Posted:  Jan. 5, 2015

 

Beijing officials are responding to Hong Kong’s upsurge of protest against its strict electoral reform ultimatum with stern warnings about the need for serious reflection and re-enlightenment.  It seems Hong Kong misread and misunderstood the promises made in 1997 about retaining rights and freedoms for 50 years, and allowing a high degree of local autonomy.  It also seems that “foreign forces” are to blame for putting such misguided ideas in Hong Kong heads.

The warnings began over a year ago although at the time no one realized a major course correction was underway.  The Chinese Association of Hong Kong and Macau Studies was set up in late 2013, to serve as a new publicity platform for Beijing’s message.  This association sponsored the December 14 Shenzhen lectures where the word “re-enlightenment” was added to Hong Kong’s political vocabulary (Dec. 22 post).  The strongly-worded White Paper policy statement was issued last summer, but only provoked more resistance, not acceptance (June 12, 2014 post).

Now, in the wake of Hong Kong’s big Umbrella/Occupy movement, Beijing’s official words are more blunt.  The message is being conveyed in two ways.  One is a simple matter of words and phrases.  The comforting old pre-1997 slogans don’t really mean that existing rights and freedoms as of 1997, will remain “unchanged for 50 years.”   And the “high degree of autonomy” with “Hong Kong people ruling Hong Kong” just means that local people can run local matters as authorized by Beijing (Dec. 22, 30 posts).

But playing with words is one thing.   Those same promises were also written into the legal documents that defined the terms of Britain’s departure in 1997, and how Hong Kong would be governed for 50 years thereafter.  Beijing is nevertheless proceeding on this more difficult dimension as well and in fact has been doing so since 2003.

The main documents were the Basic Law and the Sino-British Joint Declaration on the Question of Hong Kong.  The latter was signed by both the Chinese and British governments in 1984.  Both agreed it could be given international treaty status, seen as a further safeguard in Hong Kong eyes, and it was registered as such at the United Nations in June 1985.  Hong Kong’s Basic Law spelled out how the territory was to be governed, 1997-2047.  It was drafted by Beijing in the late 1980s and promulgated in 1990.

THE TREATY

Chinese officials are now taking great exception to the British Parliament’s current hearings on Hong Kong governance and implementation of the Joint Declaration.  The inquiry was prompted by growing dissent here over electoral reform and by Beijing’s official policy White Paper statement issued last June.  Direct lobbying efforts in London by Beijing’s favorite villains … veteran democrat Martin Lee and latter-day convert to the cause Anson Chan … heightened tensions further.

Despite long-standing claims and assumptions to the contrary, Beijing is now arguing that Britain has no legal right to “meddle” in this way.  In early December, Beijing began making a big issue of Britain’s continuing “intervention” in Hong Kong affairs (Wen Wei Po, Dec. 4).  Chinese officials and editorial writers are telling the British in no uncertain terms to butt out.  Post-1997 Hong Kong is no longer any business of theirs.

Beijing even barred the British parliamentarians from entering Hong Kong as planned in mid-December so they had to interview local witnesses via video link.   Officials have spent the past month insisting that since Britain has no residual sovereignty and no jurisdiction over Hong Kong, London can claim no right or moral obligation to monitor events here.  Hence British lawmakers have no need to conduct such an inquiry.

The Joint Declaration, aiming to ensure a smooth transition across the 1997 divide, spelled out all the promises that were intended to put Hong Kong hearts at ease.  Chinese officials have now begun emphasizing, correctly, that the promises were written into the Declaration on Beijing’s authority alone.  Only now, for the first time, that argument is being used as a reason to deny London’s right to ascertain whether the promises are being fulfilled.

New language for old facts.  Hong Kong’s constitutional affairs minister, Raymond Tam Chi-yuen repeated the message in a statement to Hong Kong Legislative Councilors and went even further.  Britain has no residual sovereignty, no jurisdiction, and no moral obligation to monitor its implementation as a party to the 1984 Joint Declaration.  In fact, he continued, the Joint Declaration had fulfilled its “historical mission” as of 1997 and therefore no longer signifies in any way.  It is now a dead letter, spent, voided …   (Wen Wei Po, Ta Kung Pao, Ming Pao, all Dec. 18).

Perhaps London would just as soon be relieved of the responsibility but too many people are still alive who remember the promises London made and the cries of “perfidious Albion” that pursued British negotiators in the 1980s for “selling out Hong Kong.” 

Responding to the current controversy, Britain has just declassified relevant files held in the National Archives.  They confirm what Hong Kong leaders present at the time recall, including the pledge by then British Prime Minister Margaret Thatcher to protest if Beijing ever breached the terms of the Joint Declaration (South China Morning Post, Dec. 30).  The files contain a December 1984 note from the Foreign and Commonwealth Office on the just-signed Joint Declaration claiming that “Britain has the right to raise any breaches with China after 1997.  We would not hesitate to do so,” …  which is essentially what the current parliamentary inquiry is about.

In fact, Article 7 of the Joint Declaration, signed by both parties, says the governments of both Britain and China “agree to implement the preceding declarations and the Annexes to this Joint Declaration.”  Article 8 says, “this Joint Declaration and its Annexes shall be equally binding.”  The Annexes include a long elaboration by Beijing alone, of the 12-point promise it had made in the Declaration itself … all on its own authority, to be sure.  But the promises included the 50 years without change and high degree of autonomy, with Hong Kong inhabitants at the helm, and were supposed to be equally binding on both parties to the Joint Declaration.            

