We should perhaps spare a thought for Hong Kong officialdom …  trapped as it is between Beijing’s current directives and the pre-1997 promises Beijing made about post-colonial Hong Kong being allowed to carry on “unchanged for 50 years.”  The promises about existing rights and freedoms were written into Hong Kong’s new Basic Law constitution and spelled out in the unique new “one-country, two-systems” governing design that Beijing offered as a post-1997 guarantee. 

Glowing accounts to the contrary notwithstanding, all is not well with this design 20 years later and one of the most glaring casualties is the language of official political discourse.  This is not about nuances lost in translation from Chinese to English or vice versa.  It’s about Hong Kong officials struggling to transpose and adapt the language of an authoritarian governing system for use here in Hong Kong where the rights and freedoms of the other system were supposed to remain undisturbed. 

The strains are producing some amusing declarations …  amusing, that is, if only they were not so reminiscent of times past when the same kind of Communist Party-led systems were more in vogue.     

Some observers have even begun alluding to the new “Orwellian” tones that have crept into Hong Kong government press releases, and Chief Executive Carrie Lam’s pronouncements, and those of her leading officials …  to say nothing of the official actions they are trying to defend. *  The reference is to George Orwell’s Animal Farm, the 1945 satirical classic about life under an information-controlled totalitarian dictatorship. 

Until recently, attention has been focused on the judges …  and their apparent deference to Beijing authority.   They themselves occasionally remark on the hazards of their profession, standing  as they must along the front line interface between the two incompatible systems …  between Beijing’s Communist Party-led legal regime and Hong Kong’s Western common law tradition.  

The judges seem to be pleading for patience as they maneuver through the legalistic mine fields guarding the “one-country, two-systems” interface.   But judges can take refuge in the formalities of courtroom procedure and legal prose, drafted in the privacy of chambers that are closed to prying public eyes.  Their judgements are also issued months after trials that can be held years after the fact. 

Government officials must stand up on that same front line every day to issue their press releases and answer questions all delivered in the glare of local and international publicity.   With no experience in maneuvering through the mine fields and no built-in sources of procedural protection, Hong Kong officials are showing the strain.  The result during the past year has been a series of poorly-drafted logic-defying statements that are, in effect, claiming black is not black and white is not white.  A few examples illustrate the problem:  official statements  …  and one more judicial review.   

A PLACE WHERE FREE SPEECH IS NOT FREE AND POLITICAL SCREENING IS NOT SCREENING 

Front-line difficulties have increased markedly for officials in the wake of Hong Kong’s 2014 Occupy Central-Umbrella Movement street-blockade protest.   It was provoked by Beijing’s refusal to approve any of Hong Kong’s popular proposals for universal suffrage elections.  The strains have intensified during the past year, along with Beijing’s determination to crush Hong Kong’s hardening post-Occupy defiance. 

At first, people could think Chief Executive Carrie Lam was just being careless with her words.  This happened during the flare-up after Occupy’s founding father Benny Tai attended a forum in Taiwan last March.  He spoke on the future of Hong Kong democracy saying it was just a matter of time before China itself went democratic.  Hong Kongers would then be free to determine their own political fate and consider whether they wanted to become an independent state or participate in the creation of a federated Chinese government, or whatever.  He called this democratic self-determination (April 16, 2018 post).   

Carrie Lam rejected suggestions that official criticism of Tai’s remarks threated the principle of free speech.  She said the two were unrelated.  She said the government must defend China’s national security and its territorial integrity and speech that encourages independence or self-determination is beyond the pale, beyond legal protection.  Such speech is unacceptable because it stands against China’s national constitution and Hong Kong’s Basic Law that derives its authority therefrom (SCMP, Ming Pao, April 7, 2018). 

Back in Hong Kong, Professor Tai defended himself citing the principles of free speech and the freedom of academic discourse.  He said he had published and lectured on such matters in the past without incident.  But officials and pro-Beijing editorials united in declaring the new rules:  “There is no space for so-called academic freedom where it involves so serious and great a political principle as respecting and adhering to the national constitution.  Under ‘one-country, two-systems’ there is no space for so-called academic freedom to allow Hong Kong to violate the national constitution” (Ta Kung Pao, editorial, Apr. 3, 2018). 

A mainland-style public political study exercise followed with Chinese officials holding forth on the new rules.  The Hong Kong government even budgeted an extra HK$5.4 million this year for civil service training in national political education. 

