Posted:  Oct. 26, 2015

 

The new thoughts are not necessarily all new and not necessarily coming from the people most active in last year’s Occupy Central protest movement over the demand for universal suffrage elections. But those 79 days when protesters blocked Hong Kong streets have become a political benchmark for calculating “before” and “after” Occupy … and what’s coming after seems increasingly like an end to the “age of innocence.”

Before, it was still possible for democracy campaigners to carry on with their original belief that as long as they kept working at it, Western-style democracy would eventually prevail here in tandem with a reform-minded democratizing China.

That easy-going optimism, dating back to the 1990s, seemed to be what kept everyone from thinking ahead beyond the 50-year guarantee that Beijing officials wrote into all their promises for a post-colonial continuation of Hong Kong’s way of life after the British left in 1997.

That assumption also seems to explain pan-democrats’ most exasperating habit, namely, their failure to demand definitions whenever Beijing talked about electoral reform. Somehow, it would all work out in the end, the end being 2047. But Hong Kong’s new Basic Law constitution that went into effect in 1997 doesn’t say anything about 2047. Article 5 only promises that Hong Kong’s “way of life” can remain unchanged for 50 years. Meanwhile, changes in Hong Kong’s way of political life are in a state of perpetual evolution … without anyone ever specifying toward what end: dictatorship or democracy?

Now … after two years’ continuous debate over Beijing’s long-delayed promise for a universal suffrage Chief Executive election, and after Beijing rejected every proposal Hong Kongers contributed to the debate … now, finally, more realistic perspectives have begun to set in.

Occupy marked the change because its organizers had just assumed, in their old easy-going idealistic way, that the mere threat to occupy downtown city streets for a few days would convince Beijing of the need to accommodate local aspirations. Occupy initiator Benny Tai Yiu-ting later said as much and was left without a backup plan when Beijing ignored his threat. Major thoroughfares remained blocked for 79 days while Beijing insisted that only a mainland-style communist party-managed election would do. And Beijing refused to budge even as all of Hong Kong’s pro-democracy legislators, for once, stood united and prepared to veto Beijing’s proposal, which they did on June 18.

During the months since, Beijing has remained adamant. But Hong Kong democrats have begun to move on … from their old it-will-all-work-out-in-the-end optimism to a more realistic understanding of the challenges they need to confront if they are ever to succeed.

FORWARD THINKING: 2047

Teenage activist Joshua Wong Chi-fung is where he should be: at the forefront of this new realism (Aug. 13 post ). But so are some old establishment types. They, too, have finally begun talking about the implications of 2047. Two who have recently spoken out are retirees Andrew Li Kwok-nang 【李國能】and Grenville Cross.

Andrew Li is a retired judge and Hong Kong’s former Chief Justice who presided over its Court of Final Appeal from 1997 to 2010. He has spoken before on the need to prepare ahead of time for the legal challenges 2047 will present. But he has never gone into detail, at least not in public. This time, he did.

The context and provocation was that controversial speech made by Beijing’s Hong Kong Liaison Office Director, Zhang Xiao-ming 【張曉明】last month. In his speech Director Zhang set out to clarify what he called some wrong notions about Hong Kong’s relationship with Beijing (Sept. 21 post ).

He made the same points, more bluntly, that Beijing has been trying to get across throughout the past two years … in its vain effort to contain Hong Kong demands for “genuine” universal suffrage elections. Zhang reiterated that Hong Kong’s government is executive-led and the separation-of-powers … between the executive, legislative, and judicial branches … is not part of Hong Kong’s governing structure because Hong Kong is not a sovereign state.*

Rebuttals from Hong Kong have continued ever since but the most forceful have come from within the legal community since judicial independence is Hong Kong’s proudest and most valued source of the autonomy that Beijing promised before 1997. Among the features of this independence is the practice, permitted by Beijing, of allowing foreign non-Chinese judges to sit on Hong Kong’s Court of Final Appeal.

The court has five judges, one of whom can be from a British Commonwealth jurisdiction. Legal commentators in Beijing have begun speaking out against this practice as an infringement of China’s sovereignty and suggesting that it should end in 2047. Judge Li argued otherwise in a lengthy comment published simultaneously in English and Chinese (Sept. 25: South China Morning Post, Ming Pao)

He went on to note that the Basic Law has no sunset clause. It only states that the previous capitalist system and way of life shall remain unchanged for 50 years (Article 5), without indicating what’s supposed to happen afterward.

