Posted: Oct. 29, 2015
The flurry of rebuttals was so fast and furious that everyone quickly forgot, or dismissed, what Beijing’s Hong Kong Liaison Office director actually said in his September 12 speech.* The occasion was a seminar sponsored by the Joint Committee for the Promotion of the Basic Law, organized to commemorate the 25th anniversary of the law’s promulgation. Not the most riveting topic, to be sure … until the contents of the speech by Zhang Xiaoming 【張曉明】began to circulate beyond the audience assembled to hear it.
Since Hong Kong’s pro-democracy partisans are finally beginning to confront the 50-year time-limit promised by the Basic Law for a continuation of Hong Kong’s pre-1997 way of life under British rule, and since no one has ever asked Beijing officials about their post-2047 plans, perhaps some clues can be found in Zhang’s message.
To cite some conclusions at the start, there are some clues. Beijing means to implement its definition of autonomy and exert its authority as the sovereign of a one-party state. But if Hong Kong wants to keep the rights and freedoms Hong Kongers originally thought that promise of autonomy guaranteed, they are going to have to raise a hue and cry every step of the way … as the legal community continues to do.
The title of Zhang’s speech was “A Correct Understanding of the Characteristics of the Political System of the Hong Kong Special Administrative Region.” He said his aim was to clarify mistaken ideas about Hong Kong’s unique new post-colonial political system … ideas that allowed some people, for example, to cling still to the wrong-headed notion that the general public should have a say in nominating Chief Executive election candidates.
In fact, rather than correcting ideas that led to such misguided demands, Zhang’s speech only offered another example of how Beijing and pro-democracy partisans are still talking past each other … as if doomed to perpetuate an endless cycle of “one-country, two-systems” rhetoric with Beijing proclaiming its one-system sovereignty and Hong Kong venting its “second system” frustrations.
But if Zhang Xiaoming really meant to explain why it’s wrong to allow Hong Kong voters to have a say in nominating candidates for their Chief Executive within the confines of Chinese sovereignty, then he needs to bring more precision to the argument since his listeners came away none the wiser from his September 12 effort.
What they did hear, however, was a blunt reminder of some well-known truths, namely, that Hong Kong’s autonomy is limited and that Beijing reserves for itself alone the power to make all decisions about how Hong Kong’s system evolves over time. But what Hong Kong listeners also heard is mainland officialdom demanding the deference to which it is accustomed … while lacking the ability either to command it, or to articulate coherent reasons why Hong Kong must obey.
Beijing seems to be having as much trouble trying to govern within the two-systems framework as Hong Kong has experienced trying to live under it …. and therein lies the margin for Hong Kong to maneuver.
STRUGGLING TO EXPLAIN
Zhang began by saying what Hong Kong’s political system is not. It is not now nor will it ever be a system known to the political world as “separation-of-powers.” Yet in elaborating the point, Zhang’s explanation didn’t inspire much confidence. He seemed to indicate that Beijing is still struggling to adapt the principle for use within Beijing’s communist party-led “unitary” state.
He cited the famous statement made by then paramount leader Deng Xiaoping when he met with Hong Kong’s Basic Law Drafting Committee on April 16, 1987. Deng had said Hong Kong’s future system could not be ‘completely westernized’ and it would not be ‘appropriate’ for Hong Kong to copy the separation-of-powers characteristic of the British and American systems.
Hence Zhang said this proved the “non-implementation” of separation was an important guiding principle written into Hong Kong’s Basic Law constitution. Perhaps. But if it’s proven then why protest so much? Maybe because the principle can be seen lurking throughout the Basic Law where it is now creating contradictions that are difficult to reconcile with the precepts of Beijing’s communist party rule
He went on to say that just because Hong Kong’s government has executive, legislative, and judicial branches that function separately with built-in checks and balances … that doesn’t mean what they do should be called separation-of-powers. By that standard, he said defensively, very few places in the world are actually implementing such a system. Anyway, separation-of-powers is normally based on a sovereign state, which Hong Kong is not.
