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Province unsuitable as a unit of governance

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by Neville Ladduwahetty

The government is reportedly planning to hold the provincial council elections while an expert committee is actively engaged in the making of a new constitution. Holding elections before the drafting of a constitution imposes a constraint on the expert committee since it cannot afford to drift too far from existing arrangements if it is not to incur the ire of the elected members following an election. This means that the expert committee cannot take into account the prevailing antipathy towards Provincial Councils (PCs), for whatever reason, and propose a fresh approach to devolution

This would be the unfortunate outcome if elections to PCs are held prior to the promulgation of a new constitution. If elections are held after a new Constitution is in place, it will give the expert committee an opportunity to propose a fresh approach after taking into account the lessons of historical experiences Sri Lanka has had to endure. Therefore, the plea to the government is to give the country the opportunity to evolve a system of government that serves them best, free of constraints.

 

LESSONS OF HISTORY

Having gained control of the whole of the island following the Kandyan Convention in 1815, the British attempted to administer the island as a single unit under a Governor. It did not take long for the British to realize that consolidation of power through an effective administration required the island to be sub-divided into smaller units as recommended by the Colebrooke-Cameron Reforms of 1833. The process of sub-division that started out with five (5) Provinces ended up with nine (9) provinces in 1889. Throughout this process of sub-division each province was further divided into districts and even smaller units in order to better administer the province. Thus by 1889 the nine provinces ended up being divided into the 25 districts.

With the introduction of the 13th Amendment to the Constitution in 1987, which created Provincial Councils, the lessons of history were ignored. Although the lesson of history was that smaller units are more effective as an administrative tool, the reversal to the larger unit of the province ignored the colonial guidelines of administration. The plea to the framers of the New Constitution is that these lessons of history are not ignored. What history has demonstrated clearly is that the province as a unit is ineffective as a unit of governance.

Although the administration of the island was based on the provinces under an all-powerful Government Agent for each province from 1833, his powers underwent significant derogation with the introduction of the Donoughmore Commission recommendations of 1931. Affirming this trend, the citation presented below states: “The status of the GA after the Donoughmore recommendations could be portrayed through the following note. ‘The division of government’s activities into ten ministries with a minister in charge of each activity, in place of general surveillance by the colonial secretary reduced enormously the power and responsibilities of the GA and led to the appointment of the departmental organizations responsible to the minister to manage many of the executives formerly entrusted to GA’. Thus the power and status of the GA, who was once an unquestioned authority in the district, underwent gradual erosion with the acquisition of his powers and authority of local administration by the departmental field agencies (Leitan p.41) Local administration for instance, under which Sanitary Boards and Village Committees were formerly supervised by the Kachchery organizations was now under the Department of Local Government. Education, Agriculture, Health and Public Works that were the subjects under the purview of the GA were the responsibilities of relevant departments under the executive committee system. (Ranasinghe R.A.W, “Role of Government Agent in Local Administration in Sri Lanka, International Journal of Education and Research, Vol. 2 No.2 February 2014).

Commenting on the process of division and sub-division during the colonial period where the powers of the provincial Government Agent become increasingly marginalized, Dr. Peiris in a characteristically scholarly article states: “Intra-provincial administrative adjustments were made at various times bringing the total number of Districts in the country from nineteen in 1889 to twenty-five at present. Government Agents of the provinces, holding executive power over their areas of authority, coordinated a range of government activities in their respective provinces. It is important to note, however, that in certain components of governance, while the related regional demarcations did not always coincide with provincial and district boundaries, the Government Agent had either only marginal involvement or no authority at all. This was particularly evident in fields such as the administration of justice, maintenance of law and order, and the provision of services in education and health care, in which there is large-scale daily interaction between the government and the people. (Dr. G.H. Peiris, Province-based Devolution in Sri Lanka: a Critique, December 17, 2020).

As Chairman of the Executive Committee responsible for Local Government it was Hon. S.W.R.D. Bandaranaike in 1940 who advocated the district as the most suitable unit from a Local Government perspective. His recommendation to the State Council was: “though the word ‘provincial’ is used here, I would point out that this body would be restricted to a revenue district, not necessarily to a province as we have it now, but to a revenue district. The Galle District, the Matara District, the Nuwara Eliya District and so on…” (Hansard {State Council}, 10 July 1940, pp. 1362-1371).

