Posted:  Dec. 10, 2012


Finally, pro-democracy politicians and opinion leaders here are beginning to realize what pro-Beijing partisans have known all along:  the much-proclaimed “one-country, two-systems” design that eased Hong Kong’s 1997 transition from British to Chinese rule is itself transitional.  Everyone has always accepted that the design had a 50-year shelf-life since the termination date for Hong Kong’s “capitalist system and way of life” was written into Article 5 of the transitional Basic Law constitution.  Hence no one has ever argued with the idea that eventually two systems would become one.  But probably because Hong Kong’s way of life is still largely unchanged, and also because of the assumption here and everywhere that China would become more like Hong Kong rather than vice versa … so everyone just assumed the future would take care of itself on Hong Kong’s terms.

No one foresaw that China’s economy could master the secrets of capitalist success while the political system remained essentially frozen in time.  Now everyone can see and the implications are becoming clearer by the day.  Some are saying the just-concluded 18th Party Congress will mark the watershed but for Hong Kong that point was reached long ago.  In fact, the differences being registered now are the cumulative effect of gradual changes ongoing since 1997.  At each step along the way, Hong Kongers have instinctively pushed back on many improvised fronts and Beijing has responded in kind … until now, 15 years on, a clear state of confrontation has finally emerged.  Instead of the polite platitudes and deference to the “unique” one-country, two-systems experiment,  Beijing representatives have begun speaking out more bluntly.   So have Hong Kong’s pro-democracy political leaders who can now be heard admitting, in public, that the autonomy they had learned to take for granted is “under threat.”


          Tensions have been rising all year bolstered initially by what might be called life-style issues:  thousands of expectant mainland mothers taking advantage of Hong Kong’s birthright law and filling local maternity wards to over-capacity; crowds of cross-border tourists and traders transforming shopping patterns both up market and down; well-heeled mainland buyers pushing up property prices, and so on.  But during the summer, a subtle shift in public focus occurred:  from economic and social disruptions to something more serious for the Hong Kong-mainland relationship, namely, concerns about the “way of political life.”

Perhaps the changing emphasis should be dated from the July First inauguration of a new (pro-Beijing loyalist) Chief Executive who was and still is widely assumed to be a communist party member.  But of more urgent concern was the new national education curriculum that would have introduced compulsory mainland-style political study for all students here, grades one through 12, beginning in the fall semester (July 31 post).   The massive improvised protest then merged with the September Legislative Council election campaign that culminated in a dramatic government climb-down on Election Eve.

Yet pan-democrats still failed to acknowledge where the greatest danger lay (in the well-organized richly-endowed forces of the pro-Beijing opposition) and carried on electioneering in their usual faction-ridden wasteful way.  As a result, they essentially squandered what may have been their last chance to increase representation in the Legislative Council (Sept. 13, 18 posts).  The Civic Party did use “resist mainland-iztion” as its main campaign theme but as usual failed to explain or specify, leaving voters to guess what the awkward term was meant to imply beyond the social and economic disruptions.

Soon afterward, however, pan-democrats finally began filling in some of the political blanks.  Who was responsible for thinking up the idea remains unclear but by late September, “everyone” was talking about the “four great tasks.”  It was said that Beijing had given the new Chief Executive, Leung Chun-ying, four tasks to complete.  Once he had accomplished his mission, Hong Kong would be on course for full political integration and one-country, two-systems would be a fast-receding memory.

The four tasks:  (1) fulfilling the Basic Law’s Article 23 mandate to pass national political security legislation prohibiting treason, secession, sedition, subversion, theft of state secrets, and foreign political interference; (2) implementing political reform to achieve universal suffrage on Beijing’s terms; (3) introducing the national political education curriculum; and (4) ending the independence of Hong Kong’s government broadcaster Radio Television Hong Kong.