Even more contradictory was his deference to Hong Kong’s independent judiciary. Past official statements have raised cries of protest here in its defense … as when someone suggested the judiciary should cooperate with the executive and that judges were something like administrators. Evidently trying to preempt the uproar those kinds of off-hand comments provoked, Zhang’s statement actually contained rare unqualified deference to judicial independence.
He said “executive and legislative powers restrict and cooperate with each other and the judiciary is independent.” The Chinese sentence was as clear on this point as the English translation. He also noted that Article 19 of the Basic Law grants judicial independence, and Article 85 says the courts shall exercise judicial power independently, free from interference.
His only contrary note was that the Chief Executive “links up” with the judiciary. Specifically, the Chief Executive appoints some people to a committee that recommends judges. Of course, considering what such “politically correct” Chief Executive appointments can mean for the universities’ governing councils, this executive-judicial link can have a significant impact (Oct. 2 post ; Aug. 31 post ). But reading between the lines, and all things considered, Mr. Justice Li’s confidence in the long-term survival of judicial independence may not be entirely misplaced after all (Oct. 26 post ).
A TRANSCENDENT CHIEF EXECUTIVE
Unfortunately, there is nothing noteworthy to report about the executive branch except for Zhang’s strange new way of describing it … as transcendent 【超然】. So what to make of his long soliloquy on the overriding powers of the Chief Executive? Why belabor what has been explained many times before?
Perhaps, given the past two years’ controversy over Chief Executive election methods, he was trying to explain why Beijing thinks the general public should not be allowed to vote its preferences. But he didn’t say that. What he did say was that Hong Kong’s Chief Executive stands as the pivotal link now binding Hong Kong irrevocably to Beijing’s one-system unitary sovereign power.
Otherwise, except for the transcendent emphasis, Zhang only reiterated standard points. What kind of political system does Hong Kong have if it’s not separation-of-powers? Hong Kong’s system is executive-led under the direct jurisdiction of the central government. Nothing new there.
Hong Kong is a local administration within the unitary Chinese state. That means Hong Kong’s promised “high degree of autonomy” is “subject to the authority of the central government, which has the power to decide the setting up of government institutions and their inter-relationships, as well as the development of the political system, including a universal suffrage system.”
The original Basic Law source of Beijing’s authority doesn’t actually spell all that out in so many words, but Beijing’s decisions and directives have been coming down for the past decade and formed the basis of the entire electoral reform process so the points are well known.
Nevertheless, Zhang felt the need to emphasize that the Chief Executive holds the core “pivotal” position within Hong Kong’s political system since the central government does not directly manage Hong Kong affairs but governs instead through the Chief Executive. That makes the Chief Executive more than just a member of the Hong Kong administration and the executive’s powers are not limited to leading its government. The position has a double identity and dual responsibilities thereby giving it a “special legal status that transcends” the executive, legislature, and judiciary of the HK government alone.
What this argument really seems to be targeting are the ideas about Hong Kong localism, city-state autonomy, and so on. Beijing seems to have taken too literally all its accusations about Hong Kong’s pro-democracy movement demanding “independence.” Because Zhang’s comments seem to be primarily a reiteration of the limitations on Hong Kong autonomy underscored by its unbreakable ties to Beijing. The reminders run throughout Zhang’s speech, repeated at every point even when they serve little purpose as when separation-of-powers is identified as a luxury of sovereign states.
But of course, there is no “independence” movement in Hong Kong … except for those demanding more guarantees for the local autonomy they thought Hong Kong had been promised. Zhang’s speech seems yet another instance of the two sides talking past each other because they are talking about two different variations on the same theme … not two different themes. Hong Kong sees autonomy as the only guarantee of its rights and freedoms. Beijing sees Hong Kong autonomy as a threat to unitary one-party rule. The margin for maneuver lies in-between for those with the patience to persist.
Posted by Suzanne Pepper on October 29, 2015.