Thus, the lesson of history confirms the unsuitability of the province by itself as a unit of administration /governance. It is the sub-division of the province to districts that made administration effective during the colonial period. Furthermore, even though the population in the island in 1889 was only three million (Dr. G.H. Peiris), if the colonial powers deemed it appropriate to structure the island into nine provinces and twenty-five districts for reasons of administration, what kind of logic would justify reverting back to the larger unit of the province when the population is more than nearly six times what it was in 1889?

The reason for the reversal to the province was definitely NOT motivated by governance. The motivation for the reversal was clearly political. It was triggered by the need to find a solution to the Tamil national question based on claims of a traditional homeland involving the Northern and Eastern Provinces following the riots of 1983 and the intervention of India under the guise of the Indo-Lanka Accord. The history lesson that had come from colonial times to recognize the district and sub-divisions of the district, was ignored. What was introduced instead, was the province as the unit of governance in 1987, under the 13th Amendment. It is therefore understandable why the reversal to a province is as unworkable today as had been recognized by the colonial rulers.

LEARNING from HISTORY

No amount of additional powers and resources would make the provincial council system work, because the intention of the arrangement was for all power to be retained by the provincial councils. Such a centralized top down approach is inherently unworkable; a lesson the colonial administrators had eventually learnt. The only way to make it work was to devolve powers from the province to districts and to sub-divisions of districts such as pradeshiya sabhas and other local government units. This would derogate the powers currently exercised by the Chief Minister and the provincial council. Consequently, it would not be any different to the erosion of the powers of colonial Government Agents (GA) until the Donoughmore Commission recommendations were implemented and districts and its sub-units directly handled peripheral issues, thereby underscoring the irrelevance of the GA. Therefore, there is little or no prospect of PCs elected under current provisions devolving powers to districts and local governments within the province. Consequently, the current ineffective arrangements under the 13th Amendment would continue unless transformed rationally.

Although the province lost its relevance from an administration perspective, the British continued to identify the territory of the island in terms of provinces and districts. Even independent Ceylon and the Republic of Sri Lanka continued to identify the territory in terms of provinces and districts. However, it was only Article 5 of the 1978 Constitution that identified the territory of the Republic in terms of the district.

Notwithstanding the identification of the territory of the Republic of Sri Lanka in terms of the district, the reference to province resurfaced following the Vaddukoddai Resolution of 1976 that called for a separate state involving the Northern and Eastern Provinces. With this and the three-decade long armed conflict to create a separate state, the province has once more assumed importance to the point of not only becoming a threat to the territorial integrity of Sri Lanka, but also bequeathed an administrative nightmare that needs to be addressed without any further delay.

That nightmare is that every province in Sri Lanka functions under two parallel systems. One system administers functions relating to line ministries of the central government and a second system administers functions relating to the powers devolved to the provinces under the 13th Amendment. Reverting back to the decentralized system that existed prior to devolution is not a satisfactory arrangement either, because of the remoteness of the center from the priorities of the periphery. Devolving power to the provinces is akin to a centralized arrangement because it is as remote from the periphery. The problem with the current arrangement is not so much due to the two parallel systems, but primarily due to the choice of the unit to which power is devolved. Therefore, accepting that two parallel systems need to function concurrently because of its

in-built merit that power needs to be shared, one way to mitigate its negative aspects is to devolve appropriate power to districts and the local government entities in keeping with the concept of subsidiarity, instead of the provinces as exists today.

POSSIBLE OPTIONS

The choice for the Government is either to live with the current ineffective arrangement as per the 13th Amendment despite the denial of human rights of the overwhelming majority for improved governance, or actively promote a change to current arrangements notwithstanding a possible backlash from those who benefit from current arrangements.

One way to mitigate a possible backlash would be to absorb all the elected members in each PC into a District- based Council and divide the powers currently devolved under the 13th Amendment excluding powers relating to Law and Order, Land and Land Settlement and any others based on the concept of subsidiarity between such District-based Councils and the Local Governments. Such an arrangement would empower the districts with powers it did not have and enhance the powers currently assigned to Local Governments. In addition, it would give many more members currently elected to PCs an opportunity to directly engage in District-level activities than they are today.

