Author: Grenville Cross

The Basic Law lays out the full framework for “One Country, Two Systems”

The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China was adopted by the National People’s Congress (NPC) on April 4, 1990. It took effect in Hong Kong on the reunification day, July 1, 1997. As 35 years have passed since its enactment, its impact can be fully appreciated.

After the Sino-British Joint Declaration on Hong Kong (JD) was signed in 1984, the paramount leader, Deng Xiaoping, sought to allay any concerns that the British prime minister, Margaret Thatcher, might still have had. He famously assured her that “Horses will still run, stocks will still sizzle, dancers will still dance.” Although he was correct in predicting continuity, it was only in consequence of careful planning.

The Basic Law was drafted with an eye on the 21st century. It has not only ensured the continuation of the capitalist system and way of life that Hong Kong enjoyed prior to the reunification, but also cemented their standing over time. Its promulgation seven years before the handover was sensible, and put people’s minds at rest well in advance of 1997. It not only incorporated the basic principles for Hong Kong’s governance under Chinese sovereignty, but also provided it with a comprehensive blueprint for the practical implementation of Deng’s “one country, two systems” governing policy.

Deng’s goal throughout was the peaceful reunification of China. This meant resolving the sovereignty and governance issues of Hong Kong, Macao and Taiwan. He knew that if reunification was to be achieved, the “one country, two systems” policy had first to prove its worth in Hong Kong, and the central authorities have always sought to nurture it. It has already ensured the successful return to the motherland of two of the three regions, and the third will hopefully follow suit before too long.

On August 22, 2024, on the 120th anniversary of Deng’s birth, President Xi Jinping paid tribute to his legacy. He said Deng’s “one country, two systems” policy had “opened up a new path to achieve the complete reunification” of China. Deng’s vision was achievable because it centred on the country’s overall and long-term interests, ensuring that Hong Kong and Macao both enjoyed autonomy and stability.

The Basic Law safeguards the fundamental interests of Hong Kong residents

A comparison between the JD and the Basic Law is illuminating. It shows how the Basic Law not only fleshed out the JD’s bare bones, but also extended its parameters. Whereas, for example, the JD simply said that Beijing would appoint Hong Kong’s chief executive based on the results of “elections or consultations to be held locally,” and that local people would administer the Region, the Basic Law went far further. It stipulated that universal suffrage was the “ultimate aim” in elections for both the chief executive and the legislative council. This must have delighted Britain’s JD negotiators, who would have expected far less.

If, in 2015, anti-China legislators had not blocked the proposal to allow the chief executive to be elected by universal suffrage, this could have been achieved in the 2017 election. If the proposal had been approved, it would also have opened the door to the further democratization of the legislative council. Although a missed opportunity, it was certainly not the end of the road.

Moreover, while the JD said nothing about Hong Kong’s future national security arrangements, the Basic Law put everybody’s minds at rest. It provided that the future special administrative region would be entrusted to enact national security laws “on its own”(Art.23), which was a remarkable show of faith in its people.

In other countries, laws of this type are enacted by national parliaments, but the central authorities believed Hong Kong would do the right thing and ensure the country’s safety. After an insurrection in 2019, resulted in the Hong Kong National Security Law being promulgated in 2020.The Basic Law’s mandate was finally discharged in 2024, when the Safeguarding National Security Ordinance was enacted by the legislative council.

By any yardstick, the Basic Law is a remarkable constitutional document. Although it emphasizes that Hong Kong is an integral part of China, it also provides it with a high degree of autonomy. It has its own executive, judicial and legislative branches. Apart from defence and foreign affairs, Hong Kong exercises a significant measure of control over its affairs, and its people enjoy an array of rights and freedoms.

For example, Hong Kong has its own currency, issues its own passports, controls its own borders, has free currency flows, is a free port, has a common law system, and maintains relations with foreign governments. The socialist system is not practiced in the city, and free market economics are encouraged.

Hong Kong also has an independent judiciary, prosecuting authority and legal profession, all vital components of the rule of law. It also has a media which freely expresses its views, often critical of the authorities.

This situation is directly attributable to Deng’s far-sightedness. He was always keenly aware of the expectations of Hong Kong people, whose outlook on life, for historical reasons, was shaped by different traditions. He once said “Whether Hong Kong will remain prosperous under China’s jurisdiction ultimately depends on policies tailor-made for Hong Kong,” which was incontrovertible. The policies reflected in the Basic Law are, therefore, directed to maintaining the city’s own distinctive way of doing things, underpinned by the rule of law.

The Basic Law, for example, provides that the provisions of the International Covenant on Civil and Political Rights (ICCPR)“shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region”(Art.39). This heartened many people, including the legal profession. It meant that the Hong Kong Bill of Rights, which domesticated the ICCPR, has remained in force and can be relied upon in judicial proceedings.

The role of the judiciary has always been fundamental to Hong Kong’s way of life, which is why it has sometimes been targeted by anti-China elements, both locally and abroad. They believe that if they can undermine the judiciary, it will cause Hong Kong to lose its allure as an international financial centre, thereby harming China. The Basic Law recognizes the judiciary’s status, and provides that the courts “shall exercise judicial power independently, free from any interference”(Art.85).

