Generation 40s – 四十世代

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How Hong Kong’s Basic Law can serve the interests of all China

South China Morning Post
Comment›Insight & Opinion
2017-06-28
Simon Young
Simon Young says a narrow view of the Basic Law is partly to blame for the ‘one country’ versus ‘two systems’ deadlock in Hong Kong. It’s time to widen the perspective to see what the SAR can offer the country

Looking at the Basic Law from different perspectives may yield different results. For the past 20 years, most people, including myself, have understood the Basic Law to be a legal instrument intended to continue and preserve Hong Kong’s way of life for at least 50 years under Chinese sovereignty. I call this the internal perspective, which looks at how the Basic Law serves the interests of Hong Kong and Hong Kong people.

However, the internal perspective has proven to be divisive, one that sees continuous tension and conflict between the “one country” and the “two systems”. The conflict is well known, if not tiresome. One sees it in recent speeches on the success or failure of the Basic Law.

The side trumpeting the “one country” hails the Basic Law’s first 20 years, pointing to Beijing’s restraint and the many ways in which Hong Kong has been allowed to prosper. To this group, the Standing Committee of the National People’s Congress has made “only” five interpretations of the Basic Law, each measured and made for good reasons. Those calling for independence or self-determination are regarded as ungrateful, spoiled, and soon to be, if not already are, enemies of the state unless stronger measures are taken.

Those trumpeting the “two systems” highlight the “high degree” of autonomy promised to Hong Kong in the Basic Law and the Sino-British Joint Declaration. To them, one Standing Committee interpretation is one too many, and the five we have had have seriously damaged common law judicial independence. What is there to celebrate when press freedom has been deteriorating, Chinese mainland authorities have increasingly encroached on Hong Kong’s autonomy, and the local government has been unable to defend Hong Kong’s interests. The government’s “hardline approach” is to blame for the failure of “one country, two systems”, and independence talk is but a natural consequence of the political reform void.

As the internal perspective looks mainly to the interests and continuity of Hong Kong, there is little room to consider Hong Kong-mainland relations. The two sides are single entities unable to have a constructive dialogue on constitutional development. During the 2014 universal suffrage debacle, the central government’s Standing Committee decision was a top-down monologue, while local protesters’ provocative means drowned out their message and those of others.

In this internal perspective, Hong Kong remains a “borrowed place on borrowed time”, with 2047 standing in the place of 1997.

The two sides have divergent ideas on how to resolve the conflict. The “one country” camp would invest in a kind of brainwashing, and recommend for the incorrigible, first, elimination from the political system, then incarceration. For the autonomy camp, there are different responses: protest, obstruct, disobey, veto and exit. While those in the autonomy camp await a new president, those in the other camp await 2047.

In contrast to the dismal internal perspective, there is another perspective of the Basic Law rarely mentioned. The external perspective sees the Basic Law as serving national interests and the nation’s interests in the global community.

This is not the same as the “one country” camp’s internal perspective of the Basic Law. The words “belt” and “road” do not appear in the Basic Law. Hong Kong is not compared with other parts of China. It is a distinct society with an unrealised potential to furthering national interests. The external perspective sees Hong Kong and Hong Kong people having a greater role in matters of state, as contemplated by Article 21 of the Basic Law. This goes beyond having local deputies in the NPC and ex-chief executives become vice-chairmen of the Chinese People’s Political Consultative Conference. The external perspective recognises the contribution that Hong Kong already makes to China’s international standing.

The autonomy camp does not see the external perspective, or they see it as irrelevant, as they continue to fight micro battles with the “one country” camp and the Hong Kong or mainland governments. Some do not see the nation at all, whether because they are legally barred from entering the mainland or figuratively because of pro-independence thinking.

The vision in the external perspective remains largely unfulfilled because there are few opportunities for Hong Kong people to participate in the management of state affairs. It is doubtful that the central government trusts Hong Kong people with such responsibilities. Take the example of having mainland officials in Hong Kong in a co-location arrangement for boundary checks for the mainland-Hong Kong express rail link. It is likely to be one of the most challenging problems facing the new administration. There is, however, a solution to the problem in Article 20 of the Basic Law, which provides that Hong Kong may “enjoy other powers granted to it” by the mainland authorities.

