By Sebastian Veg
On 7 November 2016, China’s Standing Committee of the National People’s Congress (NPC–SC) handed down an unsolicited interpretation of Hong Kong’s Basic Law, the legal text which guarantees the territory’s autonomous status and governance. This is only the second time since the 1997 ‘handover’ of the city-state to China, that it has made use of this constitutional prerogative, which has always sat uneasily with the independence of Hong Kong’s judiciary.
The NPC’s 2004 decision, coming after the 2003 mass protests against the proposed national security legislation (which must eventually be translated into Hong Kong legislation according to article 23 of the Basic Law) imposed strict limitations on the constitutional reform process, by which Hong Kong was supposed to “gradually” democratize its political representation. In particular, it created a new veto power for Beijing over the further democratization of Hong Kong’s 70-member legislature, the Legislative Council (the elimination of functional constituency seats which often represent pro-government, business interests), which was not contained in the original text of the Basic Law.
The 2016 NPC interpretation was issued in the midst of an ongoing legal challenge in the Hong Kong courts, raising fears that it represented an attempt to interfere with or influence the ruling of the local judge. Although legally acceptable within the Basic Law framework, in any context other than China, a constitutional court (which the NPC-SC is de facto) would almost certainly have refrained from offering a substantive interpretation on a point of law at the centre of an ongoing challenge at a lower level (when the local judge made his ruling one week later, he stressed that the interpretation did not play a role in his decision, stopping short of calling it superfluous).
In its substance however, the interpretation reaffirmed what is emerging as an important tenet of Beijing’s understanding of the Basic Law since 2003: that any elective office in Hong Kong is subject to ultimate approval, either active (in the case of the Chief Executive) or passive (in the case of Legislative Council) by the central government. This was also the central point of contention in the constitutional reform proposal for electing the Chief Executive, made by the NPC in its decision of 31 August 2014, which led to the Umbrella Movement.
There were two contingent aspects to the decision. Since the Legislative Council election in September, Hong Kong’s pro-Beijing camp had been actively looking for a way to prevent pro-autonomy lawmakers-elect from taking their seats. By studding their oaths with expletives and slurs, two newly elected politicians (“Baggio” Leung and Yau Wai-ching) handed Beijing a golden opportunity to disqualify them at minimal political cost, at a time when the political situation was quite unfavourable for pro-Beijing forces (embroiled in controversy over the choice of a non-elected legislator who had not renounced his British citizenship as Legislative Council president).
The Chief Executive, by filing a judicial review in his own name against the president of the Legislative Council (who was willing to let certain lawmakers retake their oath) also took the opportunity to assert his understanding of Hong Kong’s institutions, whereby his role as guardian of the Basic Law is “transcendent” with respect to the legislature (his eagerness to file the case – or possibly lack of coordination with the NPC – probably made the timing of the interpretation even worse). This understanding, underpinned by a 2014 State Council White Paper on “The Practice of One Country Two Systems in Hong Kong,” was ultimately vindicated by the judge, who did not accept the idea that the Legislative Council – like the British parliament for example – should have the ultimate say (by means of a two-thirds vote, as stipulated for certain situations in the Basic Law) over disqualifying one of its own members elected through universal suffrage. Although legally defensible, his decision to disqualify elected lawmakers without a vote in parliament weakens democratic governance and may open a Pandora’s Box of political lawsuits. Both of these contingent initiatives played into the NPC’s assertion of its substantial power of ultimate approval over universal suffrage.
Arguing over whether the Central People’s Government always intended to assert this kind of power under the Basic Law, or whether it has progressively moved the goalposts since the handover is probably a moot debate. What is clear is that it is prepared to use to the fullest all the provisions in the Basic Law that enable it to control the democratic process. The interpretation thus underscores some of the reasons why the Beijing government has failed to gain the trust of Hong Kong society. As we know, net-trust in the Central Government (difference between trust and distrust), as measured by HKUPOP, rose from +1% at the time of the handover, to an all-time high of +46% in August 2007 and August 2008, before entering a gradual but deep decline, which reached a negative -17% in August 2016. There are probably two main reasons for this.