For instance, under the current PC system, on an average, only the Chief Minister and four others form the Board of Ministers in each of the nine provinces. This means a total of forty-five are actively engaged in all the nine provinces with the majority of the Council members not having an opportunity to play a meaningful role. Consequently, the arrangement is undemocratic since the majority of elected members do not have the opportunity to contribute their views and express their concerns. If as proposed herein, a five-member Board of Minister is created in each district a total of one hundred and twenty-five Councilors in the twenty-five districts would be in a position to engage themselves meaningfully. According to a website as of 2017 there were 455 PC members. Accommodating all of them in the 25 districts would mean each district-based council would have an average of 18 to 19 members. On the other hand, if the district-based council is made up of a minimum of 2 from each of the nearly 260 Pradheshiya Sabahs (not including the 14MCs and 37UCs) the number in the 25 district council would be 520 i.e. more than from all the PCs. Therefore, whether the district council is formed from members of PCs or from members of local governments, the numbers involved would be similar. The only difference being the cost of conducting an election to elect the district-based council. Therefore, regardless of how the district based council is elected, it is imperative that if Sri Lanka is to prosper it has to transfer powers currently devolved to the provinces to district-based councils and local government entities.

CONCLUSION

The Province as a territorial unit is of relevance to the Tamil political leadership, while it is of no relevance to the overwhelming majority of citizens. To the Tamil leadership the province provides them the opportunity to merge the Northern and Eastern Provinces and carve out a single political unit on grounds of a dubious Tamil homeland claim despite the absence of any physical vestige of such a claim. To the average citizen the province with all power vested in it, is an impediment to improved governance that affects his/her well-being. Furthermore, the province is an ever present and a constant threat to Sri Lanka’s territorial integrity and national security as demonstrated by a three-decade long armed conflict followed by continuing threats by the Tamil leadership to go it alone.

Although colonial administrators started out to govern the island by creating five provinces in 1833 under Colebrooke-Cameron Reforms, they soon realized that effective administration was not possible without creating more provinces along with districts within each province. This process continued until 1889, when the territory of colonial Ceylon was divided into nine provinces and twenty-five districts. However, with the introduction of Donoughmore Commission reforms the relevance of the Government Agent of the province and the province as an administrative tool gradually faded and the smaller unit of the district became the more effective territorial unit for effective governance. This trend is quoted in the references cited above. The district as the unit of administration was also recognized by the State Council for purposes of Local Government even prior to independence in 1940.

These lessons of history were ignored when power was devolved to provinces under the 13th Amendment to the Constitution in 1987. The true intent for resurrecting the province with political power was clearly political because it provided for the Northern and Eastern provinces to be merged into a single territorial unit to be governed by a single PC. For this to happen the province has to survive and its survival depends on how it delivers on governance. The fact that the province has failed as a viable devolved unit means that the province has lost its purpose and therefore the justification to exist.

If Sri Lanka is to prosper it is imperative that the province as a territorial and political entity is abolished for three vital reasons.

One – That powers devolved to the provinces under the 13th Amendments excluding Law and Order, Land and Land Settlement and any others based on the concept of subsidiarity, should be divided between the districts and related local governments with a view to facilitating greater economic development and for reasons of fostering enhanced democratic governance.

Two – That the province represents a clear and constant danger to Sri Lanka’s territorial integrity because its size tempts separatist aspirations.

Three – That because the province was created in order to meet political exigencies and not for reasons of good governance, the time and opportunity have come to abandon serving parochial political imaginings of a few and create a system that focuses on human development for the benefit of all citizens.



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Deteriorating rural economy, and food security

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Photo credit: Nefelibata travels

By Dr. C. S. Weeraratna
csweera@sltnet.lk

Sri Lanka is a land of villages. There are around 14,000 of them. According to the Dept. of Census and Statistics, around 80% of the Sri Lankan population live in villages and estates. Most of them are farmers who are supposed to be suitable to be kings if the mud on their bodies are washed out. According to recent estimates, about 30 percent of the total households, in therural districts of Sri Lanka, live below the poverty line. A socio-economic survey, conducted in the recent past, indicates that although the rural sector has the ability to engage in productive activities, there are many constraints.