Why not grant Hong Kong officials the power to conduct boundary checks on behalf of the mainland? A select group of Hong Kong officers could be specially trained by mainland officers and sworn to secrecy on the intelligence obtained from the mainland security network. Hong Kong would maintain its autonomy while contributing to a matter of national importance.

While the precise arrangements have yet to be announced, it seems highly unlikely the mainland government would entrust Hong Kong with such powers.

In State Council white papers and the speeches of the foreign minister, Wang Yi (王毅), even on topics of rule of law and human rights, Hong Kong is not cited as an exemplar. When mentioned in a recent speech by Wang, it was only to say that China had opposed “foreign interference in Hong Kong and Macau affairs”. Recently in London, Hong Kong’s secretary for justice lauded the city’s system of overseas judges in the Court of Final Appeal as an “innovative formula” that “proved to be a success”. I cannot recall ever hearing a mainland official giving similar praise. Rather, one hears voices in the “one country” camp calling for the system to be dismantled. The judiciary, which enjoys both public confidence and international repute, should instead be a matter of national pride. One wonders whether such calls do a disservice to the national interest.

The 2014 white paper on “one country, two systems” stated correctly that “Hong Kong’s experience can be of reference for the mainland to pursue innovative ways in social and economic management”. This is an understatement as Hong Kong experience and talent can help the mainland in many other ways if given the opportunity.

As we mark the first 20 years and reflect on the next 20, it is time for all to take a fresh look at the Basic Law to get beyond the conflict of the internal dimension. The very survival of the Basic Law beyond 2047 may well depend on finding common ground in a new perspective.

Simon Young Ngai-man is professor and associate dean in the Faculty of Law, the University of Hong Kong


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Hong Kong’s handover anniversary is an opportunity to restore faith in ‘two systems’

CommentInsight & Opinion
2017-06-27
Anson Chan says the inspired solution of ‘one country, two systems’ has clearly floundered in recent years, and now is the time for incoming chief executive Carrie Lam, as well as Beijing, to act so the healing can begin and hope can return

The 20th anniversary of the return of Hong Kong to Chinese sovereignty has prompted a flurry of reflection and commentary, in both local media and, significantly, in the overseas press.

Back in 1997, if one was betting on the success of “one country, two systems”, the stakes would have been high. The concept, hailed as the brainchild of late paramount leader Deng Xiaoping (鄧小平), is certainly one of the most imaginative constitutional balancing acts ever devised: an inspired solution to what seemed like the impossible ­dilemma of how to fit one of the world’s most thriving capitalist ­enclaves into the socialist straitjacket of Communist China.

At the same time, sustaining the concept over the 50 years of “no change”, prescribed under the Joint Declaration and the Basic Law, was always going to be challenging. Leafing through some speeches ­I delivered shortly after the handover as chief secretary, I came across the following words from an address made in 1998 to the Asia Society in Washington: “None of us could know how our world might change after June 30, 1997. We had no precedent to compare with, or to follow. What we did have were the genuine good intentions and the best wishes of all parties involved. But even before the transition, I felt that, in the final analysis, it would be up to us, the people of Hong Kong, to make the transition work.”

My sentiments have not changed; if anything, I feel even more strongly that it is up to the people of Hong Kong to make “one country, two systems” work, up to and hopefully beyond 2047.

Project Citizens Foundation, of which I am a founding director, ­recently hosted a public forum on “Hong Kong 2047: Quo Vadis?” One of the speakers was Legislative Council member and Demosisto chair, Nathan Law Kwun-chung.

Law spoke movingly about how Hong Kong’s younger generations feel their future was just handed off by the British colonial power. As a result, they were robbed of any right of self-determination. This is why, he argued, so many young people struggle to identify with a motherland that doesn’t seem to understand their hopes and aspirations.

As I ponder the issue of where we go from here, I am reminded of the words of a song from Tim Rice and Andrew Lloyd Webber’s hit musical: Jesus Christ Superstar : “I’ve been very hopeful so far, now for the first time I think we’re going wrong … could we start again please?’’

Why do these words resonate? Quite simply because, in the first few years after the transfer of sovereignty, “one country, two systems” worked as it was intended to do. Hong Kong continued to be administered by an able and politically neutral civil service, and there was no interference either by the leadership in Beijing, or the New China News Agency (the central government’s representative office before the liaison office was set up in 2000).

