Hong Kong: How to Corrupt an Open Society

[The following is no science, and no judicial opinion.]

Whenever he pointed out that the Central Government’s Liaison Office in Hong Kong blocked elections on any level, pro-Beijingers had denied this, and asked him to provide evidence, Martin Lee Chu-ming (李柱铭) tells  Singapore’s Morning News (联合早报). He cites Li Guikang (黎桂康), Cao Erbao (曹二宝), and Cheng Jie (程洁) as his witnesses.

Neither of the three can probably count as great friends of Martin Lee. Cao Erbao, head of the Chinese government’s Liaison Office[‘s research department – update] in Hong Kong, had frankly stated that Hong Kong is governed by a duopoly of mainland Chinese cadres and local Hong Kong officials. Cao’s article, although unclassified and published, kept hibernating for about a year before it caught wider public attention. “Hong Kong’s politicians in general aren’t surprised”, writes Morning News.

Now Cheng Jie (程洁), an associate professor of law at Tsinghua University in Beijing, and a lawyer for the National People’s Congress Standing Committee to work on Hong Kong and Macau Basic Law issues in 2006 and 2007, adds her story of a new policy, in the Fall edition of the Hong Kong Journal.

Martin Lee has a lot of reason to draw on Cheng’s and  Cao’s article as evidence.

“After Reunification, since China has resumed the exercise of sovereignty over Hong Kong, the Central Authorities exercise the constitutional power to govern Hong Kong according to the Constitution and the Basic Law. The organization the Central People’s Government posts to Hong Kong, can now legitimately be described as Offices set up by the Central People’s Government in the Hong Kong Special Administrative Region performing functions under the Basic Law as authorized by Central Authorities”,

Cao wrote in the fourth thesis of his paper, The transformation of the team of cadres of the Central and Mainland Authorities carrying out Hong Kong work into an important governing power also reflects a major change in the historical position in the Hong Kong work of our Party as the national ruling Party.

His assumption might to some extent be based on the 50-years time limit for Hong Kong’s “high degree of autonomy” – but then, for fifty years, there this autonomy is supposed to be around. Beijing’s problem with it is that in Hong Kong, there are “two suns in the sky” – which is an absolute “No” for the CCP. Really no surprise, but a bad foundation for Hong Kong’s autonomy.

Of course, that’s not what Cheng says. Her article is technical, candid, and instructive.

“When the CFA [Court of Final Appeal, in 1999, Ng Ka Ling case] stated “unequivocally” that the courts of the region have the jurisdiction to examine legislative acts of the National People’s Congress or its Standing Committee (NPCSC), and to invalidate them if inconsistent with the Basic Law (the Chinese legislation that serves as Hong Kong’s de facto constitution), the NPCSC reacted with its first interpretation overriding the CFA decision. Even though the issue of constitutional jurisdiction itself was not addressed in the NPCSC’s interpretation, the clear statement rejecting the CFA’s interpretation and the express request for compliance with the NPCSC interpretation emphasized that final authority lay with the central government”,

she writes. Given that the CFA’s decision in itself was hardly popular in Hong Kong – it granted the legal right to abode for possibly more than 500,000 people born in mainland China, but with a father or mother who were permanent residents of Hong Kong -, this was a convenient Trojan horse for Beijing.

And an essential one, given the CCP’s mindset:

“In terms of devolution, Beijing has reserved powers over both the executive and legislative institutions of Hong Kong. Only judicial power is thoroughly devolved”,

writes Cheng Jie, and adds that given the CFA’s merely local character (Hong Kong), this was a “paradox”. Beijing’s reaction to the CFA’s role as the protector of the basic rights of Hong Kong citizens (Thomas Kellogg) on the other hand was almost predictable.

Less than a month after the decision was announced, Xu Chongde, a well-known Beijing-based conservative academic with deep ties to the government, denounced the decision as undermining the authority of the Standing Committee. In Xu’s view, the CFA had “overly expanded its powers.” Peking University professor and longtime government-affiliated academic Xiao Weiyun also criticized the ruling as overstepping the court’s authority in a manner that was detrimental to “one country, two systems.” Xu and Xiao’s comments were echoed a few days later by then-Information Minister Zhao Qisheng. “The court’s decision is a mistake and against the Basic Law,” Zhao told a group of reporters. “This is a very serious matter.”

Given the (even if unrealistic) imagination of half a million “mainlanders” rushing into Hong Kong at once, many HK citizens probably agreed that this was a very serious matter – though for different reasons.

____________

Some further Reading:
The Danger of Keeping up Appearances, Suzanne Pepper, China Elections, June 2, 2009
China Expanding Power Base in HK, Paul Lin, Taipei Times, May 6, 2009
Excessive Deference or Strategic Retreat? The Impact of Basic Law Article 158, Thomas E. Kellogg, HK Journal, Spring Edition, 2008

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