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Columbia Law School
Volume 02, Number 1, Fall 1988
THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION: ECONOMICS AND NORMS OF CREDIBILITY
Denis Chang

Central to the achievement of the Sino-British Joint Declaration on the Question of Hong Kong (Joint Declaration) was the economic rationale of maintaining the "prosperity and stability" (fanrong anding) of the territory. This declared common objective, while not exclusively confined to the economic sphere, reinforced earlier assurances that investors could set their hearts at ease; it also proved to be the primary catalyst in the successful completion of the Sino-British accord. Not only does the term "prosperity and stability" appear in the Joint Declaration, but the Basic Law Drafting Committee (Drafting Committee) for the Hong Kong Special Administrative Region (Hong Kong SAR) has since dignified the phrase by enshrining it in the Preamble of the Collection of Draft Provisions of the Basic Law (Collection) and placing it alongside the statement of the national goal of reunification.

Maintenance of Hong Kong's "prosperity and stability" has thus become a basic objective of the political agenda, a jiben fangzhen zhengce (fundamental policy direction). It is unnecessary here to go into the supposed dialectical function of a fangzhen (also called a "duality norm"). A caveat, nevertheless, should be sounded at the outset: within the economic and political realities of the contemporary world of the Joint Declaration lies a largely unnoticed reservoir of ideology which could burst abruptly upon the landscape to change our perception of things. For example, the meaning of such key words and concepts used in the Joint Declaration as "autonomy," "upholding national unity," "sovereignty," "freedom according to law," "accountability," "election" and so forth might be subject to ideological reinterpretation. To varying degrees, these terms have been the subject of controversy or the focus of concern in Hong Kong.

The wording of the Preamble to the Collection illustrates this ideological sub-context; immediately after inclusion of the term "prosperity and stability" follows a pregnant reference to "the history of Hong Kong and its realities," thereby signifying that the necessary "specific conditions" are present to justify the establishment of the Hong Kong SAR under article 31 of the Constitution of the People's Republic of China (PRC) as an instance of the application of the Chinese Communist ideological line of "seeking truth from facts" (shishi qiushi). In the Marxist world view this principle appears in economic garb, proclaiming that truth is to be sought primarily from economic facts. One such fact is Hong Kong's continuing role as an economic dynamo of the PRC's Four Modernizations.

It is outside the scope of this short commentary to explore the whole range of inter-relationships between politics and economics which will form the political economy of the Hong Kong SAR. Yet the economic profile of the Hong Kong SAR, which will take shape from within the crucible of "one country, two systems" (yiguo liangzhi), cannot be viewed in isolation from this new hybrid political structure. The economics of the Basic Law is bound to be shaped by its politics, although Lu Ping, Secretary General of the Hong Kong and Macao Affairs Office of the State Council of the PRC, has put the matter another way: "The economy," he said, "is the base, politics is the superstructure." Be that as it may, it is essential to examine the economic fundamentals sought to be protected by reference to the political profile of the future Basic Law and to evaluate both the economic and political structures by reference to, among other things, their credibility.

Nothing illustrates this better than the promise of "a high degree of autonomy" (gaodu zizhi). The concept is essentially political, but it has an economic impact so profound that without the promised autonomy, the ability of the Hong Kong SAR to become more than just another Chinese coastal city would be completely destroyed. More accurately, unless visibly credible steps are taken to realize the promise of autonomy, the declared objective of "prosperity and stability" will become unattainable.

The Joint Declaration itself was largely an exercise in building credibility. The PRC could have simply made a unilateral declaration of its basic policies regarding Hong Kong. Such a unilateral declaration, however, would not have had the credibility of a negotiated settlement and the external restraint constituted by a legally binding treaty. Even a legally binding treaty, however, may be lacking in credibility. Hence, the need to develop norms of credibility by which the promised future may be evaluated.

In its broadest sense, a credibility norm is simply any standard by which the credibility of a system or enterprise may be judged. The promise of autonomy (gaodu zizhi), the principle of continuity (zhidu bubian) and the precept of maintaining prosperity and stability (fanrong anding) are three primary norms by which the draft provisions of the Basic Law and the concept of "one country, two systems" may be evaluated.

There is another prescriptive, rather than descriptive, sense in which the term credibility norm is used herein. Because the primary norms may themselves be deficient in credibility either initially or by reason of subsequent developments, it becomes imperative to solve the credibility problem if an enterprise is to be a success. In its prescriptive sense, therefore, a credibility norm is a rule of action which seeks to augment that which is perceived to be deficient in credibility. It is thus a principle of selection which seeks out among available options that which provides the most credible solution to a given problem. Therefore, the development of a credibility norm involves, first, a judgment as to what deficiency in credibility exists and, second, a decision as to what must be done to cure the deficiency.

An illustration on the level of selection of options is supplied by the controversy over how the chief executive for the Hong Kong SAR should be chosen. The elaboration by the PRC Government of its basic policies regarding Hong Kong contained in Annex I of the Joint Declaration stipulates that the chief executive for the SAR is to be appointed by the Central Government on the basis of either "consultations" or "elections" held locally. A consultative model, therefore, would be in perfect accord with the letter of the Joint Declaration, but, in this writer's view, lacks credibility when considered in conjunction with the promised high degree of autonomy.

Demonstration of real credibility will require something more than minimum compliance with the Joint Declaration. Nothing less than a full and generous implementation of the Joint Declaration will succeed in maintaining Hong Kong's prosperity. The principle of full and generous implementation is a credibility norm which works on the premise that credibility is best tested in areas where a choice of options exists. Thus, if the PRC Government shows a propensity to exercise greater control of the Hong Kong SAR whenever the option presents itself, or if it re-interprets terms in the Joint Declaration so as to secure such control, questions will naturally arise as to what credence should be placed in the promised autonomy. If, on the other hand, it measures up to the credibility norm of full and generous implementation, favoring options which give as high a measure of self-rule as is consistent with the terms of the Joint Declaration, the credibility of the entire enterprise will be immeasurably enhanced. The principle of full and generous implementation also leads to recognition of the opportunity to translate, where appropriate, various rules of self-restraint into credible constitutional guarantees or directive principles, a point discussed below.

This analysis focuses on the economy and autonomy provisions of the Collection, not only because of the inter-relationship between these areas, but principally because such an approach will enable the credibility of the new political order to be tested at both its strongest and its weakest points. The realm of economics is one where the impact of a credibility problem is often measured in dollars and cents, as Hong Kong's 1983 financial crisis amply demonstrated.

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