Although judicial independence existed in the British-colonial era, this was only as a convention, and it was never formally underwritten. It must be profoundly reassuring to today’s judiciary that its independence is now constitutionally guaranteed. Operating from a secure base, the judges administer justice (as the judicial oath puts it)“without fear or favor, self-interest or deceit.”

Like independent judiciaries everywhere, Hong Kong’s judges have sometimes ruled in favor of the government, and sometimes against. It is often said that “justice is blind,” and the judiciary embodies this concept. On March 6, 2025, for example, the HKCFA rejected political activist Tam Tak-chi’s claim that there could only be a sedition conviction if a person intended to incite violence or public disorder (FACC 12/2024). By contrast, the same day, a political organizer, Chow Hang-tung, persuaded the HKCFA to quash her conviction for failing to assist the police with a national security investigation (FACC 11/2024).

Judgments like these are the indicia of a free judiciary focused on achieving just outcomes, even if upsets some people in the process.

Moreover, the judiciary is empowered to review the acts of the executive and rule them invalid if they are inconsistent with the Basic Law. It has never shied away from doing so when the interests of justice required, however controversial. The Basic Law’s constitutional protections have been used to rule against the government in cases involving, for example, freedom from discrimination and protection of private ownership rights.

As the Basic Law is a national law, nobody should be surprised that the power of interpreting it is vested in the NPC’s Standing Committee (Art.158). The PRC’s Constitution entitles the NPC Standing Committee “to interpret laws”(Art.67), and the power of interpretation housed in the Basic Law reflects this, at least to a degree. In this context, let nobody forget that at its outset the Basic Law proclaims that Hong Kong “is an inalienable part of the People’s Republic of China”(Art.1).

However, notwithstanding the NPC’s power of interpretation, the Basic Law stipulates that Hong Kong’s courts are authorized to “interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region”(Art.158). They may also interpret “other provisions of this Law in adjudicating cases,” although there is a caveat.

If, when the courts are adjudicating cases, they need to interpret the Basic Law in areas which are the responsibility of the Central People’s Government, or concern the relationship between the Central Authorities and the Region, and if their interpretations will affect the judgments in particular cases, they should seek an interpretation from the NPC’s Standing Committee (through the HKCFA).

The Basic Law safeguards the prosperity and stability of Hong Kong

Although the NPCSC’s power of interpretation has attracted foreign criticism, its function should be better understood. It is essentially precautionary, and delineates the ambit of the courts’ jurisdiction. As the “one country, two systems” policy is unique, it ensures its smooth operation in the processing of court cases. Some issues inevitably fall outside Hong Kong’s high degree of autonomy, and necessarily require national resolution.

However, the power of interpretation has been exercised with great restraint. Almost 28 years after the reunification, it has only been invoked five times, or approximately once every 5 years and 7 months. The issues involved right of abode, amending electoral arrangements, the term of office of a new chief executive succeeding a resigned predecessor, state immunity, and the requirements of lawful oaths and affirmations by legislative councilors.

The last time when the NPCSC gave an interpretation was in 2016, almost a decade ago. It was required after two recently elected legislators, Sixtus Baggio Leung Chung-hand and Yau Wai-ching, made a mockery of their swearing in ceremony. Instead of approaching the occasion with the solemnity it deserved, they inserted profanities into their oaths, deliberately mispronounced words, and disrespected their country.

Although Beijing-hostile legislators had previously got away with similar conduct, the NPCSC confirmed it was intolerable. Anybody who behaved that way in future would face immediate disqualification (there has been no repetition).The five interpretations have all proved beneficial in their own way, and have ensured Hong Kong’s steady progress within the overall context of national development.

Moreover, as the Court of Appeal has explained, the Basic Law is a living instrument which moves with the times and meets changing needs and circumstances. Maintaining the “one country, two systems” policy means looking to the future, not stagnating. The Court explained that the Hong Kong system “should continue to develop within the confines of the Basic Law to suit the contemporaneous needs and circumstances of our society, some of which may be beyond the drafters’ contemplation”(CACV 8, 10, 87 & 88/2019, June 11, 2021).

Since at least 1990, the Central authorities have been heavily invested in the “one country, two systems” policy. They, no less than anybody else, want Hong Kong to succeed. This, for example, was vividly demonstrated in 2021 when the NPC approved the 14th Five-Year Plan for National and Economic Development and Long-Range Objectives Through the Year 2035 of the People’s Republic of China, which highlighted Hong Kong’s role in the country’s overall development.

With its national security arrangements in place and its rule of law flourishing, Hong Kong is a reliable partner for the rest of China. It is more than holding its own on the global stage and is also a significant regional player, as the evidence confirms.

Whereas, the Fraser Institute ranked Hong Kong the world’s freest economy on Oct 16, 2024. The Global Financial Services Index, adjudged it Asia’s leading financial centre on March 20, 2025. On Oct 23, 2024, the World Justice Project’s Rule of Law Index was published, Hong Kong was ranked 23rd out of the 162 jurisdictions surveyed, it was a big feather in its cap.

Hong Kong’s progress in these and other areas is exactly what Deng hoped for, and which the Basic Law has enabled. He and its other architects should be congratulated for their prescience, and they are owed a debt of gratitude. However, it would be a mistake for Hong Kong’s people to rest on their laurels. Everybody should continue to aim high, as the best is yet to come.

(Grenville Cross, Senior Counsel and law professor, previously the Director of Public Prosecutions of the Hong Kong SAR.)