Retired Beijing official Qiao Xiaoyang spent a week in Hong Kong while the spring campaign against Benny Tai was underway.  On April 20, Qiao spoke at a closed-door gathering of 200 civil servants.  He reportedly made the point that advocating independence has nothing to do with free expression because independence is a violation of the Chinese constitution.  Accordingly, Hong Kong is a region under China’s unitary system of government, a principle extending throughout Chinese history.   

Therefore, explained Qiao, Hong Kongers are constitutionally bound to uphold the unitary system of Communist Party rule.  That means no part of the country can aspire to independence or self-determination.  He said that a capitalist economic system would be maintained in Hong Kong.  But it would go against the Chinese constitution to undermine the socialist political system led by the Communist Party (SCMP, April 21, 2018). 

During the summer, the controversy over independence advocate Andy Chan provided many opportunities for officials to practice their new lines.    Soon after the procedures for banning his Hong Kong National Party were announced, the Foreign Correspondents Club invited him to give a talk.   

Acting President Victor Mallet was made to pay the price for what had been a collective Board of Governors’ decision not to bow to official pressure.  Chan’s talk proceeded in the name of free speech amid a barrage of official protest.  And in early October, Mallet was told his work visa had been cancelled.  He is currently on a watchlist, persona non grata, unable to return to Hong Kong even as a tourist. 

Yet free expression and a free press are bedrock Hong Kong core values, intoned Carrie Lam at her October 9 press conference.  The government would continue to safeguard all such rights enshrined in the Basic Law …  except for Hong Kong independence.  It could not be condoned anywhere in any form (Oct. 10, 2018 post).

Given Beijing’s growing resolve, evident throughout the year, pro-democracy politicians might have anticipated that Demosisto’s Agnes Chow and Teacher Lau Siu-lai would be barred from contesting special by-elections in March and November (Jan. 30, 2018 post; Oct. 19, 2018  post). 

The empty seats resulted from the 2016 disqualification of two legislators-elect.  Altogether six were retroactively found to have violated the terms of Basic Law Article 104 on oath-taking and Beijing’s follow-up Interpretation thereof.  The Interpretation specifies sincerity in all pledges of allegiance (Nov. 14, 2016 post).

Initially, no one knew exactly what that meant but now everyone does.  Chow and Lau are both advocates of self-determination and learned the hard way what sincerity in the simple  oath-of-allegiance to the Hong Kong Special Administrative Region  was henceforth going to mean. 

Still, barring Legislative Councilor Eddie Chu from participating in a rural village election next month came as a shock.  The post of representative in a rural community with only about 100 constituents is the lowermost rung on Hong Kong’s ladder of popular representation.  Chu was disqualified not for advocating independence, which he does not, but for advocating self-determination …  Hong Kongers right to determine their own political future with independence as an option (Dec. 13 post, 2018).

The election officer who made the call is a middle-ranking civil servant who has obviously taken his political studies very seriously.  He referenced Chu’s earlier statements on self-determination, dating back to 2016, found them suspect by 2018 standards, and asked Chu to clarify.  Does he or does he not advocate or support the idea that independence can be an option allowed by self-determination?   

Chu refused to disavow the independence option leading the officer to conclude that Chu was “implicitly confirming his support for independence as an option for Hong Kong people, in the name of the so-called right to peaceful advocacy of independence” (Apple, Ming Pao, Wen Wei Po, Dec. 3). 

The struggle of a mid-level civil servant trying to find words to express himself along the two-systems interface does not make for easy reading.  But he was not alone in his effort.    

No sooner had his decision been announced than back-up appeared in the form of an unsigned government press release. It declared there to be “no question of any political censorship, restriction of the freedom of speech or deprivation of the right to stand for elections as alleged by some members of the community’” (Home Affairs Department, Dec. 2, and cited in SCMP.com, Dec. 3, 2018).   “Eddie Chu advocates independence,” proclaimed a pro-Beijing newspaper headline, “his disqualification is not political screening” (Wen Wei Po, Dec. 10, 2018). 

Carrie Lam may have been careless with her words earlier in the year, but by year’s end the same contradictory phrases were being repeated without pause for thought.  They had become a habit, a manner of speech, reinforced by repetition many times over during the months in-between (Aug. 15, 2018 post; Oct. 10, 2018 post).

AND CO-LOCATION IS AUTONOMY:  Another “Cross-Border” Judicial Review 

The question submitted for judicial review concerned the legality of arrangements at the new Hong Kong terminus of the high-speed cross-border rail link.  Its formal name is the Guangzhou-Shenzhen-Hong Kong Express Rail Link or XRL for short 【高 鐡】.   The project has been the target of local protests dating back a decade.   

The final blow, from a concerned Hong Kong Basic Law perspective, was Beijing’s decision to station mainland customs and law enforcement personnel inside the terminal building located in the West Kowloon district of Hong Kong (Nov. 20, 2017 post).

