On June 10 the Information Office of the State Council of the People's Republic of China issued a white paper aimed at clarifying the concept and implementation of the "one country, two systems" model in Hong Kong.
The document shocked many Hong Kongers, who believe that Beijing is trying to restrict their freedom and autonomy and bring the former British colony in line with the policies of the Chinese Communist Party (CCP). The white paper in fact bluntly reaffirms that the Hong Kong Special Administrative Region (HKSAR) is subordinate to the central government. According to the white paper, "the central government exercises overall jurisdiction over the HKSAR, including the powers directly exercised by the central government, and the powers delegated to the HKSAR by the central government to enable it to exercise a high degree of autonomy in accordance with the law. The central government has the power of oversight over the exercise of a high degree of autonomy in the HKSAR".
The paper further reiterates that Hong Kong's autonomy is granted and supervised by Beijing:
As prescribed in the Constitution of the People's Republic of China and the Basic Law of the HKSAR, the organs of power by which the central leadership directly exercises jurisdiction over the HKSAR are the NPC [National People's Congress] and its Standing Committee, the president of the state, the Central People's Government, and the Central Military Commission. The NPC decided on the establishment of the HKSAR, formulated the Basic Law of the HKSAR to prescribe the system to be instituted in the HKSAR, and has the power of amendment to the Basic Law. The NPC Standing Committee has the power of interpretation regarding the Basic Law of the HKSAR, the power of decision on revising the selection methods of the chief executive and the Legislative Council of the HKSAR, the power of supervision over the laws formulated by the legislative organs of the HKSAR, the power of decision on the HKSAR entering a state of emergency, and the power of making new authorization for the HKSAR. The HKSAR comes directly under the Central People's Government, and its chief executive is accountable to the Central People's Government. The Central People's Government appoints the chief executive and the principal officials, is responsible for foreign affairs relating to the HKSAR in accordance with the law, and issues directives to the chief executive. The Central Military Commission is the leading body of the Hong Kong garrison, and performs defense and other duties. The central authorities perform overall jurisdiction and constitutional duties as prescribed in the Constitution of the People's Republic of China and in the Basic Law of the HKSAR, and exercise effective administration over the HKSAR (my emphasis).
Beijing's statement came after years of growing tensions between a part of Hong Kong's population and the Communist leadership on the mainland. Most especially, Occupy Central, a movement demanding the implementation of universal suffrage by the next Chief Executive elections in 2017, has angered Beijing. Although the movement is inspired by the tactics of peaceful civil disobedience of Mahatma Ghandi and Martin Luther King, the CCP as well as pro-Beijing groups and media in Hong Kong have tried to portray its initiators as unpatriotic and their actions as a damage to Hong Kong's stability and wealth. Plenty of editorials in state-run media are spreading this view. For instance, in an article published on the Hong Kong edition of China Daily last year, Zhao Bajun explained:
the fundamental political contradiction in Hong Kong has intensified. The struggle between the patriot camp and the opposition camp is entering the decisive stage. Faced with the "Occupy Central" campaign, Hong Kong is at stake. Benny Tai Yiu-ting, the initiator of "Occupy", has emphasized that the campaign is like a "nuclear bomb" in order to threaten the central government. If Beijing doesn't allow the "pan-democracy" camp to have "genuine" universal suffrage in 2017, the latter will ignite the "nuclear bomb", destroying Hong Kong as an international financial center and the city's economy. Though it isn't a real nuclear bomb so its explosion wouldn't cause any material damage to the US Consulate-General in Central, its economic consequences for American business will be as terrible as to other nationalities' business in the same area (my emphasis).
It is obvious that nationalism is one of the main rhetorical weapons used by the CCP against Hong Kong's pro-democracy activism. Last year, in response to Occupy Central's requests, Qiao Xiaoyang, chairman of the National People’s Congress Law Committee, declared that all candidates for the post of Hong Kong's Chief Executive must "love the country, love Hong Kong". Since patriotism cannot be measured objectively, this is likely a way for the CCP leadership to have the last word on who can rule Hong Kong.
