(Note: This article was originally posted by Hong Kong Free Press on May 24, 2020, under the title “Hong Kong’s ‘High Degree of Autonomy’ Wilts Under New Version of Basic Law”)
Responding to the controversy over a critical blast from Beijing aimed at Hong Kong’s pro-democracy legislators, Teresa Cheng added to the controversy. She heads Hong Kong’s Justice Department and agreed with other officials. Since the central government had supervisory power over Hong Kong, Beijing’s sudden intrusion into the work of its Legislative Council last month was entirely appropriate.
She advised that in seeking to understand Beijing’s new activism, one must not be distracted by Article 22 of Hong Kong’s Basic Law but look instead to Article 12. Article 22 contains one of many promises in the Basic Law that was written to serve as Hong Kong’s constitution after its 1997 return to Chinese rule. Article 22 says that no department of the central government may interfere in Hong Kong affairs. Yet Beijing authorities seemed to be doing just that by admonishing Legislative Councilors for their delaying tactics (May 11, 2020 post).
But Article 12 is even less precise. It says only that Hong Kong “shall enjoy a high degree of autonomy and come directly under the Central People’s Government.” Cheng’s comments raised so many questions that the head of Hong Kong’s Bar Association, Philip Dykes, responded with a letter asking for clarification (South China Morning Post, April. 28). Did the Secretary for Justice mean to imply also that Beijing’s supervisory power would extend even to the judiciary and to control over public prosecutions? Hong Kong was guaranteed independence in these most sensitive matters by the Basic Law’s Article 63. Was that to be re-defined as well?
The new emphasis on Beijing’s central oversight role has emerged front and center in Beijing’s developing public “re-education” campaign, evidently aimed at trying to put its unruly Hong Kong house in order. The campaign has been moving into high gear ahead of the annual meetings of China’s legislature, just now getting underway in Beijing. The meetings are usually held in early Spring but were delayed this year due to the Covid-19 flu epidemic.
A full list of the public information points has just been presented by Hong Kong’s former Chief Executive Leung Chun-ying in one of his frequent blog postings. This one is dated May 19th and contains several points that spell out how Beijing can fit its plans for subduing Hong Kong into the original Basic Law framework, promises to the contrary notwithstanding https://mailchi.mp/cb271f396787/65o7zhtlog?e=7f5b97c0d0 .
ANSWERING QUSTIONS FOR ALIEN VISITORS
In his usual flippant style, Leung Chun-ying presents his message as answers to questions from alien visitors who might happen to arrive here from outer space. Such visitors would know nothing about Hong Kong’s past or present, all of which should be common knowledge among ordinary earthlings.
A convenient translation is provided since it is assumed the visitors he is addressing are English speaking new arrivals who have somehow missed all the truths he thinks should be self-evident. At the end, he reveals that the alien visitors are actually the very same foreign force intruders currently being blamed by Beijing for all of Hong Kong’s troubles.
National Authority, Local Autonomy
The answer to the first question repeats Teresa Cheng’s reference to the new emphasis on Article 12. Hong Kong is a local administrative area directly under the Central People’s Government in Beijing.
The second question addresses the nature of Britain’s departure. London did not hand over sovereignty to the people of Hong Kong on July 1, 1997. Britain returned Hong Kong to its rightful owner, now represented by the central Chinese government, allowing it to resume sovereignty over the territory lost by the old imperial Chinese regime.
Questions three through six emphasize the national authority whereby this transfer was accomplished: in accordance with China’s national Constitution, the National People’s Congress, Hong Kong’s Basic Law, and in formal consultation with the people of China. Leung reminds readers that Hong Kong’s Basic Law thus represents the will and aspirations of all the Chinese people. They are therefore entitled to speak out against any violations or untoward behavior that might occur in the ex-colonial territory.
Question seven on the nature of Hong Kong’s autonomy presents some difficulty since Leung fails to mention that the same Article 12, which says Hong Kong is directly under the central government, also says Hong Kong is to enjoy a “high degree of autonomy.”
