Construction workers remove the scaffolding on a building in Sham Shui Po as the Hong Kong and Chinese flags flutter in the foreground, in June 2019. Photo: Felix Wong
Opinion
Opinion
by Michael C. Davis
Opinion
by Michael C. Davis
Controversy over role of Beijing’s offices in Hong Kong shows weight of ‘one country’ threatens the scaffolding of ‘two systems’
If the Basic Law’s restraint on mainland departments interfering in local affairs does not apply to offices of the central government in Hong Kong, what is the point of the mini-constitution?
Meanwhile, Hongkongers have been denied the capacity to form a government that would be capable of defending the city’s autonomy
The Hong Kong and Macau Affairs Office and the central government’s liaison office have over the past week proclaimed their independence from Basic Law constraints.
The HKMAO and the liaison office specifically claim not to be bound by Basic Law Article 22’s limitations on interference in Hong Kong affairs. The Hong Kong office of China’s Foreign Ministry supported this position. They never quite explain how the offices, which the Hong Kong government repeatedly said were set up in accordance with Article 22, are no longer bound by the same article.
As they proclaim the central government’s power, in their hands, to supervise the local government’s exercise of autonomy under the Basic Law, we can only wonder what is left of the promised autonomy under the “one country, two systems” framework. Has “one country” completely swallowed “two systems”?
When we are told that the Basic Law restraint on mainland departments interfering in local affairs does not apply to these offices of the central government, we can only wonder what the point of the Basic Law is. The very specific provision in Article 2 of the Basic Law providing for a high degree of autonomy with an independent executive, legislative and judicial power apparently does not mean what it says.
The requirement in Article 16 that Hong Kong exercise executive power “on its own” apparently does not mean that either.
With Article 158 investing in the Standing Committee of the National People’s Congress the power to interpret the Basic Law, and the central government having the power to approve appointment of top officials, it would seem that Beijing has adequate avenues of oversight without resorting to extralegal means.
Central government officials have repeatedly accused Hong Kong and international critics of failing to understand the Basic Law. We might wonder how many specific provisions of the Basic Law are to be abrogated under their understanding?
Hong Kong Chief Executive Carrie Lam shares a laugh with Luo Huining, director of the liaison office, at the office’s spring reception at the Convention and Exhibition Centre in Wan Chai on January 15. Photo: Sam Tsang
The inherent common law power of constitutional judicial review has long been in their cross hairs. On nearly every occasion that the Hong Kong courts reach a decision that central government officials dislike, they claim the judiciary does not have the power of constitutional review to overturn legislation.
This was most recently proclaimed when a two-judge panel of the High Court ruled that part of the Emergency Regulations Ordinance used to ban the use of face masks in street protests was unconstitutional, a decision that was partially overturned on appeal.
The 2014 State Council White Paper on one country, two systems raised grave concern by portraying the NPC Standing Committee as the guardian of the rule of law and by including safeguarding national security among judges’ responsibilities.
This later became especially sensitive in the context of Chinese President Xi Jinping’s 2019 admonition that the socialist rule of law in China must follow party leadership and not Western-style judicial independence.
The mainland’s official position that the Basic Law does not mean what it plainly says has also fuelled dramatic public concern in regard to the promises of “universal suffrage”. The objection pertains to the Basic Law promise in Article 39 that the International Covenant on Civil and Political Rights continues to apply in Hong Kong and also to the promise of universal suffrage itself. Neither of these commitments have been fully adhered to.
Article 25 of ICCPR, as interpreted by the ICCPR Human Rights Committee, dictates that universal suffrage involves providing the voters with “genuine elections” and “free choice”.
Instead, after years of dragging its feet over democratic reform, Beijing offered Hong Kong a claimed universal suffrage akin to that in Iran, where a Guardian Council blocks opposition candidates from running. In Hong Kong, it would be a Beijing-friendly nominating committee. This is in no way compliant with the ICCPR.
This foot dragging over democracy not only fails to keep the Basic Law commitment to political reform but also profoundly offends and threatens the rule of law. It offends the rule of law by assigning a meaning to the term “universal suffrage” that such words will not bear. It further threatens the rule of law by denying Hongkongers the capacity to form a government that would be capable of defending Hong Kong’s autonomy.
Pro-democracy protesters open their umbrellas for 87 seconds in Admiralty, Hong Kong, on October 28, 2014, marking the 87 rounds of tear gas that were fired by the police at unarmed student protesters in exactly the same location a month previously. The Occupy movement began after the Standing Committee of the NPC issued a decision on political reform in Hong Kong, which required the screening of candidates for the chief executive election. Photo: EPA
When millions of people took to the streets demanding democratic reform, they knew full well that the same government that proposed the 2019 extradition bill was not capable of defending Hong Kong’s autonomy, and with it the rule of law. They understood that the rule of law is not just following government orders, whether generated by a political party or central government officials.
The wisdom of their judgment was on full display this past week as the Hong Kong government manoeuvred through three drafts of its official response to the above statements of the HKMAO and liaison office, first saying these departments were subject to Article 22 and then reversing course, clearly at Beijing’s bidding, to say they were not.
It seems that the Hong Kong police also got the memo when, as the purveyors of Beijing’s rule of law notion, they selected for arrest from thousands of protesters 15 of Hong Kong’s most moderate and respected democratic leaders. The arrestees role in the protests had mostly been to advocate non-violence.
At a time of a lull in the protests, when the government could be exploring ways to address public concerns, they were instead following Beijing’s bidding to stir up the next round of protests. Where this path is leading us has become increasingly clear.
Michael C. Davis, a former professor of law at the University of Hong Kong, is a global fellow at the Woodrow Wilson International Centre in Washington, DC and a senior research scholar at the Weatherhead East Asia Institute at Columbia University