Officials naturally denied that Chief Executive Leung had been given any such assignment.  But as everyone here knows well, the four tasks would already have become accomplished fact had the community not persisted in its decade-long effort to keep them at bay.  The struggles have continued since 2002 when the government’s Article 23 legislation was first introduced.  The indirect people’s congress-style election reform proposal dates from 2005.  National education has been in the works for years, and pressures on RTHK are ongoing.  None of the four has been either resolved or abandoned, so the allegation didn’t need to be proved to be believed.


         Meanwhile, the growing mood of mutual recrimination and resistance has been reinforced by some much talked-about statements from prominent mainlanders and Hong Kong loyalists.  Two stand out for the importance of the added pressures they anticipate beyond the four great tasks.  The first came from Elsie Leung Oi-sie [ 梁愛詩] and concerned Hong Kong’s so-far unassailable independent judiciary.  It seems to be a major source of chagrin in Beijing where officials are constantly grumbling and her arguments explain why.

Leung was Hong Kong’s first post-1997 Secretary for Justice and built a reputation for fairness during her 1997-2005 tenure in office.   But she is from a traditional loyalist family, was a founding member of the main pro-Beijing political party in the early 1990s, has remained true to the cause, and controversies about her pro-Beijing bias have continued throughout.   Now she is at the center of another.  This latest began with a talk on “Legal Challenges Since Reunification” that she gave at Hong Kong’s College of Technology on October 6.

The chief talking point ever since has been her main argument, namely, that Hong Kong  judges don’t understand the Basic Law or at least Hong Kong’s relationship to the central government as spelled out therein.  At issue is their disagreement over Beijing’s authority to interpret the Basic law and local judgments.  This specific controversy dates back to 1999, when all the judges on Hong Kong’s highest appeals court considered resigning in protest due to a Beijing decision that overturned one of their judgments.  The issue has been revived again by the recommendation she and others have made concerning the Basic Law’s Article 24 on birthrights.  She argues that the best way to solve the problem of expectant mainland women coming to Hong Kong to give birth is to close the loophole in Article 24 by sending it to Beijing for repairs.   This idea flies in the face of what Hong Kong values most, namely, an independent judiciary insulated from Beijing’s political interference.

          The Bar Association and Law Society both issued statements protesting her apparent attempt to interfere with Hong Kong’s judicial autonomy.    Kemal Bokhary, one of the justices who had contemplated resigning a decade ago, issued a mighty blast declaring that a “storm of unprecedented ferocity” was gathering over the rule of law in Hong Kong.  Bokhary, reputedly the most liberal and dissident judge on the Court of Final Appeal, has just been summarily removed from the bench upon reaching formal retirement age (although his replacement is older than he is).

Bokhary is Hong Kong-born, of Pakistani descent, but has retained his British citizenship.   And while this controversy was brewing in Hong Kong, Beijing Basic Law authority Professor Cheng Jie [程潔] presented a paper there advocating the reform of Hong Kong’s final appeals court.  Her proposal included a ban on non-Chinese judges.  Bokhary nevertheless refuses to recant and has issued several public statements repeating his concerns.  He says Hong Kong must remain alert and on guard if it wants to preserve judicial autonomy and the rule of law.

The scene then shifted to the Legislative Council where the Justice and Legal Services Panel invited Elsie Leung to attend its November 27 meeting for an exchange of views.  She declined citing 1950s McCarthyism in the United States, and suggesting that “some” Legco members were bent on using her in their anti-communist crusades.  She did, however, issue a lengthy written statement to the panel, and to the press, in which she lectured Hong Kong on its Basic Law misconceptions.  The central government’s power is not just confined to defense and foreign affairs as popularly thought, she wrote.  Also, the much-proclaimed “50-years-without-change” slogan (that Beijing promoted and Hong Kongers clung to for comfort in the 1990s), referred only to the “fundamental policies” of the central government toward Hong Kong, not everything (Wen Wei Po, China Daily, Nov. 27).*

Midway through the controversy, retired judge Andrew Li Kwok-nang [李囯能]volunteered the most useful opinion of all.  Li served as Chief Justice of the Court of Final Appeal from 1997 to 2010.   He said Hong Kong shouldn’t wait until 2047 to confront the future of its rights and freedoms under the one-country, two-systems construct.  The way things were going, its contradictions should be openly addressed and resolved by 2030 latest (Ming Pao Daily, South China Morning Post, Nov. 9).