The first and most important one is that the high degree of autonomy enshrined in article two of the Basic Law has been progressively reinterpreted as a limited degree of autonomy under the authority of the central government. This interpretation was first set out in a widely quoted article published in 2008 in the Party journal Study Times by Cao Erbao, the former head of the research department of the Central Liaison Office (CLO) in Hong Kong. Cao argued that a “second team” of central government officials and Party cadres needed to take an active role in governing Hong Kong alongside local institutions. Another CLO researcher and now Peking University law professor, Jiang Shigong, has argued in a Schmittian perspective for a reassertion of sovereignty as the central component of Beijing’s Hong Kong policy. More recently, others have put forward the idea of “one country as goal, two systems as means.”
To most observers, this evolution seems borne out by a long string of events. Mainstream newspapers are under growing pressure to curb the influence of journalists seen as overly critical: Kevin Lau was demoted from the position of chief editor of Mingpao (and subsequently brutally attacked with a chopper), as was his successor Keung Kwok-yuen, both times under flimsy pretexts; HKEJended the weekly column of Joseph Lian, just as the South China Morning Post has also put an end to the columns of Frank Ching and Steven Vines. In 2016, the film Ten Years (which offers a dystopian vision of Hong Kong under the grip of mainland China in 2025) was inexplicably pulled from commercial cinemas although it was screening to full houses. Time-honed public institutions like the civil service (e.g. the returning officers responsible for vetting election candidates), the ICAC (Independent Commission against Corruption), the Department of Justice (which has appealed again and again without reasonable grounds for more severe sentences against Umbrella Movement participants), even the courts (which were used to end the Umbrella Movement in 2014) seem to have become politicized, even as the 2014 White Paper asserted Beijing’s “comprehensive jurisdiction” over Hong Kong’s administration.
Pro-Beijing politicians nominated to the Council of the University of Hong Kong were instrumental in the unprecedented decision of vetoing the highly qualified candidate put forward by an international search committee for the post of Pro-Vice-Chancellor. Shortly afterwards, the member who played the key role in preventing the nomination was appointed Chair of the Council by the Chief Executive. The Causeway Bay bookstore affair in early 2016 (in which Hong Kong booksellers of politically sensitive literature disappeared, only to reappear months later in forced confessions in Chinese state media) awakened suspicions that mainland security forces were able to operate in Hong Kong. Before and after any election, it has become routine for pro-establishment politicians to consult more or less openly with the Central Liaison Office, which is believed to take charge of vetting candidates and coordinating their roles and constituencies. During the Umbrella Movement, the Chief Executive and his team reportedly kept close contact with a team of officials in Shenzhen. Finally, when meeting with central leaders, SAR officials are no longer placed on equal footing but in a position of visible subordination, like provincial leaders in the PRC. When Zhang Dejiang visited Hong Kong in May 2016, his trip was termed an “inspection tour.” In all of these developments, public opinion sees the long arm of the “second governing team.”
The second – related – reason is that under the current system, the Chief Executive has failed to convince public opinion in Hong Kong that he can be an “honest broker” between the aspirations of Hong Kong society and the central government vision for Hong Kong. The current incumbent has certainly contributed to this perception: to give just one example, in his 2016 policy address, his mentions of the Central Government’s vacuous “One Belt One Road” scheme outnumbered even his mentions of “Hong Kong.” When he took his oath of office in 2012, not only was he the first Chief Executive to take it in Mandarin rather than Cantonese, but he – accidentally but revealingly – omitted the word “Hong Kong” when pledging loyalty, a slip-up which has now been challenged in courts. More generally, his stern, paternalistic delivery style makes many of his constituents feel he is continually berating and lecturing them for not considering Hong Kong’s situation from Beijing’s viewpoint.