Wild elephants:

Wild elephants roaming in some of the dry zone villages,causing death to many and destroying property, aggravate the socio-economic hardships the rural sector has to face, affecting their health, education and many other aspects of the lives.

Chronic Kidney Disease:

Around 70,000 people of the country are affected by a chronic kidney disease (CKDu) . They are mostly in the rural areas of the country and are affected socially and economically. The patients in the final stages of CKDu have to go for dialysis which again affects the economy of rural people . In some families both parents have died and their children are helpless.

Water shortage:

In spite of the country receiving around 100 billion cubic meters of water, annually, there are frequent water shortages, mostly in the rural areas where there are around 12,000 tanks. Most of them are silted, reducing the water holding capacity of these tanks, causing rural communities to face shortage of water which seriously affects crop production and various domestic activities.

Transport:

Lack of reasonable transport facilities, in the rural areas, is one of the main setback to Sri Lanka’s overall prosperity. People living in some rural areas have to cross rivers, using inflated rubber tubes, as there are no bridges. A large number of rural roads remain in a dilapidated condition but, the authorities were more interested in constructing highways.

Inputs:

Fertilisers are a major input in crop production. During the last two cropping seasons, inorganic fertilisers, and pesticides, were not available due to the utterly foolish decision of the former government. Currently, fertilisers are available but they were not available at correct times.

Farmers are forced to obtain seeds at a high cost. For example, a kg of chilli seeds is around Rs. 170,000 and a kg of cabbage seed is sold at Rs 400,000 in the market.

Pest attacks cause considerable problems to farmers. Last year there was the sena caterpillar called “Fall Armyworm” (Spodopteria Frugipedera) which destroyed large extents of cultivated crops. According to press reports, the same pest destroyed thousands of hectares of maize in Ampara causing severe difficulties to the farmers. Brown Plant Hopper tends to destroy paddy.

Marketing:

Those farmers who manage to harvest the crop of rice/vegetables are unable to sell it for a reasonable price. Currently, paddy farmers are unable to sell their Yala paddy crop to cover the costs. Often vegetable farmers are forced to destroy their produce due to inability to market their produce at reasonable prices. Marketing of agricultural products, at a profit to the farmer, is an issue which the authorities need to take cognizance of.

Unemployment:

Unemployment is rampant in the country. As a result of government-imposed restrictions on imports, commercial activities of thousands of companies are slowing down, seriously affecting the private sector in the aftermath of the COVID-19 pandemic. Most of those companies have been compelled to reduce employment, non-renewal of employment contracts, and halting new recruitments, resulting in an increase in unemployment. Thousands of workers, in the construction sector, have already lost their jobs. These business enterprises are currently facing liquidity issues due to a loss of revenue and difficulties in the importation of raw material. Thousands of SMEs have closed down mainly due to lack of inputs, resulting in an increase in unemployment.

As a result of these limiting factors, rural economy is deteriorating. For the success of any development programme to improve the rural economy, it is essential to address the problems of the rural communities. However, the previous governments did not give priority to these critical issues, faced by farmers, who continue to live in abject poverty as a result. Most of them have to pawn their jewellery, or resort to some other ways ,to obtain finances to obtain agricultural inputs, such as seeds, fertilisers, pesticides and labour. Some of them have become prey to micro-credit companies.

All these issues cause untold hardships to thousands of farmers and have a negative impact on the rural economy. No effective actions appear to have been taken, by the relevant authorities, to implement appropriate solutions to these problems, except appointing committees. Those representing the farming community, in the Parliament, appear to be not concerned about the plight of our farming population who have voted them to power.

There is no centralized planning in farming in the country which, sometimes, leads farmers to cultivating the same crop/s, ultimately resulting in gluts. Previous governments attempted to solve this problem by implementing programmes, such as Api Wawamu-Rata Nagamu and Divineguma. But we continue to spend nearly Rs.300 billion, annually to import food. If the authorities are genuinely keen to improve the rural economy, they need to address these issues.

