British Parliament should review unilateral legislative moves by last HK governors that left holes in the democratic process

The British Parliament has launched an inquiry into the present chaotic situation in Hong Kong. As someone who was a visiting chair professor at Lingnan University at the critical juncture (1997-99) of Hong Kong's handover to China and who has followed events in the Hong Kong Special Administrative Region ever since, my immediate thought on hearing the news was that I do not envy the parliamentary team that will conduct the inquiry. While its charge is to examine the implementation of the Sino-British Joint Declaration of 1984 that set the terms for the transfer of Hong Kong's sovereignty, a review of that implementation process will also have to look at Britain's responsibility between 1985 and 1997 as well as what has happened under the Chinese after the 1997 handover.

Article 4 of the Joint Declaration provides that "during the transitional period between the date of the entry into force [1985] of this Declaration and 30 June 1997, the Government of the United Kingdom will be responsible for the administration of Hong Kong with the object of maintaining and preserving its economic prosperity and social stability". The same article provides for "Chinese cooperation" in the course of the transitional British administration of Hong Kong. According to Article 31 of the Law of Treaties Convention (1969), a treaty (including an agreement) is to be interpreted "in light of its object and purpose". Since the foremost purpose of the agreement between China and Britain was to preserve the "current" system and stability of Hong Kong, this part of the Declaration should be construed to imply the preservation of the "current" system as it existed in 1985.

Notwithstanding this commitment, however, the British caretaker administration unilaterally (without Chinese "cooperation" or consent) engineered some crucial changes, with far-reaching consequences for the post-1997 period. For example, it amended, and emasculated, the Public Order Ordinance in 1992 and the Societies Ordinance in 1995. To these it added, for the first time, indirect elections for the Legislative Council. Then in 1994, Christopher Patten, the last British Governor, pushed through electoral reforms that in retrospect, unleashed an invidious "revolution of rising expectations" for future democracy fights in Hong Kong.