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The structural collapse of 'one country, two systems': A constitutional autopsy of Hong Kong's autonomy
In Brief
- The 'one country, two systems' framework contained a fatal structural paradox: autonomy was granted by a sovereign power (the NPC), creating a hierarchy where central state practice could inevitably override written guarantees.
- The erosion was facilitated by specific legal mechanisms, notably Article 18(4) of the Basic Law, which provided a constitutional exception for central intervention based on threats to 'national unity or security.'
- Constitutional protections for rights and freedoms proved fragile because they were not anchored in local popular sovereignty and were vulnerable to suspension when they became politically 'inconvenient' for the sovereign authority.
- The Hong Kong experience demonstrates the principle that 'deeply embedded traditional ways of carrying out state policy' can become a 'tougher and truer law' than the 'dead words of the written text.'
Main authors
The principle of 'one country, two systems' was conceived as a novel constitutional experiment, designed to preserve Hong Kong's distinct capitalist system and way of life for 50 years following its transfer of sovereignty [1]. The framework, enshrined in the Hong Kong Special Administrative Region (HKSAR) Basic Law, promised a high degree of autonomy, stipulating that central government departments would not interfere in affairs administered by the HKSAR [2]. This promise was buttressed by guarantees of fundamental rights and freedoms, including equality before the law, private property ownership, the right to vote, and freedoms of speech, procession, and demonstration [3]. The Basic Law outlined a vision of a self-governing region, where even non-governmental organizations could maintain and develop international relations [4].
However, this constitutional architecture contained inherent structural vulnerabilities from its inception. The very document that guaranteed autonomy also included provisions for the application of national laws under certain conditions, creating a mechanism for centralized state intervention [5]. This established a fundamental tension between the written promises of self-governance and the practical exercise of sovereign power by the central state. The political crisis that has since unfolded can be understood not merely as a breach of these promises, but as the resolution of this built-in ambiguity. The gradual erosion of Hong Kong's autonomy illustrates a broader constitutional principle: that deeply embedded state practices can become a 'tougher and truer law' than the 'dead words of the written text' [6], particularly when constitutional protections are deemed inconvenient by a higher authority [7].
The Ambiguous Fountain of Power
A constitution's legitimacy and stability often rest on the source of its authority. In many free governments, political power is understood to be inherent in the people, who are the 'only legitimate fountain of power' from which a constitutional charter is derived [8, 9, 10]. This principle of popular sovereignty anchors constitutional guarantees in the will of the governed. The HKSAR Basic Law, however, follows a different logic. It was not created by the people of Hong Kong but was adopted by the National People's Congress (NPC) of the People's Republic of China and put into effect in 1997 . This establishes a clear hierarchy of power, where the HKSAR's constitutional framework is a grant from a higher sovereign authority, rather than an expression of local popular will.
This hierarchical structure creates what has been described in other contexts as a 'plain repugnance,' wherein one government possesses the power to control the constitutional measures of another that is meant to be supreme in its own affairs [11]. The Basic Law's explicit prohibition on interference from central government departments is therefore not an absolute, but is contingent upon the central authority's interpretation of the constitutional arrangement. The relationship is not one of equals, but one where the autonomy of the subordinate entity is defined and ultimately policed by the sovereign. This inherent imbalance means that the constitutional protections afforded to the HKSAR are vulnerable to reinterpretation or override by the authority that granted them in the first place.
Over time, this structural dynamic allows state practice to shape legal reality, creating a 'gloss which life has written upon' the original text . In the case of Hong Kong, the central government's increasing assertion of its authority can be seen as the establishment of a 'settled state practice' that effectively supplants the initial constitutional guarantees . This process demonstrates that constitutional arrangements are not static. Unwritten norms and the exercise of power can redefine the meaning and force of a written constitution, particularly when that document contains unresolved tensions between local autonomy and central sovereignty [12]. The result is a system where the foundational promises risk becoming inoperative when they conflict with the political imperatives of the sovereign state .
Mechanisms of Intervention and the Supremacy of National Security
The erosion of Hong Kong's autonomy was not solely the result of informal political pressure; it was enabled by specific legal mechanisms embedded within the Basic Law itself. A critical provision allows for the application of relevant national laws if the central government declares a state of war or if there is turmoil within the HKSAR that is deemed to endanger national unity or security and is beyond the control of the local government . This clause functions as a constitutional exception, providing a legal pathway for the central state to intervene directly in the region's affairs, thereby suspending its promised autonomy.