Food Security:

Food Security is closely related to rural economy. According to the United Nation’s Committee on World Food Security, food security is at maximum level when all people, at all times, have physical, social and economic access to sufficient, safe and nutritious food, to meet their dietary needs and food preferences for an active and healthy life. According to World Food Programme’ s latest food security assessment, about three in 10 households (6.26 million people) in Sri Lanka are food insecure. Cost of essential foods has increased during the last few months hindering the population’s ability to consume nutritious food in sufficient amounts. The food security situation is worst among people living in the estate sector.

Nutritious food to meet the dietary requirements of people need to contain mainly carbohydrates, proteins, vitamins and minerals. The local production of carbohydrates (mainly rice and sugar), and proteins (fish and milk) is inadequate to meet the demand. Hence, these food items are imported. During the last few years, we have spent nearly Rs. 300 billion, annually, on food imports, although it has decreased during the last few months, mainly due to restrictions on import of some food.

Availability of rice locally has decreased mainly because of inadequate availability of plant nutrients (nitrogen, phosphorus and potassium) through inorganic fertilisers. This has caused large amounts of rice to be imported. There appears to be no effective programmes to increase sugar production in the country. About two decades ago, in the1990s, sugarcane was cultivated in about 25, 000 hectares. At present, only about 12,000 ha are under sugarcane. The sugar factory, in Kantale, remains out of production, for nearly 15 years.

Availability of fish and milk has reduced due to a number of factors which the government appears to be not taking appropriate measures to increase the production of these items. According to press reports, the government is planning to import cattle from India and Pakistan to increase local milk production. It is foolish to import cattle to enhance milk production in the country without implementing an integrated programme to upgrade local cattle, making available cattle feed and improving veterinary practices in the country.

In Sri Lanka, during the last two decades, perhaps a few thousands of research studies, related to food security, involving billions of rupees worth of scarce resources, have been conducted. It is important that we utilize these research findings to find solutions to the pressing problems of the country. But there appears to be no effective system to make use of the research findings. Lack of an integrated plan is a factor responsible for the decline in food security. There has been rhetoric on rural economic development during the last few years. It is meaningful and effective actions that are necessary.

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A first indication of readiness to go on a new path

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By Jehan Perera

None too soon, President Ranil Wickremesinghe appears to be putting the brakes on the government’s policy of repression in dealing with public protests. His decision to initially sign the Gazette notification declaring key areas of Colombo to be High Security Zones was roundly criticised by human rights organisations including the Human Rights Commission of Sri Lanka. The business sector also complained that this decision which appears to have been made by the security establishment would be injurious to business. Revoking the High Security Zones made practical sense in view of the dubious legal basis of the declaration. The High Security Zones were to be set up under the Official Secrets Act which has hardly anything in common with the purpose of the new regulations.

The High Security Zone concept, which was practiced in the North and East of the country during the time of war, would have made it difficult for vehicles to even park on the roads without first obtaining special permission. There were also legal cases filed in the Supreme Court alleging violation of constitutional rights. The president would also have been aware of the resolution on Sri Lanka that is about to be presented for a vote at the UN Human Rights Council in Geneva. As many as 26 countries have agreed to co-sponsor the resolution, of which 10 are current members of the UNHRC. Sri Lanka is finding itself isolated in terms of human rights in the eyes of the international community which can have costly consequences in terms of reducing the international sympathy and support that the country needs at this time.

The president’s early resort to the security forces to clamp down on the protest movement came as a surprise as his prior track record would have suggested a more nuanced approach to dealing with public agitation. As a follow up to the revocation of the High Security Zones, the president needs to consider revamping government policy on addressing the protest movement. So far the government approach has focused on suppressing the protest movement, on the justification that it will destabilise the economy through strike actions and by chaos on the streets. However, in Sri Lanka’s democratic system a policy of repression is unlikely to be workable. A government that is reluctant to go to the polls must not use the security forces as its prop. The president’s withdrawal of the High Security Zones in Colombo may be understood as an acknowledgement of this reality.

DECLARE AMNESTY

There is general acknowledgement that the President is the most suitable for the task of negotiating with, and making the political case, for more international aid to come to Sri Lanka. During his recent visits to foreign countries he met with top world leaders and would have made his mark. However, it is also important that the president should make his mark on the Sri Lankan people. He needs to win the trust of the people who did not vote for him. Having consolidated himself following his election by parliament to be president, he needs to take a more pro-active role in addressing the roots of the protest movement and not simply quashing its manifestations. There is a need to inform the people what the government will be doing to directly address the terrible impact of the economic crisis on the poorer sections of the population.