The white paper came as a surprise to many people in Hong Kong. Alan Leong, leader of the pro-democracy Civic Party, said that the document "is a sea-change to our understanding of what 'one country, two systems' should be." The Hong Kong Bar Association issued a statement warning that the rule of law in Hong Kong will be harmed if judges must fulfil 'patriotism' requirements which would make them dependent on Beijing's approval. Many people also fear that the central government is going back on its promise to maintain Hong Kong's system intact for 50 years after the handover in 1997.
However, Hong Kongers may have misinterpreted the Basic Law, or they have chosen to misinterpret it in order to comfort themselves. In fact, what is stated in Beijing's white paper is nothing new, and it doesn't represent a change from past policies. As explained in a book published in 2002, Hong Kong's Basic Law is subordinate to the PRC Constitution.
Based on the concept of 'One Country Two Systems' China drew up the Basic Law as an ordinary piece of legislation under art. 31 of the Chinese constitution in order to establish a Special Administrative Region of Hong Kong under Chinese sovereignty. The Basic Law is therefore not a constitution in its own right and it is misleading to describe it as a 'mini-constitution'. The HKSAR is not a federated unit within the Chinese state with its own autonomy or indeed its own state authority. As art. 12 BL clearly spells out, Hong Kong is a 'local administrative region' of China. All residual powers lie in the Central People's Government and such powers as are delegated to the HKSAR are revokable according to the provisions the Constitution of the PRC, art. 60. 1 As an autonomous region it only enjoys those powers which the CPG has delegated to it ... China could at any time unilaterally amend, substitute or even abolish the Basic Law, without Hong Kong's agreement, indeed against its express wishes, although China is legally bound by the obligations it entered into when signing the Joint Declaration. However, China's legal obligations under the Joint Declaration might be difficult to enforce by international courts. (Horlemann 2002, pp. 86-87, my emphasis)
Therefore, the white paper simply confirms what had already been known for years. Hong Kong's degree of autonomy depends solely on Beijing's goodwill. The Basic Law was drafted to please the Hong Kongers and the international community, and to guarantee a smooth handover. Moreover, it is possible that the CCP genuinely wanted to maintain Hong Kong's freedoms. However, these freedoms and autonomy were restricted and had a fixed temporal limit. In 2047, in fact, the "one country, two systems" experiment will come to an end, and Beijing alone will decide on the future of Hong Kong.
As long as the Hong Kongers did not openly challenge the government or ask for more democracy, Beijing was willing to maintain the current system. But the demands for universal suffrage and the open challenge to the central authority have unnerved the PRC leadership.
17 years after the handover, Hong Kong is still the only place in China where the June 4th anniversary can be celebrated publicly, and where the world's first June 4th museum has been opened, so far without retaliations. But the memory of Tiananmen highlights the tensions and contradictions between Hong Kong and Beijing.
25 years ago, the CCP chose to end by force the public display of dissent that could challenge its leadership. It did so without remorse, and without wavering. Now, Beijing is quiet and loyal, while Hong Kong is a troublemaker. History has already shown what could happen. And if it happened, it should not come as a surprise.
Alan Hoo Hon-ching, the chairman of the Basic Law Institute, recently told the South China Morning Post that the Occupy Movement might prompt the central government to implement the controversial National Security Bill, which deals with acts of "treason, secession, sedition, subversion against the
Central People’s Government, or theft of state secrets" and with the prohibition of "foreign political organizations or bodies from conducting political activities in the Region [and] from establishing ties with foreign political organizations or bodies". The Bill was shelved in 2003 due to massive protests. Alan Hoo Hon-ching mentioned the terrorist attacks in Xi'an and Kunming, and the chaotic situation in Thailand, as examples of popular unrest that might prompt Beijing to intervene in Hong Kong to prevent destabilisation.
Zhou Nan, former director of China's state-run Xinhua News Agency, told reporters that the Occupy Central movement is illegal and that the People's Liberation Army might intervene to take control of the situation. “We could not allow Hong Kong to turn into a base to subvert China’s socialist regime under the guise of democracy", he said.
As we know, this scenario is not entirely unlikely. Ultimately, like in 1989, it is only force that determines the pace and direction of political change.
The Basic Law being subordinated to the Chinese Constitution is meaningless since the CCP stopped upholding the freedoms enshrined in that document decades ago. It is funny to me how authoritarian regimes feel the need to "legally" justify their actions. The Basic Law means nothing. The Chinese Constitution means nothing. The only thing that matters is the whims of the Party.
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