Until Hong Kong people are governed by politicians they respect and whom they can trust to protect their interests … it will be impossible to heal the rifts and safeguard ‘one country, two systems’

Things have gone badly wrong in recent years. Who is to blame? I do not intend to apportion blame, as it does not take us forward. Rather, I believe we should grasp the golden opportunity presented by the 20th anniversary of the handover, and the entry into office of a new chief executive, to start again: to turn over a new leaf in our relations with the central government.

First, Carrie Lam Cheng ­Yuet-ngor must step out of the shadow of the Leung Chun-ying era, with its lack of integrity and connivance in the relegation of Hong Kong’s status to a satellite of the mainland, rather than an ­important global city in its own right. She must quietly, but firmly, take back the reins of day-to-day governance of Hong Kong and make clear that, while her administration will respect fully its obligations under “one country”, the central authorities must stop eating away at the boundaries of Hong Kong’s high degree of autonomy guaranteed under “two systems”.

Recent thinly veiled warnings by the National People’s Congress chairman, Zhang Dejiang ( 張德江 ), to the effect that Beijing will not hesitate to tighten its grip in aspects such as the pace of political reform, its power over the chief executive, and its authority to ­appoint and dismiss key officials, are both uncalled for and totally counterproductive.

As Lam has already rightly emphasised to the leadership, the voices calling for independence for Hong Kong represent a tiny minority. The best thing Beijing can do is demonstrate that, having orchestrated her election as chief executive, they are prepared to trust in her judgement and show her the respect she needs to captain her ship.

Above all, Beijing must support Lam in taking steps to reverse the disastrous decline in the morale of the civil service, which is a direct consequence of its increasingly ­blatant interference in the day-to-day conduct of the bureaucracy.

I have made no secret, over the years, of my belief that the introduction of the political appointment system was misguided. It has drained the senior ranks of the civil service to fill ministerial positions and compromised the neutrality of those who remain. It has failed to nurture new political talent, as seen in the lacklustre performance of many of Leung’s team and the fact that Lam has clearly been less than successful in recruiting the new blood she had hoped for.

I am not convinced that the failure to attract ­talent from the private sector into government positions is due to ­lower pay, or a lack of public-spiritedness. Nor do I believe it is ­because they are discouraged by the (at times) toxic atmosphere in ­Legco. The only way to attract individuals of high calibre and integrity into the public service is to convince them they will be able to exercise their duties with intellectual rigour, impartiality, and according to their conscience. Until Hong Kong people are governed by politicians they respect and whom they can trust to protect their interests – politicians who have a genuine mandate by virtue of being ­appointed on the basis of a democratic system of fair and open elections – it will be impossible to heal the rifts in our society and safeguard “one country, two systems” for coming generations.

Bottom line? Lam cannot ­afford to place the issue of constitutional ­reform on the back-burner. At least, she must bring forward proposals to end the scandalous situation whereby the votes of a minority of vested interests in Legco and the Election Committee for chief executive can usurp the rights of the majority of Hong Kong electorate.

Lam cannot ­afford to place the issue of constitutional ­reform on the back-burner

Numerous well-thought-out proposals to broaden the electorate of the functional constituencies, or phase them out, were submitted during the 2013-2014 consultation process, ­including by my own Hong Kong 2020 think tank. All were ­ignored. These proposals should be revisited at the earliest opportunity.

Back on July 1, 1997, watching for the first time the raising of the national flag at the handover ceremony, I recall a sense of emotion that is hard to describe. I began to appreciate the spiritual propriety of Hong Kong’s return to the mainland. My family – like many in Hong Kong – did not leave China willingly. We left because we felt we had to.

I felt we had been a country and a people divided … now we had an ­opportunity to be whole

As a Chinese, I felt we had been a country and a people divided, travelling different roads and shaped by ­different events. Now we had an ­opportunity to be whole.

On July 1 this year, my emotions are going to be far more mixed. I will take pride in the achievements of the past 20 years, in the resilience of our community and its determination to hold on to the values, freedoms and way of life we hold dear. At the same time, I will feel disappointment and alarm that the precious concept of “one country, two systems” seems to be floundering, despite the best efforts of so many.