His closely-argued legal points then phased into something more creative when he reasoned that since the “one-country, two-systems” formula has already become an integral part of Chinese sovereignty, therefore the formula that allows Hong Kong to have its own system within the one country should be able to continue on into the sunset. Nice try. But best prepare some more arguments for use as backup if this one doesn’t initially register with Beijing.

Li suggested that as long as Chinese sovereignty continues to be respected he has “every confidence and expectation that Hong Kong as part of China will continue to enjoy our own system and that the rule of law with an independent judiciary will continue to thrive in the coming years and beyond 2047.”

Grenville Cross was post-1997 Hong Kong’s first Director of Public Prosecutions, a position he held from 1997 to 2009. He is currently an honorary law professor at the University of Hong Kong and the prosecutor has turned to advocacy. Since his retirement, he has argued repeatedly for a reform of the public prosecutor’s office and he has now begun making his argument in the context of 2047.

During a recent television interview, he said that Hong Kong should adapt the British reform that recognizes the need to separate politics from prosecutions. In Hong Kong, the Secretary for Justice wears two hats since he is both a government minister and also the chief prosecutor. But the Secretary for Justice is a political appointee. He reports to the Chief Executive and like all leading government officials, including the Chief Executive, the justice secretary’s appointment must be substantively approved by Beijing. Beijing decides who can and cannot fill the post.

Cross said that government officials should have no role in deciding who to prosecute. If the Director of Public Prosecutions could be independent, it would reduce the appearance of conflicting political/prosecutorial roles, which would promote public confidence in the administrative of justice.

He also said the sooner-the-better for introducing such a reform. If Hong Kong’s Director of Public Prosecutions could become independent pre-2047, there would be greater likelihood of maintaining a strong independent prosecution service run by legal professionals post-2047 (TVB, Straight Talk, Oct. 13).

FROM MODERATION TO RESISTANCE

An equally striking case of the outspoken new realism is university academic Brian Fong Chi-hang 【方志恒】. He and his friends spent the summer reading and writing and have just published a volume of essays, in Chinese, to explain their frame of mind (SCMP, Oct. 14). **

Fong was among the group of 18 moderates who drew up a reform proposal of their own for the 2017 Chief Executive election. It was their contribution to the government’s political reform consultation exercise last year. They accepted Beijing’s aversion to the popular or public nomination idea that carried the day with Occupy activists.

In contrast, the 18 moderates proposed public recommendation of Chief Executive candidates, via a signature campaign, plus endorsement by the existing conservative Nominating Committee. They were even given what they thought was a nod of encouragement from the powers that be (April 1, 2014 post).  All in vain. Beijing rejected everyone’s proposals whether “radical” or moderate and insisted that only its own Beijing-vetted nomination method would do.

Beijing’s summary rejection of even such moderate proposals made matters worse because it raised the added point that the Hong Kong government’s elaborate expensive consultation procedures were just for show.  The public had responded in good faith to what was evidently a sham exercise all along.

Fong’s moderation actually goes all the way back to 2010 when he was a member of the moderate brain trust, Alliance for Universal Suffrage, that stood behind Albert Ho’s controversial compromise on a minor Legislative Council election reform plan.

Fong and others have since said, in their defense, that they thought the 2010 compromise would set a precedent for future accommodation with Beijing and for ongoing progress toward reform.

Instead, it led nowhere. Their only reward was Beijing’s intransigence over the 2017 Chief Executive election reform proposals that marked the next phase of Hong Kong’s political reform project after 2010.

Hence Fong and his friends are now taking that intransigence as a signal that pro-democracy campaigners must be more deliberate and specific, and never let down their guard. They need to state their goals and reasons every step of the way over every issue if they are ever to succeed in achieving the kind of political autonomy they thought Hong Kong had originally been promised.

Fong’s new tone of defiance has earned him an immediate loyalist blast in return (Ming Pao, Oct. 7 and Ta Kung Pao, Oct. 12). But Hong Kong’s response for now, says Fong, should be resistance not more unfocused attempts at dialogue with Beijing.

 

* http://www.scmp.com/news/hong-kong/politics/article/1858484/zhang-xiaomings-controversial-speech-hong-kong-governance

** Brian Fong Chi-hang 【方志恒】,  ed., 香港革新論 (Reforming Hong Kong), Taipei, 2015.

 

hkfocus2017@gmail.com

Posted by Suzanne Pepper on Oct. 26, 2015.

 

 

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