Key to the misreading and misunderstanding is the time frame.  Evidently a lot of people in Hong Kong and in Britain thought the 50-year promise meant good until 2047.  Whatever it may have thought then, Beijing is now saying the cutoff date, at least for British oversight, was 1997.   

Of course, how could London know as of midnight on June 30, 1997, whether Beijing would fulfill its promises to Hong Kong or not?  They hadn’t begun to be implemented yet … even if they had been written into the Basic Law that went into effect the next day.

THE LAW

The Basic Law lends itself to far more misunderstandings because its loopholes and grey areas are legion.  Hong Kong’s last British governor, Christopher Patten, exploited some of them for his last ditch political reform drive that so angered Beijing.  But Beijing, for its part, has now made “adjustments” so substantial that the Basic Law might as well have been formally amended to accommodate them … except that an amendment probably would not have been possible due to the continuing threat of a Legislative Council (Legco) veto by pro-democracy partisans.  They still hold just over a third of the seats that are needed to defeat Basic Law amendments (according to the BL, art. 159).

Instead, the changes have been imposed by fiat …  decisions and interpretations handed down on the authority of the Standing Committee of the National People’s Congress (SC/NPC), thereby adding to Hong Kong’s sense of grievance.

The Nominating Committee Maneuver.  One such exercise has been a major source of debate and controversy here throughout the past year.  The ambiguity concerns the continuing status of the conservatively-designed Election Committee that the Basic Law, Annex I, says must elect Hong Kong’s Chief Executive.  But it leaves open what to do when the promised “universal suffrage” reform kicks in. 

Beijing has now orchestrated this process in such a way that the old Election Committee is to become the new Nominating Committee for Hong Kong’s first universal suffrage election in 2017.   Voters will be able only to endorse the committee’s choices after Beijing’s prior behind-the-scenes vetting.  Doubly safe from Beijing’s perspective.  Even if a pro-democracy hopeful manages to make it through the preliminaries, Beijing could spike his/her candidacy and the compliant Nominating Committee can be relied upon to do its duty.

Beijing legalized this maneuver via:  (1) a 2007 SC/NPC decision that said the new Nominating Committee should be formed “with reference to” the old Basic Law Annex I-mandated Election Committee; and (2) an explanation in the Hong Kong government’s formal consultation document that said the phrase “with reference to” is binding in mainland law.

Hence when Beijing’s final August 31 decision was issued by the SC/NPC last summer, the old Election Committee became the new Nominating Committee!  This despite the reassurances of the Basic Law’s Article 18 that says national laws “shall not be applied’ in Hong Kong (Feb. 14, 2014 post).

The Legco Election Reform Maneuver.  Article 68 of the Basic Law seems clear enough. It says the “ultimate aim” is the election of “all” Legislative Councilors “by universal suffrage.”  Annex II is also clear in outlining methods for electing legislators for the first post-1997 decade.  After that, Annex II says “… if there is a need to amend the provisions of this Annex, such amendments must be made with the endorsement of a two-thirds majority of all members of the Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People’s Congress for the record.”

The phrase “for the record” is supposed to mean just that:  not for approval but just to record the fact.  This same intention was articulated by Chinese officials on more than one occasion before 1997.  

The British had raised a related point about future Legco elections soon after the Basic Law was promulgated and received a straightforward answer:  electing all Legco members by universal suffrage “is a question to be decided by the Hong Kong SAR (Special Administrative Region) itself and it needs no guarantee by the Chinese Government.” *   Beijing official Lu ping made a similar statement:  “How Hong Kong develops democracy in the future is a matter entirely within the sphere of Hong Kong’s autonomy, and the central government cannot intervene.” **    

The matter didn’t become an issue again until a decade later when Beijing was trying to digest the unexpectedly massive resistance to national security legislation as mandated by the Basic Law’s Article 23.   An estimated half-million angry residents turned out to march on July 1, 2003.  In its wake, many things changed including the onset of Beijing’s more direct and active interest in Hong Kong’s political development.

Perhaps Beijing’s most significant intervention was the April 2004 SC/NPC “interpretation” of the Basic Law’s Annex II on Legco election reform.  This changed by 180 degrees the official promises about Hong Kong’s autonomy in decision-making on the matter.  In that interpretation, Beijing announced that it must first approve such reform proposals before they could move along the winding path that has come to be known as the “five steps.”  This is the procedure now underway here for the 2016/17 election cycle.

Not surprising then that despite long-standing and widespread public demands for the abolition of the special-interest Functional Constituency half of Legco, Beijing’s August 31 SC/NPC decision decreed no change for the coming 2016 Legco election.   This is the lesser of the two main issues that provoked the Umbrella/Occupy movement.  The main issue was Beijing’s insistence on maintaining the old Election Committee format and other restrictions for the 2017 Chief Executive election.

So if Hong Kongers misread the terms of their return to China and the nature of Beijing’s pre-1997 promises, Beijing needs to accept its share of responsibility for the misunderstanding.  That would include, among other things, reneging on its 1990s promises to let Hong Kong make its own decisions on Legco election reform.  The “one-country, two-systems” policy remains intact as Chinese officials keep insisting.  It’s just that what it means in practice is going to be very different than originally advertised.

* Ministry of Foreign Affairs, PRC, “Facts about a Few Important Aspects of Sino-British Talks on 1994/95 Electoral Arrangement in Hong Kong,” China Daily, March 1, 1994.    

**  Renmin ribao, haiwaiban (People’s Daily, Overseas Edition), Beijing, March 18, 1993.

 

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