About a quarter of the terminal is reserved for the purpose as a Mainland Port Area where national laws are enforced.  The decision was ostensibly made solely in the interests of speed and convenience, for incoming and outbound travellers.  It is referred to as co-location or two inspections, by mainland and Hong Kong personnel, on the same site 【一 地 兩 檢】.   

But the arrangement also violates the basic principle and promise of Hong Kong’s post-1997 “one-country, two-systems” governing design.  More specifically, it violates Basic Law Article 18 that promises “national laws shall not be applied” in Hong Kong. Opponents argue that the co-location arrangement sets a bad precedent and paves the way for future such intrusions of mainland laws into Hong Kong.   

Opponents also argue more broadly that the railway is just another mainland means of gradually erasing the border and integrating Hong Kong into what officials are enthusiastically lauding as the “macro picture of national development.” 

When all else fails, as in this case all else had failed, concerned citizens apply for judicial reviews.  The request was granted, and a judgement handed down by Hong Kong’s High Court on December 13 ( [2018] HKCFI 2657 ). **     

They needn’t have bothered.  Judicial deference to the executive prevailed and Mr. Justice Anderson Chow Ka-ming ruled in the government’s favor.  He not only held that the co-location rail terminus made good sense in practical terms but also that it did no harm to the Basic Law.  In fact, he seemed to enjoy endorsing the government’s extraordinary argument that the arrangement could be seen as a positive manifestation of Hong Kong’s autonomy. 

Key focus of the arguments was the National People’s Congress Standing Committee’s Decision last year, on Dec. 27, 2017, approving the co-location arrangement (Jan. 10, 2018 post).  Justice Chow held that the NPCSC Decision was an appropriate exercise of the central government’s authority, despite there being no provision for such a decision in Hong Kong’s Basic Law.   It only speaks to the possibility of Interpretation (Article 158) and Amendment the procedures for which are quite elaborate (Article 159).

Chow accepted that under the Chinese Constitution, the NPCSC represents sovereign national authority and can thus decide for itself whether a matter is or is not in compliance with Hong Kong’s Basic Law.  Presumably that means the Basic Law provides no protection for Hong Kong whatsoever except what Beijing chooses to allow. 

He indicated further that he was quite at ease with the evolving nature of the Basic Law’s application as a “living instrument.”   The Basic Law’s provisions should therefore not be treated in a “literal or mechanistic manner.”  He is actually inclined to push flexibility even further by trying to second guess the Basic Law drafters’ original intent, namely, whether such a co-location arrangement might have been “intended to be prohibited.”  

Since the Basic Law’s basic purpose is to maintain the Hong Kong system as a distinct entity, Justice Chow did not think the new mainland port authority was much to worry about.  In any case, such a cross border rail link was not foreseen when the Basic Law was promulgated in 1990, so no one could have anticipated something like the new port authority.  

Hong Kong courts had grown accustomed to treating the Basic Law as a living instrument with the ability to grow and develop over time as needs arose.  He therefore appreciated the government’s disingenuous argument that the creation of the Mainland Port Area, by its very existence within the larger West Kowloon terminus, is actually a “manifestation of the exercise of a high degree of autonomy by Hong Kong and the recognition of two distinct and separate systems being protected in Hong Kong and the Mainland.” 

Peking University law professor Wang Lei came to Hong Kong and gave a public lecture on the subject immediately after Justice Chow’s decision was announced. In his ruling, he had acknowledged and accepted Prof. Wang’s legal advice but stopped short of saying that Hong Kong courts are as bound by NPCSC Decisions as they are by Interpretations.

Prof. Wang says otherwise.  He repeated his legal advice saying the NPCSC is empowered  to supervise how the Chinese Constitution and its derivative Basic Law are implemented.  He said further that such Decisions are binding on Hong Kong (SCMP, Dec. 15).

A year ago when the NPCSC’s Decision on co-location was issued, Hong Kong was told it carried the weight of “nine imperial tripods”【一言九鼎】.  Judge Chow and Professor Wang updated the old saying using less colourful language to explain that indeed, Beijing’s word is the law whatever Hong Kong’s own Basic Law might say.

 

*  Jason Wordie, South China Morning Post Magazine, Dec. 23, 2018; Tim Hamlett, Hong Kong Free Press, Dec. 17, 2018; Nigel Pearson, letter, SCMP, Dec.13, 2018.    

**  https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=119019&currpage=T 

 

 

Posted by Suzanne Pepper on December 28, 2018 

hkfocus2017@gmail.com 

 

 

 

 

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