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China's Vision for Hong Kong
Pro-China protesters demonstrate outside the Legislative Council in Hong Kong, China (October 26, 2016).
Image Credit: REUTERS/Bobby Yip

China's Vision for Hong Kong

 
 

This year marks the 20th anniversary of Hong Kong’s return to Chinese rule. Similar to the 10th anniversary, the Hong Kong Post will be issuing a set of stamps to commemorate the establishment of the Special Administrative Region (HKSAR). Pomp and circumstance is expected at the Avenue of Stars along the picturesque Victoria Harbor, where a spectacular firework display will take place on the eve of July 1, with five boats out at sea sending nearly 40,000 fireworks into the air spelling out the words “China-HK,” the number 20, and the image of the city’s bauhinia flower.

As a home venue of the jubilee, Beijing will see its fair share of the celebration. Since January, a plethora of conferences, discussions, and seminars have been held across universities and institutions in the capital city and an enormous number of papers and opinions have been published to summarize and reflect upon the gains and losses of Hong Kong’s handover to China, and specifically the implementation of the Hong Kong Basic Law, the document often called Hong Kong’s “mini-constitution” that is usually considered to be the source of disagreements in recent years.

Of all these meetings, in terms of significance, none is comparable to the official one held on May 27 at the Great Hall of the People, organized by the Committee for the Basic Law of the HKSAR under the Standing Committee of the National People’s Congress (NPCSC). The commemoration ceremony comprised a seminal commemoration symposium in the morning followed by an academic seminar in the afternoon. Hundreds of senior officials, academics, and commentators from Mainland China and Hong Kong were invited to each.

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Zhang Dejiang’s Speech: The Basic Law

Addressing this high-profile commemoration symposium, Zhang Dejiang, chairman of the NPC and a member of China’s Politburo Standing Committee, delivered a speech that carried subtle and significant implications. Calling the Hong Kong Basic Law “an extraordinary feat of the great age,” China’s top legislator affirmed the value of the Basic Law at the outset, praising it as the embodiment of the common desire of all Chinese, including Hong Kong compatriots, which has withstood the test of practice in the past two decades. Moreover, Zhang declared that the central government’s commitment to maintaining the guidelines of “one country, two systems” and “Hong Kong people administering Hong Kong,” actively safeguarding the stability of the society, and preserving the lawful rights and interests of the Hong Kong people. As expected, he once again lashed out against those who advocate for Hong Kong independence and urged Beijing to be on guard, warning that any form of “Hong Kong independence” or “self-determination” would be detrimental, and would lead Hong Kong to a “cul-de-sac.”

What is worth paying more attention to, however, is Zhang’s interpretation of the vertical relationship between Beijing and Hong Kong. While recognizing that Hong Kong is a highly autonomous region with legislative, executive, and independent judicial powers, plus that of final adjudication, Zhang for the first time declared explicitly that all Hong Kong’s powers are derived from Beijing. He specifically referred to the preamble to the Basic Law, in which a historical account was given, stating that “the Government of the PRC will resume the exercise of sovereignty over Hong Kong.” This indicates – so Zhang’s argument ran – that under the principle of “one country, two systems,” “Hong Kong and Beijing are never in a relationship of power-sharing.” Instead, “all powers of the Special Administrative Region are ultimately delegated by the center.” Zhang added that “under no circumstances should Beijing’s power be undermined for the sake of Hong Kong’s high degree of autonomy,” as “national identity” is the legitimate starting point for implementing the Basic Law, and all kinds of powers – the power of autonomous governance included – fall within the sovereignty enjoyed by Beijing over Hong Kong.

Zhang’s perspective struck a chord with most attendees, especially among the legal academics. In his morning guest statement, Han Dayuan, head of China’s Constitutional Law Studies Association and dean of Renmin University Law School, reiterated the value of “national identity,” arguing that the concept of “Constitution-based national identity” is so exacting that it constitutes the foundation of “one country, two systems” and the basis for implementing the Basic Law.

Equally vital is the point of “delegated powers.” In explicating the term, Jiao Hongchang, another eminent law professor from China University of Political Science and Law (CUPL), clarified in his afternoon presentation and also on Weibo, a Twitter-like microblog, that the “power sharing” model differs dramatically from the “power delegating” pattern, in that the latter recognizes the hierarchy of powers, whereas the former presumes that Hong Kong is an independent political entity, which runs squarely at odds with the facts.