Leung says Hong Kong did not have its own power before it became a Special Administrative Region of China, nor does it now. All of Hong Kong’s power or autonomy was granted by the central government, which established the HKSAR upon its return to China.
There is more. According to question eight, executive, legislative, judicial, and regional organizational powers in Hong Kong all derive from the same source, namely, the central government. There is no local power.
Also, in deference to the central government, and the people of China, Hong Kong and its people are responsible for defending China’s sovereignty and national security.
Hong Kong does enjoy autonomy in terms of local taxation. But this autonomy derives from the consent and with the support of all the Chinese people.
Local Democracy, Hong Kong-Style
Questions 11 through 15 move into even more difficult circular-driven explanations. Leung says that like all local administrative regions in all countries on earth, Hong Kong practices local democracy. But this is not the democracy of a sovereign state. In all countries, local officials and local administrative bodies are elected and empowered by local people. But such locally elected bodies and officials enjoy only very limited powers.
Actually, Hong Kong’s Chief Executive has much more power than most local authorities in other countries. This is because Hong Kong’s Chief Executive has authorization from the central government, via Beijing’s power of substantive appointment, as well as authorization from the people of Hong Kong through a local selection process. This means dual sources of power and authorization, including both national and local.
On the fraught matter of allowing local voters to elect Hong Kong’s Chief Executives without the substantive input of the central government, Leung gives an evasive answer. Apparently, it cannot happen given the nature of the Hong Kong Chief Executive’s powers. It is allowed in other countries where local elected leaders enjoy fewer powers than those exercised by Hong Kong Chief Executives.
Executive-led, No Separation–of–Powers, No Independence, No Foreign Intervention
Hong Kong’s system is executive led because the government is made up of principal officials appointed by the Chief Executive and by the central government in Beijing. The executive power they represent is greater than that of the legislature. Hong Kong’s legislature cannot propose bills that relate to public expenditure, or the political system, or government operations.
Hong Kong’s executive-led government is accountable to Hong Kong’s legislature, but only in four areas: to implement laws endorsed by the Legislative Council, although such laws cannot be initiated by the council itself; to present regular policy addresses to the Legislative Council; to answer questions from legislators during question time; and to secure legislative approval for government budgets and taxation plans.
Powers are not separated. Nor were they under British rule. The judiciary is independent. But the relationship between the executive and legislature is not one of separate powers. Independence for Hong Kong is out of the question because everyone in China is against it.
There is blatant collusion between outside foreign forces and some people in Hong Kong, all working against the central government in Beijing. Such alien intervention has gone on for a long time, since 1997. It should come to an end.
If only all this had been clarified at the time the Basic Law was promulgated, in 1990, Hong Kong might have been spared decades of disappointment. But on the other hand, if all this had been advertised in advance, the 1997 transfer to Chinese rule might not have gone as smoothly as it did.
TOWARD WHAT END?
Leung Chun-ying’s presentation reinforces the impression that Hong Kong’s Basic Law constitution is not really a prescription for preserving Hong Kong’s post-colonial autonomy under the “one-country, two-systems” governing principle. Instead, the Basic Law is emerging as a skilfully drafted formula designed to finesse the transition from “one-country, two-systems,” to “one-country, one-system.”
Perhaps that’s the reason for Article 5, which says that China’s “socialist system and policies shall not be practiced” in Hong Kong for 50 years. But what then? The Basic Law does not say. Perhaps the drafters thought 50 years would be about long enough to achieve the goal intended.
When it was promulgated in 1990, China’s then paramount leader Deng Xiaoping hailed the Basic Law as a “masterpiece” of constitutional drafting. Observers indulged the veteran leader’s enthusiasm for the project he had overseen. But in retrospect, maybe Deng was right after all. Because it contains so many gray areas and opt-out clauses that Hong Kong’s Basic Law constitution can easily be manipulated to serve both the appearance of autonomy and the reality of cross-border integration currently underway.
Posted by Suzanne Pepper, on May 25, 2020