There is a widespread sense that those arrested for being members of the protest movement ought not to be subjected to the heavy hand of the law. At the present time, both in Geneva and in Sri Lanka, government spokespersons are denying the severity of the problems that exists. Successive governments denied the excesses that occurred during the war period, both in Geneva and at home. In Sri Lanka the majority of the population were prepared to go along with the denials of war time excesses due to the nature of the ethnic conflict that pitted the ethnic communities against one another. However, a policy of denying the impact of the economic crisis on the poor will not be able to garner similar support from any community in Sri Lanka and will end up pitting the majority of people against the government, just as happened during the height of the Aragalaya.

A declaration of an amnesty for all those accused and arrested for being part of the protest movement would be an act of follow-up statesmanship considering the controversy these arrests are causing both internationally and nationally with the human rights groups and the general public. The ongoing arrests of some who have been part of the protest movement have been justified on the basis that they engaged in violence or supported it. Others are accused of having burnt down the houses of government ministers, including the president’s own ancestral house which contained his family library and valuable works of art. Some have been arrested without being charged before the courts.

Magnanimity, empathy and fairness are very powerful in binding the community together. This is an opportunity for the president to show his empathy with all those others who down the years have lost their own homes to violence, during the two JVP insurrections and during the long period of the ethnic war. The government plans to compensate its members who lost their houses. It needs to also compensate those who lost their lives due to government failure, the most recent being those who died standing in long lines, or when their substandard gas cylinders exploded.

ACCEPT TRUTH

At present, the government is denying the veracity of studies done by international organisations, including UN organisations, on the extent of the malnutrition and stunting that affects children. They are also denying the veracity of claims of corruption in the procurement of fuel and other large contracts, even in the midst of economic crisis. It is also doing little to ameliorate these problems. The government points to the restoration of reasonable supplies of petrol, diesel, cooking gas and electricity which can create an impression of normalcy, but only for those who can afford the much higher prices at which these commodities are available. The government denials of the unequal distribution of the burden will ring hollow with the masses of people, whose support is needed if the government is to govern in a stable political environment.

Instead of denying the existence of problems, the government needs to accept their existence and take measures to address them. This applies to both the problems within the country and that are being discussed internationally. It needs to recognise that its denials have got no traction in Geneva, which is why Sri Lanka has had to face nine resolutions, each one getting more difficult to respond to. The resolution that will be voted on in the UN Human Rights Council later this week will call for greater support for the UN’s evidence gathering mechanism that has already been set up and to provide more support to those countries that pursue universal jurisprudence for crimes committed by Sri Lankan political and military leaders anywhere in the world.

The government needs to use every opportunity it can to seek the support of the international community. With the draft resolution now presented, the eyes of the international community are upon Sri Lanka. While it is too late to change the draft resolution, which will be soon voted on, the government can still seek to restore goodwill among those that are pursuing the resolution on Sri Lanka at the UN Human Rights Council session in Geneva. An amnesty for those who participated in the protest movement could send a positive signal that the government is willing to heed the concerns of the international community regarding human rights and democratic freedoms. The possibility of amnesty to be part of a Truth and Reconciliation Commission in which there is acknowledgment of past violations, expression of regret and accountability for them can also be explored.

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Treaty for a Lost City – inconvenient facts or legal myths?

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By Andrew Sheng
Asia News Netowrk

Is Hong Kong a lost city or being re-born after its baptism of fire? Hong Kong was always a “borrowed place, borrowed time”, to quote the legendary journalist Richard Hughes (1906-1984), immortalised in John Le Carre’s novels on the intersection of media and espionage in cities like Berlin or Istanbul located at the borderlands of great power conflicts. Having returned the city on 1 July 1997, can Britain hold China to the terms and conditions of the 1984 Joint Declaration with China?

Chinese University of Hong Kong Law Professor CL Lim’s book, ” The Sino-British Joint Declaration” is a meticulously researched legal history of how the Joint Declaration came into being and whether it still has the force of law on both parties. There is a presumption that the Joint Declaration granted democratic rights to Hong Kong. The legal story is much more complex. This book draws on the British National Archives and study of the Basic Law of the Hong Kong Special Administrative Region (1990), the International Covenant on Civil and Political Rights (1966) [ICCPR], United Nations Charter, etc., to lay out the facts and opinions for the reader to judge who is right or wrong.