That said, Beijing’s formulation rests on a sensitive presumption that the central government is entitled to take back Hong Kong’s powers at any time at its will. As a matter of political promise, this looks extremely unlikely before 2046, as after all Deng Xiaoping once instructed that Hong Kong’s capitalism and its way of life should remain unchanged for 50 years, a promise enshrined in the Sino-British Joint Declaration. Nevertheless, some commentators have speculated that the constitutional order may not be retained in the long term. In a radio interview last year, for example, Elsie Leung, the former secretary for justice of Hong Kong, emphasized that whether the current “one country, two systems” will be scrapped or Hong Kong will copy the mainland mechanism after 2046 largely depends on how Hong Kong does in the following 30 years.

What will happen in the future remains unknown, but what has happened in the past is crystal clear; it signals that not only the vertical relationship, but also the horizontal ties among the three branches of government in Hong Kong are not immune from the influence of the mainland. In 2015, Beijing’s top director in Hong Kong, Zhang Xiaoming, provoked a political stir by saying at a function:

Given the chief executive is serving as a conduit between Beijing and Hong Kong, he has a special legal position that is “transcendent” over the executive, legislative, and judicial bodies. As a sub-national government, Hong Kong has an executive-led system that has never been subject to the idea of separation of powers, but subject only to being overruled by the NPCSC in Beijing.

This over-the-top statement sparked an immediate backlash from legal pundits and the Hong Kong Bar Association, who accused the mainland politicians of misunderstanding the doctrine of “separation of powers.” In their narratives, the principle, as integrated in the common law and the Basic Law, guarantees checks and balances of all branches of government, which should be upheld not solely by the judiciary, but all walks of life in Hong Kong.

The 2014 White Paper: Separation of Powers

The situation above was hardly the first attempt of its kind in this eventful city over the past few years. In a previous incident, a 2014 White Paper on “one country, two systems,” released by the central government, had raised equally if not more grave concerns within the SAR, as it touched the most sensitive nerve of the Hong Kong opponents. This highly controversial document, published immediately before the Occupy Movement in 2014, contained two points that have confronted a groundswell of condemnation in Hong Kong, with one line of instruction categorizing the judiciary on an equal footing to legislators and executives as “administrators of Hong Kong” and the other demanding political allegiance to Beijing from all “administrators,” including the chief executive, principal officials from the executive and legislative bodies, and judges of the courts at all levels in the HKSAR. More specifically, it was insinuated that all of the so-called “Hong Kong administrators,” judges included, were expected not only to correctly understand and implement the Basic Law, safeguard the country’s sovereignty, security and development interests, and ensure the prosperity and stability of Hong Kong, but also to “love the country.” In other words, judges are supposed to be patriots carrying out political duties.

Of course this stance was lambasted by Hong Kongers. The Hong Kong Bar Association, for example, categorically denied that Hong Kong judges are “administrators,” as the cherished doctrine of judicial independence states that judges are simply not part of the machinery of the government, and hence they are not supposed to carry out political missions or duties of any kind. A more blunt criticism came from Andrew Li, the former chief justice, who weighed in and described the requirement as being “supportive of and cooperating with” local and central governments, and therefore “unfortunate and unsuitable.” This position was subsequently endorsed by Geffrey Ma, Li’s successor, who attached importance to the value of judicial independence, stressing that the local judiciary should act on nothing but the law.

However, reading between the lines, some mainland analysts interpreted the White Paper otherwise. Tong Zongjin of the CUPL looked into the root cause of the dispute, which, as he argued, lay in the different conceptualization of the term “administrator” (or “governor”). While it is widely accepted that the concept of “administrator” in the Western tradition excludes judges, the term has an alternative sensu lato translation, in which it broadly includes everything in respect of the power to govern or rule. Tong argued that Beijing’s version is linked with the term’s second meaning, as it reminds us of Deng Xiaoping’s words that “Hong Kong would be governed by the people of Hong Kong,” whereas Hong Kong was in fact talking about the term in its narrow sense, which would naturally preclude judges from becoming a component of legislative and executive branches. This argument was in tune with the historical finding of Peng Chun, a young scholar from Peking University Law School, who asserted in another online commentary that classifying the judiciary as administrators of Hong Kong was merely a first step toward demanding that all members of Hong Kong society pay political allegiance to Beijing. This reflects the concerns and worry from the central government over the fermenting anti-Beijing political undercurrents in recent years.