The visit of President Xi Jinping (習近平),who arrives on Thursday to officiate at the anniversary celebrations, is an opportunity I hope our country’s leader will embrace: an opportunity to promote the healing process and give our young people hope. Could we start again please?

Anson Chan, a former chief secretary of Hong Kong, is convenor of Hong Kong 2020


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What Hong Kong can learn from Europe’s still-evolving union

South China Morning Post
CommentInsight & Opinion
2017-03-22

Yan Shaohua says the consensus-building project that is the European Union offers good pointers for our divided city

 

This year is an eventful year for Hong Kong. The city is poised to see the election of a new chief executive on March 26, and 2017 also marks the 20th anniversary of the Hong Kong Special Administrative Region.

On another continent, and just one day before the chief executive election here, the European Union will celebrate the 60th anniversary of the Treaty of Rome that laid the foundation of the union.

The EU and Hong Kong may seem very different from one another, but if we look deeper, the two could be familiar strangers. Philosophically, the EU’s concept of “unity without uniformity” resonates perfectly with the spirit of “one country, two systems” here. And, to a large extent, both the EU and Hong Kong are “strange animals” in terms of their unique place in the global system.

There are other similarities. The EU suffers from a perceived “democratic deficit”, Hong Kong is struggling to establish a “true demo­cracy”. The EU faces a backlash against the consolidation of a political union, Hong Kong is stuck in its political reform. The EU frets over the ascent of populism and nationalism, Hong Kong fears the rise of localism. Facing these challenges, both sides are at a crossroads, compelled to review their past and reflect on future paths.

Giving these commonalities, it is surprising that so little attention is paid to the EU in Hong Kong’s discussions on the future of “one country, two systems”. As a researcher in European studies in Hong Kong, I believe that a study of the EU would offer valuable lessons for our problems. These lessons can be summarised in what I call the “3Cs”: constitution, communication and consensus.

Constitution

The first lesson is to come back to the constitution. Despite its inherent flaws and the multiple crises along the way, the EU has evolved from a group of six members into a union of 28 states under a supranational governance structure. This has largely occurred on the basis of what we call the acquis communautaire, which includes the accumulated legislation, legal order and court decisions that constitute the body of European Union laws.

In particular, the Treaty of Rome and its subsequent revisions have served as the constitutional framework to navigate the EU’s evolution. Although the EU’s progression is slow and not without setbacks, there has been a strong sense of working through the constitutional treaties which enables the EU to overcome the seemingly unworkable system.

The EU’s adherence to its constitutional framework and the supremacy it gives to European law should constitute “foreign stones that may serve to polish domestic jade”. Like the EU experience, “one country, two systems” is an evolving formula that calls for continuous improvements in practice. In recent years, the city has seen a strong push for reform, yet many of the discussions undertaken are out of the context and unrealistic.

In fact, a number of the issues raised have already been addressed in the Basic Law, the city’s mini-constitution. It is thus imperative that any discussion on the future of “one country, two systems” – which still provides ample room and flexibility to accommodate the pleas of different stakeholders – begins with the Basic Law.

Li Fei, chairman of the Hong Kong Basic Law Committee under the National People’s Congress Standing Committee, speaks at a luncheon with Hong Kong lawmakers and officials in November 2013. Hong Kong must create effective mechanisms for political communication and consul­tation between the executive and legislative organs, between the pro-establishment and pan-democratic camps, and between the SAR and Beijing. Photo: Sam Tsang

Communication

The second lesson is to establish effective channels of communication. The EU is a system of multilevel governance that involves multiple actors and multiple methods of decision-making. The functioning of such a complicated system would not have been possible without the various formal and informal mechanisms of communication between EU institutions and member states.

Such open and institutionalised ways of communication are not sufficiently seen within Hong Kong or between Hong Kong and Beijing. Consequently, the city is constantly trapped in confrontations over policies, politics and, particularly, its relations with Beijing.

To avoid unnecessary confrontation and facilitate constructive interactions, a priority for Hong Kong is to create effective mechanisms (formal or informal) for political communication and consul­tation between the executive and legislative organs, between the pro-establishment and pan-democratic camps, and between the SAR and Beijing. This could be achieved within Hong Kong’s constitutional framework.