Cities and states are defined by their Constitutions, communal values, geography, cultures and histories. Prior to 1841, Hong Kong was a barren rock that was indisputably part of China. Hong was ceded under the Treaty of Nanjing after the First Opium War (1839-42); but the expiry of the 99 year New Territories lease meant that Britain could not hold onto Hong Kong after 1997. The People’s Republic of China (PRC), following earlier Chinese governments, has never recognised any “unequal treaty” with the Western Powers, but adopted the face-saving principle that “a sovereign may delegate under international law such control or authority to another for a limited period.” Once that sovereignty is resumed, the PRC will not brook any interference in its internal sovereign matters.

This book reads like a series of Queen’s Counsel briefs, densely argued on complex and subtle points presenting different opinions and perspectives. In normal legal disputes, the arbiter would be an independent court, but there is no final decision between China and United Kingdom, which are the five members of the UN Security Council that can veto any rulings at the United Nations level. The only appeal left is to the court of global public opinion, which is today dominated by the English-speaking media. As media today becomes more and more ideologically driven, it is unlikely that deeply held views will be changed by legal or rational arguments.

The genesis of the Joint Declaration was the need to ensure a smooth return of Hong Kong to China. In 1983, when the New Territories lease (covering 92% of Hong Kong) was running out, Britain initially sought to renew the lease, but found that China under Deng Xiaoping was adamant that China would resume sovereignty over Hong Kong. With confidence slipping, the Hong Kong currency was under attack, only to be restored by a peg against the US dollar. This gave impetus to settle the terms and conditions of return. As the book painstakingly pointed out, British negotiators were operating from a weak hand, wanting to retain as much influence and economic benefits as possible post-1997.

As described in Chapter 3, democracy under colonialism was never part of the negotiations. Hong Kong representatives played no part in the discussions between two sovereign powers. The Joint Declaration itself did not mention the word “democracy”. It basically stated that the Hong Kong SAR “will enjoy a high degree of autonomy, except in foreign and defence affairs” (Article 2) and that rights and freedoms will be ensured by Hong Kong SAR law (Article 5). Since the Basic Law, HKSAR’s constitution, is PRC law, the final interpretation falls to the Standing Committee of the National People’s Congress, not necessarily by the Hong Kong Court of Final Appeals.

The real point of dispute lies in the National Security Law, which was passed by the National People’s Congress in 2020, after the Hong Kong legislature was unable to enact Article 23 of the Basic Law. As public disorder arose with violent protests, the practical issue was whether HKSAR government could handle them without a National Security Law. Hong Kong was uniquely handicapped because in every other international financial centre, there exists very draconian national security laws that protect the integrity and security of the financial system, economy and sovereignty. Hong Kong was deeply polarised. No compromise seemed possible, and continued protests and violence would have destroyed Hong Kong. Between a rock and a hard place, the National Security Law was the least painful alternative barring more physical violence.

Treaty on a Lost Place highlighted the absurd situation of two sovereigns signing one piece of paper having different points of view. Such constructive ambiguity papered over destructive alternatives. The last British Governor Chris Patten was successful in persuading some Hongkongers that one man-one vote was what they deserve. Whether that is a cure all for Hong Kong’s ill is another matter. That his Conservative Party leadership was elected opaquely by of British people shows that different systems may not always practice what they preach. Hong Kong elites failed to correct the injustices that many young faced in not providing them affordable homes with meaningful, well paid jobs. Beijing’s mistake perhaps was to trust that Hong Kong could on her own resolve these contradictions within the larger struggle between China and the West on many fronts.

A Treaty is only a piece of paper. A city is not lost to Britain or China, but lost in its own direction, which must be re-found. The answers will not be found in international law, because that is itself being rediscovered in a new age of multipolar contestation. This book is a major contribution to our understanding of how international law is only one of many guides to the future. Hong Kong has to rediscover her own identity inside a larger identity. That is the tragedy and opportunity facing all islands within the grand ocean of mankind.

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