The Oath-Taking Incident: Demanding Loyalty

Indeed, the anti-Beijing mentality brewing in Hong Kong can be easily perceived in a more recent oath-taking incident within the Legislative Council (Legco). Two pro-independence legislators first had their oath-takings invalidated by the Legco chairman and then their memberships disqualified by the court, because the duo declined to follow the exact wording of the oaths, which include upholding the Basic Law and recognizing that Hong Kong is an inalienable part of China. The pair’s flagrant gesture of defiance prompted the top legislature in Beijing to interpret the Basic Law while the case was still pending in the court. The interpretation demanded that all legislators take oath in a sincere and solemn manner, following accurately and completely the phrases as set out in the Basic Law, otherwise the oath would be nullified.

The timing and contents of the interpretation angered Hong Kong lawyers, who dressed in black and took to the street. They slammed Beijing for handing down such a preemptive decision, which they claimed trampled the rule of law in the SAR. In their eyes, the interpretation, on the one hand, should not have been issued before the court made the final ruling, which undoubtedly put “unnecessary pressure” on judges and hence sabotaged the rule of law, and on the other, it was not in conformity with the provisions of the Basic Law and the Chinese Constitution, which prohibited the NPCSC as a legislator from amending or repealing the Basic Law, except through some special procedures. They insisted that the NPCSC’s decision, if examined carefully, was more an amendment than an interpretation, as the NPCSC this time was not so much seeking to dig out the true legislative intent of the law as, in its own words, to “fill the loopholes in the Basic Law,” which is indisputably prohibited in the common law tradition.

Nevertheless, on the side of mainland China, the orthodox voice was that the NPCSC as China’s top legislator has a final say on the issue, and by saber-rattling those who want to split Hong Kong from China, it has marked down a red line, dictating that under the principle of “one country, two systems,” any attempts to advocate “two systems” must not override those of the “one country,” and the interest of maintaining the sovereignty of the state trumps everything. More insightfully, as another influential scholar, Yao Guojian, asserted, oath-taking by nature concerns Legco members’ political allegiance, which highlights the duties of individuals or institutions to the state. In this light, the oath-taking incident was not merely a legal issue, but also a political case.

Two Approaches to Implementing the Basic Law

By and large, the disputes show that there exist a variety of disagreements between the two regions, and perhaps nowhere are these differences better seen than in the construction of the term “two systems,” the second half of the fundamental guideline. As Zheng Ge, a prolific author from Shanghai, pointed out in his most recent thesis, to mainlanders, “two systems” connotes capitalism and socialism, the two types of economic systems that are operating in Hong Kong and the mainland respectively, whereas on the Hong Kong side, the term stands for two different legal and political systems. As Zheng said, after Hong Kong returned to China, Beijing would allow the two regions to have two different economic systems, and authorize Hong Kong to maintain its original legal and political order, but by no means would it tolerate Hong Kong developing special legal and political mechanisms at will, even to the extent of threatening the principle of “one country.” However, this naturally begs the question as to what constitute special legal and political mechanisms in Hong Kong?

Apparently, Hong Kong’s common law system is one such special mechanism. After almost a century’s development, Hong Kong has a common law system with features that are markedly distinguishable from the legal system of mainland China. In general, two salient features are worth mentioning here. First, a high degree of judicial independence. It is usually considered in Hong Kong that a clear line can be drawn between legal and political matters. With a high degree of autonomy, judges’ job, as believed by most legal professionals, is nothing but to deal with legal matters. This means that legal matters should be handled only in their own terms, without any political considerations. In the words of the former Chief Justice Andrew Li, “under the rule of law, an independent judiciary answers to no political masters.”

