By the Editorial Board of The Tibetan Political Review
Proponents of the Middle Way policy have recently been placing increased hope on Chinese law. Exhibit A in this argument is Article 31 of the Chinese Constitution, which allows for the creation of Special Administrative Regions such as Hong Kong. The claim is that Chinese law already provides for the type of autonomy that Tibetans demand, and what’s missing is only political will from China to implement its own law.
There is a major problem with this view, unfortunately, and it is not the obvious ones of China’s lack of political will or the legal non-enforceability of the Chinese constitution.
Rather, the missing factor is that even for Hong Kong, autonomy under China’s Article 31 has always been understood to be only temporary. Hong Kong’s freedoms are scheduled to expire after a transitional period, when the territory will then be absorbed into the Chinese political system. Strangely, this factor is wholly ignored in the public analysis of whether the Hong Kong model has utility for Tibet.
Looking Closely at China’s Article 31
Article 31 was added to the 1982 Chinese Constitution for the purpose of easing Hong Kong and Macao (and possibly Taiwan) back under Chinese sovereignty. The inconvenient truth is that Hong Kong’s current status is simply a prelude to full incorporation into China. The Basic Law, which serves as Hong Kong’s mini-constitution, provides that Hong Kong’s “capitalist system and way of life shall remain unchanged for 50 years”. This means that, come 2047, Hong Kong will no longer be protected by its autonomous arrangement.
To make certain of this outcome, the Basic Law also provides that only China’s National People’s Congress has the power to interpret or amend the law. (An almost identical basic law in Macao provides that autonomy there will also only last 50 years.) And even during this temporarily autonomous period, China has not yet followed its own legal obligation to allow universal suffrage for the Hong Kong legislature or the chief executive.
Seemingly, nothing in the words of China’s Article 31 demand that Hong Kong’s autonomy expire. But any serious scholar of constitutional law (and Chinese law, even more so) will know that law is more than the words on the page. If China’s Article 31 were intended to protect diversity, Hong Kong’s autonomy would not have what is known as a “sunset provision”. But it does.In fact, Hong Kong and Macao are set to become normal provinces of China after a defined period of time. This shows that China’s Article 31 at its heart is not a liberal democratic autonomy mechanism. It is, rather, a strategic “gift” that China intends to take back. It is a narrowly-tailored political tool to allow the People’s Republic of China to acquire or re-acquire “lost” territories.
Hong Kong residents are starting to acknowledge the looming change that their territory will face. Suzanne Pepper, a political scientist writing in the Hong Kong Journal in 2009, explained that Hong Kong’s “one country, two systems” formula should “be seen not as a permanent solution but only as a transitional arrangement leading to full political integration.” She continued:
“The moral of this story is that the two-systems solution is not what it seems from a distance. Although carefully written and promoted to obscure the endgame, Hong Kong’s Basic Law authorizes all the means necessary to facilitate integration within the national political system and that process is well advanced. Even the staid South China Morning Post has begun slipping lines about full integration by 2047 into its editorials.”
While the Basic Law is honest that Hong Kong only has a 50 years’ reprieve, the Seventeen Point Agreement that China imposed on Tibet in 1951 promised a permanent arrangement. Of course, Tibet’s nominal autonomy lasted only eight years, until 1959.
But in all cases – Tibet, Hong Kong, and Macao – autonomy was proffered by China merely as a temporary, incremental strategy. The final goal was always integration. Autonomy was never intended by China to be permanent (the Hong Kong and Macao arrangements say so explicitly, and everyone knows what happened to Tibet). Therefore, China’s strategic patience must not be confused with any sort of genuine commitment to diversity or to allowing real self-determination outside of Communist Party control.
In other words: China may be willing to wait, but ultimately it intends all temporarily autonomous territories to be integrated fully into the Motherland.
Towards a Stronger and More Realistic Policy
With this overriding Chinese policy goal, it is difficult if not impossible to conceive of a “Tibet Special Administrative Region” under China's Article 31. We believe this is the only reasonable conclusion based on even a modest understanding of Chinese politics and law. We might wish otherwise, but wishes do not make reality.
Sadly, the point seems to be lost or obscured in the arguments being made for why the Middle Way is supposedly in harmony with Article 31.
Arguing for Middle Way-Article 31 harmony is, unfortunately, wishful thinking. The mistake is in interpreting a legal clause without regard for the completely different political context, legal system, and philosophical framework in which the clause developed. It would be like reading the U.S. Constitution’s First Amendment (“Congress shall make no law …abridging the freedom of speech…”) ignorant of the vast body of case law setting out when Congress can actually abridge free speech.
Given the reality of Chinese constitutional law, any autonomy under China’s Article 31 is only a temporary one, granted for the specific purpose of incrementally integrating a territory into the People’s Republic of China. That is why it is almost impossible that China would ever consider applying it to Tibet. China already “owns” Tibet, in its view.But even if the Central Tibetan Administration’s (CTA) policy were somehow successful against all odds, and China were to give Tibet a “Hong Kong deal”, then what? Tibet would just be back in the situation that it found itself in leading up to 1959, facing re-absorption by China in a set number of years. But not to worry; China will almost surely never consider such an offer anyway because it would defeat the very purpose of Article 31: more integration, not less.
Thus, it would be reasonable to say that the CTA’s attempt to link the Middle Way policy with Hong Kong’s expiring autonomy may be well-meaning, but is painfully ironic and dangerously unrealistic or naïve. We believe that open and objective debate of the pros and cons of any idea leads to better policy. Therefore we are optimistic that participation from Tibetan citizens around the world will help the Tibetan movement improve its approach. Such free debate will hopefully lead to a stronger policy in the best interests of the Tibetan people.
--* To read more on the fate of Hong Kong after 2047, please see: China’s Hong Kong Transformed: Retrospect and Prospects Beyond the First Decade, Ming K. Chan (ed.), City Univ. of Hong Kong Press, 2008 (available online on Google Books).