        Even 2030 will be too late if Zhang Xiaoming’s [張曉明] contribution is any guide. Zhang is deputy head of the central government’s Hong Kong and Macau Affairs Office and his lengthy article on the implications for Hong Kong of the 18th Party Congress (Nov. 23 post) was the second important statement to set alarm bells ringing here.   The essay, “Enriching the Practice of One-Country, Two-Systems,” was printed in full in the pro-Beijing press (Wen Wei Po, Nov. 22) and intended for political study.  One reason Hong Kongers have been so slow on the uptake about Beijing’s long term plans is that only the loyalist community takes such study materials seriously enough to read them.  Zhang’s effort generated wider attention on two counts especially.

One was the way he described the need for “timely” passage of national security legislation as mandated by Article 23 of the Basic Law.  During the Hong Kong government’s abortive 2002-03 attempt to pass this legislation, it was presented as a few harmless revisions in Hong Kong’s existing laws on such matters.  But like the local loyalists who are now accusing Hong Kong’s new autonomy movement protesters of high treason (Nov. 23 post),  Zhang Xiaoming also used Beijing-style definitions to advocate passage of Beijing-style political security laws …  just as Macau has already done, he wrote.   Macau’s 2009 legislation is a “lighter” carbon copy version of China’s national security law (Feb. 17, 2009 post), whereas Hong Kong’s 2003 proposals sought to adapt existing local ordinances for the purpose.

Elaborating on the meaning of one-country, two-systems, Zhang wrote that the “most basic” aspect of the one-country principle was “to protect national sovereignty, security, and development interests.”  That was why both Hong Kong and Macau’s Basic Laws contained the Article 23 mandate.  Macau did its duty in 2009. Hong Kong must do likewise in a “timely” fashion.  This is because expressions [言論] about popular referendums and self-governing autonomy are circulating in the community and because they violate the one-country principle.   So Article 23 legislation is intended to limit freedom of political expression after all.  In 2003, we were given to understand otherwise.

Toward the end of his essay, Zhang also wrote that “foreign forces” were constantly at work trying to influence pan-democrats.  But that has become a routine complaint and seems to have been added as an afterthought since it logically belongs with the other Article 23 national security concerns.  What was not an afterthought was his second most provocative point, namely, that the Basic Law’s executive and legislative provisions must also be implemented more rigorously.  These include:  the Chief  Executive’s responsibility to report to Beijing as his ultimate authority; the central government’s responsibility for appointing all of Hong Kong’s top officials; and Beijing’s right to scrutinize local legislation.  “Systems and mechanisms must be perfected” in all these respects, wrote Zhang.

Obviously, the “enriched” one-country, two-systems formula, 15 years later, is a far cry from its 1997 ideal.  But now that demarcation lines are clearly shifting and autonomy is in retreat, the community can at least begin to think more realistically about how best to protect what it values most.

* Dec. 13 update:   After saying repeatedly that referral to Beijing was the option of last resort, the Hong Kong government has changed its mind in favor of Elsie Leung’s suggestion.  The government has therefore just requested that Hong Kong’s Court of Final Appeal request Beijing to issue an interpretation both on the birthrights issue and also on the right of domestic servants to apply for permanent residency.  Leung is currently a vice-chair of the Beijing-appointed Basic Law Committee that reflects official Beijing thinking on matters related to implementation of the Basic Law.  … MAJOR issue … calculated to boost turnout for the annual January First New Year’s Day protest march …

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