Chief Executive CY Leung is also widely perceived as an unprincipled, divisive politician, who likes to pour oil on the fire to bolster his own credentials with the central government (some call him the “father of independence”). However, the problem is not only a personal one. More structurally, Beijing’s successive interpretations of the Basic Law and contributions to the constitutional reform process, reaffirming that the Chief Executive’s responsibility to the Central People’s Government is a substantive one, have created a situation in which the Chief Executive is constitutionally unable to take a stance different from Beijing. The model for his position looks less and less like an elected mayor and more and more like an appointed commissioner.
In this context, the widely-repeated slogan “Hongkongers ruling Hong Kong” (Gangren zhi Gang) has come to be seen as hypocritical and is unfavourably contrasted with the colonial era. Whereas the British governor never purported to be a representative of the Hong Kong people, he was able to speak out, including in public, to advance local agendas against the views of the Foreign Office. By contrast, the Chief Executive, who is supposed to be accountable to Hong Kong, is in practice unable to publicly voice the interests of Hong Kong people to the central government. In fact, the notion of “Hong Kong people” is of course omitted from the Basic Law, which only enshrines the Chief Executive’s responsibility “to the SAR.” Despite the existence of a separate currency and tax system, in several key areas, the Chief Executive enjoys less autonomy from the central government than any local elected official even in a non-federal (centralized) democratic system. No elected mayor in Europe is answerable to their prime minister or president. By contrast, Hong Kong’s “high degree” of autonomy is subordinated to democratic centralism.
It is unsurprising that civil society has emerged as the only form of check and balance within the system that is in a position to defend Hong Kong’s high degree of autonomy. The stalemate between the central government and Hong Kong society will be hard to overcome. In democratic systems, governments usually end up backing down, but non-democratic governments generally prefer to “dissolve the people,” as Brecht famously suggested. Yet the Hong Kong context provides just enough foothold for the people to effectively resist dissolution.
What then are the prospects for Hong Kong’s political system? As reported in Mingpao, the Central Government very probably convened a high-level policy meeting on Hong Kong and Macao in last July, during which it has already fixed the main policy lines for the coming term. While the central government may not wish to commit itself to a Chief Executive candidate too early, especially in the aftermath of the report on the Liaison Office presented by the Central Commission for Discipline and Inspection, which may still entail some reshuffling, it is unlikely to endorse significant policy shifts. While it is likely that the competing candidates for Chief Executive have distinct support networks within the Beijing bureaucracy, political scientist Ray Yep has presented compelling arguments why he believes that the current Chief Executive will be given another term, since replacing him would amount to the Central Government admitting to having made a mistake.
In a sense, both China and Hong Kong have changed over the twenty years since the handover. China has become much more capitalist, leading some to believe that the “One country, two systems” arrangement, which in the Basic Law is largely equated with the preservation of capitalism in Hong Kong, will no longer be relevant in 2047, since China will have converged with Hong Kong’s “capitalist” system, the one protected for 50 years under the Basic Law. Conversely, while the assertion may strike some as paradoxical, I would submit that Hong Kong society has become more democratic, gradually overcoming colonial disenfranchisement and embracing a political role.
The newly elected post-Umbrella legislators like Chu Hoi-dick and Nathan Law have rightly pointed out that civil society is still weak and needs time to further spread and strengthen democratic ideas within the community. The pro-democracy camp may need to make more creative use of its opportunities within the present system, since it is unlikely to achieve further institutional reform in the near future. During this time, it is likely that the stalemate between the political establishment and civil society, mobilizing both legal and social tools, and making the most of the many ambiguities of the Basic Law, will continue.
Sebastian Veg is a Professor (directeur d’études) of intellectual history and literature of twentieth century China at the School of Advanced Studies in Social Sciences (EHESS), Paris and an honorary assistant professor at the University of Hong Kong. His interests are in twentieth century Chinese intellectual history, literature, and political debates. Originally published on Open Democracy under a CC licence.