Unsurprisingly the comments by Zhang Xiaoming, the head of the central government’s liaison office in Hong Kong, have set off ripples of alarm and unease in the SAR. Again we have a senior mainland official apparently undermining one of the key elements that distinguishes Hong Kong from the mainland – its rule of law. Zhang reportedly said that Hong Kong’s Chief Executive is above the law.

“Hong Kong is not a political system that exercises the separation of powers; not before the handover, not after the handover,” he reportedly said. He went on to say that the separation of powers “is usually established in sovereign states”, and so it is “at best” only a reference for Hong Kong. By this stage readers might begin to wonder if Zhang actually understands the concept of the separation of powers. Clearly he appears unaware that it is an integral part of the governance of the 50 states that make up the United States of America.

Zhang Xiaoming. Photo: NowTV screengrab.

It can be seen be seen from even a cursory reading of the Basic Law that Zhang’s comments about the separation of powers and the Basic Law are just plain  wrong. Article 64 of the Basic Laws says, “ The Government of the Hong Kong Special Administrative Region must abide by the law and be accountable to the Legislative Council of the Region.” The Basic Law says the Chief Executive can be impeached by the Legislative Council under certain conditions. Article 85 says, “The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.”

Dousing the flames
Pro-Beijing supporters in Hong Kong, and unfortunately that includes Hong Kong government ministers, have been quick to say that his comments don’t amount to much and that he is not saying anything which hasn’t been said before. It is true that in recent years mainland officials like Zhang have increasingly been making outrageous and provocative remarks and claiming they are in line with the Basic Law.

Last year’s notorious white paper produced by the State Council caused shock waves in Hong Kong in saying that judges should be ‘patriots’ and described them as no more than government administrators or officials charged with upholding national security. It went on to say that many people in Hong Kong were “confused in their understanding of “one country, two systems” and the Basic Law. Many wrong views that are currently rife in Hong Kong concerning its economy, society and development of its political structure are attributable to this.”

Photo: Woofer Ten.

A terrible misunderstanding
It should be recalled that the system of one country two systems was introduced so that after the handover China took over Hong Kong as a going concern. It was felt necessary by both sides to introduce the system to provide Hong Kong people with a measure of confidence that their way of life and values would continue after 1997. Clearly a more stridently confident and aggressive Beijing government doesn’t like being reminded of promises of universal suffrage, or other commitments related to one country two systems, which were made by another government a long time ago. The very idea of making relatively liberal concessions, even ones that the Beijing government agreed to, runs counter to the prevailing mood in China right now. This is a government that is cracking down on human rights lawyers in the mainland, tightening censorship and making grandiose territorial claims that it owns virtually the entire South China Sea. This is not a government that wants to be seen as ’soft’ on democracy for Hong Kong.

So it plays well back in Beijing when senior mainland officials take a swing at those uppity types in Hong Kong and their inflated notions of a ‘high degree of autonomy.’ It may well be a good career move to show they are capable of dishing it out in Hong Kong.

Chief Executive Leung Chun-Ying.

It is disappointing that Hong Kong officials don’t push back at these comments. Instead they simper and smile and say the officials have been misunderstood or their comments have been taken out of context. This reluctance on the part of Hong Kong officials to stand up to the mainland government over these issues is another reason why people don’t trust the chief executive to look out for the interests of Hong Kong people and why so many want to vote for their own leader.

One system
So how should Zhang’s comments be viewed? If half of what he says was actually enacted then we can kiss goodbye, if we haven’t already, to one country two systems and the rule of law and separation of powers. These concepts would become effectively meaningless. But the real test is if anyone tries to carry out what was suggested. But it is hard to imagine how this would be enacted without a local and possibly and international outcry. Even the most basic definitions of the rule of law involves the separation of powers and holding officials accountable.

So Zhang’s comments are perhaps no more than sabre rattling to coincide with the anniversary of the Occupy movement and the looming National Day holiday. Perhaps it’s no more than a bit of muscle flexing to remind people who the boss is. Maybe it’s a show of support for Chief Executive CY Leung. He’s played his part so now Zhang is telling Hong Kong people,” He’s our guy, we put him in this position and we don’t like seeing people messing about with him.”  Perhaps its one of the mainland’s ways of creating a ‘new normal’ and managing down expectations for universal suffrage.

Photo: Stand News.

Without wishing to appear overly cynical, these comments are a useful exercise for the Beijing government in that they flush out those groups and individuals in Hong Kong that still have the stomach to push back. They can then be targeted for “guidance” by United Front organisations or National Security Bureau operatives.

Some 10-15 year ago, Zhang’s comments would have rattled the stock market. Officials were more careful then about what they said as they didn’t want to worry people or undermine business confidence. But these days people in Hong Kong have become used to officials shooting from the hip and reinterpreting the Basic law on the run, as it were. But given the current hardline environment in mainland China – its power and wealth – you wonder how bothered the Beijing government would be if confidence did begin to slide and people and businesses began moving out of Hong Kong. In days gone by Hong Kong’s rule of law and other qualities that distinguished it from the mainland were clearly valued by Beijing. These days you get the impression that Hong Kong is viewed by Beijing as a bit of a pain with its insistent demands that promises of universal suffrage, should be fulfilled. Indeed you wonder if Beijing might not be too unhappy if Hong Kong lost some of those features that differentiated it from other mainland cities and it became just another city in China. Maybe Zhang’s comments are a function of that kind of thinking.

Howard Winn

Howard Winn has been a journalist for more than 25 years working mostly in Asia. He was until recently Lai See columnist for the South China Morning Post, a column that focused on the lighter side of business and more. He was previously Deputy Editor and Business Editor of the Hong Kong Standard. His work has been published in the Far Eastern Economic Review, the Wall Street Journal, and the International Herald Tribune. His latest work can be found at HowardWinnReports.com