The existence of such an emergency clause creates a profound vulnerability. It reframes potential interventions not as extralegal acts of 'usurpation,' which are seen as destructive to free governments [13], but as the legitimate activation of pre-existing constitutional powers. This legal framing makes it difficult to challenge such interventions on constitutional grounds within the established system. The power to define what constitutes 'turmoil' or a threat to 'national unity or security' rests with the central authority, giving it wide discretion to invoke these powers. The state's power to create can thus be rendered useless by another government's power to destroy or control its constitutional measures .
This dynamic is analogous to the extensive and often unchecked power that executive branches possess in the realms of national defense and international relations in other systems [14]. When national security becomes the primary justification for state action, the normal checks and balances of a constitutional system are often sidelined. In the Hong Kong context, the invocation of national security has served as the primary tool for the central government to assert its control, overriding local legislative and judicial processes. This demonstrates how a matter that should be governed by a region's own laws can be transformed into a matter of national interest, thereby justifying intervention and fundamentally altering the balance of power enshrined in the constitutional framework [15].
The Unraveling of Political Rights and Freedoms
The promise of universal suffrage was a cornerstone of the Basic Law's vision for Hong Kong's political development. However, the text specified that the method for forming the Legislative Council should proceed according to the 'principle of gradual and orderly progress,' with the election of all members by universal suffrage as the 'ultimate aim' [16]. This intentionally ambiguous language, lacking a clear timeline or enforcement mechanism, left the fulfillment of this crucial promise at the discretion of the central government. Consequently, progress toward this goal was consistently stalled, transforming a foundational democratic right into a perpetually deferred objective. This approach stands in contrast to democratic principles which hold that government must be 'for the people' and not merely reliant on power acquired through a controlled electoral process [17].
A similar degradation occurred with fundamental civil liberties. The Basic Law guarantees freedom of speech, procession, and demonstration . However, these rights were qualified, with the right of assembly, for instance, being explicitly limited to 'peaceful assembly' . Such qualifications provide a legal basis for authorities to impose restrictions, and the definition of what is not 'peaceful' can be broadened to suppress dissent. This practice runs counter to the constitutional theory that the risk of public scandal or harsh criticism of government is a lesser evil than granting the state the authority to prevent such expression [18]. As the political environment shifted, these qualifications were used to dismantle the robust protections for expression and assembly that had defined the city.
The systemic unraveling of these rights exemplifies a dangerous constitutional doctrine: that protections indispensable to a free society [19] can be suspended or ignored when they become politically inconvenient . The process was not a formal revision of the Basic Law, but a de facto alteration through interpretation and the imposition of new national security frameworks. This method, a form of 'change by usurpation,' is precisely what many constitutional thinkers warn is a weapon by which free governments are destroyed . Freedoms once considered central to the HKSAR's identity, such as the ability of its civil society to engage with international counterparts , were re-contextualized as potential threats to national security, justifying their curtailment.
In retrospect, the erosion of Hong Kong's constitutional guarantees appears to have been a structural inevitability rather than a simple failure of political will. The 'one country, two systems' formula was a delicate balance, but one where the scales were always tipped in favor of the sovereign power. The Basic Law, the very charter of the region's autonomy, contained the legal architecture for its own undoing . The tension between its promises of self-governance and its recognition of ultimate central authority created a constitutional paradox . The subsequent political crisis was the forceful resolution of this paradox, demonstrating that in a direct conflict, the principles of 'two systems' would be subordinated to the imperatives of 'one country'.
The fate of Hong Kong's autonomy serves as a profound case study in the limits of written constitutions. It reveals that constitutional guarantees, no matter how explicitly stated, are fragile when they are not supported by an underlying balance of political power and a shared consensus on their inviolability. When a single sovereign entity has both the authority to grant rights and the power to define their limits, those rights exist at its discretion . The Hong Kong experience underscores a timeless truth of constitutional law: that the 'dead words of the written text' offer little protection against the 'tougher and truer law' of state power when it decides to assert itself .