Second, there is an antipathy to legislative interpretation. While the Basic Law stipulates that the top legislator in Beijing has plenary power of interpretation of the Basic Law, the courts in Hong Kong see this as the last resort, and even a threat. It was submitted that, so far as it is possible, disputes should be first handled within the Hong Kong court system, mostly by going through normal judicial process; legislative intervention from Beijing should be the last choice. These two features partly unravel the logic behind the above disputes. On the one hand, the independent status earned by judges prevents their being recognized as “administrators” who are under a duty of loyalty to Beijing, like legislators and executives. On the other hand, the NPCSC’s interpretation amid the oath-taking controversy was widely criticized as preemptive and damaging because the case was still in the grip of the local judges.

However, to mainland scholars, the common law method is far from convincing in analyzing the Basic Law disputes. After all, the disputes above concerned political loyalty, with the White Paper imposing political requirements on judges and the oath-taking case on the legislators. In recent years, therefore, a group of legal scholars have proffered an alternative way of reading the Basic Law and the constitutional order. They argued that the academic horizon should be broadened to investigate not only the normative provisions, but also the political realities of Hong Kong. For instance, Jiang Shigong, an authoritative author from Peking University, claimed that by going beyond the concrete context of the Basic Law, the NPCSC was actually directing its attention to a broader goal of preserving the sovereignty of the state and the well-being of the SAR. Criticizing the narrow-minded way of studying law, Jiang in a commencement speech encouraged his students to become patriotic statesmen who would take to heart the fate of the state and nation, rather than legal craftsmen, who merely have meticulous knowledge about law. More to the point is another heavyweight, Chen Duanhong, who advocates study of the “deep wisdom” behind the principle of “one country, two systems” through multiple academic lenses, such as political, social, and cultural examination. Although Jiang and Chen did not air a concrete answer to the disputes, they jointly mapped out a new route to approaching the Basic Law – a political perspective.

Thus, two approaches can be distinguished understanding and implementing the Basic Law, with the Hong Kong side insisting on its long common law tradition, upholding a legal or judicial constitutionalism, and Beijing advocating a novel idea of political constitutionalism. Intriguingly, as a matter of origins, it was argued that this theoretical construction perhaps drew its inspiration from the U.K., where the theory of political constitution (or political constitutionalism) was articulated and defended by a group of constitutional and political thinkers, including J.A.G. Griffith, Richard Bellami, Adam Tomkins, and Grégoire Webber, who opposed the rise of legal constitutionalism and strongly criticized the delegation of vital decisions to non-political institutions and an obsessively court-centered scholarship. Indeed, recent years have witnessed enough efforts of some young Chinese scholars to press parallels between China and the U.K. They combed through the British legacies in the hope of identifying new approaches to construing the Basic Law and the Chinese 1982 Constitution. According to them, attention should be paid to the abstract but no less important theoretical foundations of the Chinese constitutional statues, such as the Communist Party leadership, socialism, democratic centralism, and so on.

Following this logic, some analysts on the mainland have suggested that it may be better for scholars to err on the side of caution; avoiding attaching too much weight to the myth of common law, which has a self-expansion impulse, i.e. giving too much leverage to the judiciary. According to Wang Qianhua, vice chairman of the Centers for Basic Laws Studies in Shenzhen, an official think-tank, the Hong Kong judiciary has somewhat pushed this self-expansion inclination to an extreme as a consequence of its unique legal environment. Different from the circumstances in other common law jurisdictions, where for example judges have been largely reined in by the mode of separation of powers in the United States and the orthodoxy principle of Parliamentary Sovereignty in the U.K., Hong Kong judges are exempted from substantial checks by the central government (because of the high degree of independence) and the Hong Kong Legco (thanks to its frequent filibusters). Against this backdrop, over-emphasizing common law methods risks exacerbating the current situation. While conceding that the Hong Kong courts play a positive role in maintaining social order and stability, Wang insisted that the interpretation of the Basic Law is more a matter of political stance and power allocation than an issue of technology and cultural tradition.

Evidently, there are two approaches to understanding the Basic Law, and which method is more appealing is a matter of debate. Nevertheless, as a direct result of the political construction of the Basic Law, recent years have seen a clear sign that Beijing is tightening its grip of the territory by resorting to various political measures, which include Zhang’s speech at the commemoration conference and the even earlier White Paper instruction. Alas, only time can tell whether the political means can ameliorate the relationship between Beijing and the SAR.

Zheng Zhu is a Ph.D. candidate in law at University of Hull and China University of Political Science and Law.

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