate the dates with the Chinese or Gregorian calendars to fix the meaning of “50 years?” To answer those questions is not an easy task. It is far more complicated than the linguistic ambiguities themselves. When the Joint Declaration was to be signed by the two governments, Margaret Thatcher had conversations with Deng Xiaoping on why it should be “50 years.” The same question was posed by one of Deng’s Japanese friends. Historical diplomatic records provided very vague responses to the question, but it’s useful to look at Deng’s remarks on December 19, 1984:

If Deng were to be understood exactly by what he said in 1984, he would not have been confronted with the same question over “unchanged for 50 years” in 1988. It was four years after the conclusion of the Joint Declaration that Deng repeated his 1984 remarks, adding that “unchanged for 50 years” over Hong Kong was a sacred political promise.Footnote ²¹⁹ On June 3, 1988, Deng clarified this as the following:

Comparing Deng’s remarks in 1984 and 1988, they basically show the consistency of China’s Hong Kong policy, but there are some very subtle nuances. First, the 1988 remarks set out July 1, 1997 as the starting date for implementing the Hong Kong policy. This has cleaned up the doubts surrounding when the “unchanged for 50 years” policy should be implemented Second, China’s centennial strategy of developments is utilized as the justification for maintaining Hong Kong’s polity “unchanged for 50 years.” Third, the question of China’s Hong Kong policy after 50 years is addressed directly in the affirmative. That is to say, OCTS in Hong Kong is designed not only for the period between 1997 and 2047—it goes well beyond 2047.

As Rubenfeld pointed out, “speech speaks in modern political theory.”Footnote ²²¹ Deng’s remarks can be analyzed in the context of modern political theory as a political commitment. Like Ulysses who tied himself to the mast with rope, preparing himself for the irrational passions he expected to encounter in the future,Footnote ²²² for a people to exist and govern themselves freely, they must make durable, generation-spanning commitments.Footnote ²²³ There are several political implications for our contemporary understanding of “unchanged for 50 years:” (1) It is a pre-commitment made by the founders of the Basic Law which has bearings for our generations to be bound by it; (2) it is a political commitment for which only time will test its truth or falsity; (3) the political commitment is constitutionally enforceable by various institutions and mechanisms; (4) it is a political commitment that is a self-conscious effort to make policies or institutional arrangements difficult to change;Footnote ²²⁴ and (5) the political commitment is closely related to the legitimacy of the current constitutional arrangements in Hong Kong, and any radical changes to the political commitment would endanger the legitimacy of the Basic Law. To answer the question of what will happen after 2047 in Hong Kong, one has to understand the whole context of the political commitment. Deng, as well as many other later Chinese political leaders, is aware of this—it takes time for China’s development strategy to be realized. As long as China’s centennial blueprint has not come into fruition, China and the CCP are bound by their political commitments. Doubts concerning the regime’s willingness to abide by those political commitments are, to a large extent, skepticism toward CCP’s commitments to the rule of law and democratic governance. I would argue that those political commitments bind the CCP and the Chinese government based on both idealist and pragmatist approaches.

III. “Unchanged for 50 Years” as Constitutional Obligation

Constitutions set out the mechanisms by which laws become binding, and they further entail more general political obligations.Footnote ²⁵⁵ The hallmark of modern constitutional theories is to design a democratic constitutional framework under which arbitrary political power is subject to the rule of law. Before July 1, 1997, exiguous as they are, the Letters Patent provided Hong Kong the source of constitution under which the colonial governor derived his power as a servant of the Crown.Footnote ²⁵⁶ Since the establishment of the SAR, many Hong Kong constitutional theorists depict the Basic Law like the two-faced Roman god Janus. The Basic Law has a duality in that it is law both in the jurisdiction that establishes it (China) and in the jurisdiction it establishes (Hong Kong).Footnote ²⁵⁷ The duality of the Basic Law makes it sui generis,Footnote ²⁵⁸ calling for principles of interpretation of its own.Footnote ²⁵⁹

“Unchanged for 50 years” is a clause provided in Chapter I of the Basic Law, which contains eleven articles that state general constitutional principles. Footnote ²⁶⁰ Article 1 provides that the HKSAR is an inalienable part of the PRC. Article 2 authorizes the HKSAR to exercise a high degree of autonomy and enjoy executive, legislative, and independent judicial power, including that of final adjudication, in accordance with the provisions of the Basic Law. Article 5 provides that “socialist system and policies” shall not be practiced in the region, and that the previous capitalist system and way of life shall remain unchanged for 50 years. Footnote ²⁶¹ Besides the general provisions, it is equally important to keep in mind that the preamble of the Basic Law mentions the principle of OCTS without any explicit time limit. Chinese scholars generally consider this provision of “great importance,” that China must adhere to.Footnote ²⁶² How should we interpret the phrase “unchanged for 50 years” in Article 5 of the Basic Law? What exactly does the reference to “50 years” mean? Should it be construed as an explicit time limit or should we interpret it as the continuation of OCTS without an explicit time limit? And why would the authors of the Basic Law create such a phrase in Article 5—a phrase that is unfamiliar to the preamble of the Basic Law ?The answers to these questions not only help us understand the nature of the Basic Law, but also provide us with insight into the constitutional future of Hong Kong after 2047.

Although much of the common law inheritance from the constitution, in all its mazy nature,Footnote ²⁶³ remained unchanged in Hong Kong after the handover, the Basic Law was not drafted by common law lawyers. It was drafted in the Chinese language with an official English version, but the Chinese version takes precedence in case of discrepancies.Footnote ²⁶⁴ HKSAR v. Ma Wai Kwan David was the first case in which the High Court recognized the three dimensions of the Basic Law: International, domestic, and constitutional.Footnote ²⁶⁵ It was in Ng Ka Ling v. Director of Immigration that questions involving the proper interpretation of the Basic Law were addressed for the first time by the highest judiciary in Hong Kong, the CFA.Footnote ²⁶⁶ Hong Kong’s first post-1997 Chief Justice, Andrew Li, made it fairly clear: “These are questions of momentous importance for both the future of the people involved as well as the development of constitutional jurisprudence in the new order.”Footnote ²⁶⁷

Generated by the 2014 Occupy Central Movement and the 2019 Extradition Bill Crisis, questions regarding the momentary nature and temporality of OCTS have been increasingly raised. Strong sentiments of pessimism were felt in the general public, not only among the younger generations of Hongkongers but also for many liberals in the mainland. Moreover, concern for Hong Kong’s future spread in the international media. Former Chief Justice Andrew Li suggested that the question of 2047 “will have to be discussed and settled within one country” around the year 2030.Footnote ²⁶⁸ I hereby argue that understanding “unchanged for 50 years” as a constitutional obligation requires courageous and bold intellectual efforts to patrol the borders of modern Chinese constitutional jurisprudence. Originalism and living constitutionalism are among the most commonly used approaches for the interpretation of the Basic Law.