Hong Kong’s pro-democracy lawmakers hold up banners while being escorted out after they interrupted the chief executive election forum in Hong Kong last Sunday. With increasing social movements and political demonstrations, the SAR is transforming from an economic city into a political city, where politics and society are highly polarised. Photo: AFP

Consensus

Based on the constitution and through communication, a third lesson for Hong Kong is to rebuild a consensus. The EU is essentially a project of consensus-building, which has in turn contributed to European integration. For decades, the post-war European consensus on achieving peace and prosperity through functional economic integration has been an enabling factor for the EU’s development.

That consensus seems to be losing momentum right now. The hopes are that a new consensus could be built on the occasion of the EU’s 60th anniversary.

Hong Kong is facing a similar dilemma. With increasing social movements and political demonstrations, the SAR is transforming from an economic city into a political city, where politics and society are highly polarised. Gradually, people seem to be getting used to divisions and confrontations, forgetting the wisdom of making compromises and consensus. It is time for Hong Kong to rebuild a much-needed consensus, not only on its internal governance, but also on its role as a go-between for China and the world.

Finally, we should be aware that the EU and Hong Kong’s “one country, two systems” are both unprecedented political experiments in supranational and national governance. Despite the challenges and the crises that have emerged, they are still something worth fighting for, because they represent future possibilities, and hope.

Dr Yan Shaohua is an Asia fellow at the EU-Asia Institute, ESSCA School of Management, and a member of the One Country Two Systems Youth Forum


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Next Hong Kong chief executive must implement Article 23 national security laws without delay

CommentInsight & Opinion
2017-02-02
Grenville Cross says Beijing’s faith in leaving national security legislation up to the city has been misplaced and the next leader must make this a priority, to avert serious consequences

 

In 2012, when former president Hu Jintao (胡錦濤) visited Hong Kong, he said: “It is essential to put into practice each and every provision of the Basic Law.”

However, almost five years on, and nearly two decades after reunification, Hong Kong has still not, as the Basic Law requires, implemented the national security laws. This is a significant failure, with potentially serious consequences.

The central authorities have placed great faith in Hong Kong by allowing it, in Article 23’s words, to “enact laws on its own” for national security. In most places, national security legislation is dealt with through national parliaments, and not left to regional legislatures.

Of course, China could simply have extended its own national security law to Hong Kong but trusted the city to deal with this within a reasonable time. Its faith, unfortunately, has been misplaced.

There is, however, not a complete vacuum. The old colonial laws on treason, sedition and theft of state secrets could still, at a stretch, be deployed, while the Societies Ordinance enables the secretary for security to control the activities of foreign political organisations. But Hong Kong also needs its own tailor-made laws to cover secession and subversion, which are lacking.

While this might suit some people, it makes a mockery of Hong Kong’s constitutional obligations to the rest of China.

Although Macau, China’s other special administrative region, was ­reunified with the mainland in ­December 1999, as many as 30 months after Hong Kong, it nonetheless managed to enact its own national security legislation by 2009, and the sky has not fallen in.

While Hong Kong’s first secretary for justice, Elsie Leung Oi-sie, valiantly supported the ill-fated attempts by Tung Chee-hwa’s government to turn Article 23 into reality in 2002-03, her two successors, Wong Yan-lung and Rimsky Yuen Kwok-keung, simply sat on their hands. Beijing’s patience must by now have worn very thin, and who can blame them.

Then Hong Kong chief executive Tung Chee-hwa is flanked by his chief secretary and later successor Donald Tsang and justice secretary Elsie Leung – both members of the constitutional reform task force – as he speaks to the media about the National People’s Congress Standing Committee’s interpretations of the Basic Law, at the central government offices in April 2004. Photo: Dickson Lee

In 2015, China’s legislature adopted a comprehensive national security law, far tougher than anything envisaged by Article 23. Its ­Article 40 specifically requires Hong Kong and Macau to fulfil their responsibilities “for the preservation of national security”. While Macau has already acted and need not worry, alarm bells should by now be ringing loudly here.

Although the mainland’s new security law does not apply to Hong Kong, this could easily change. If Hong Kong continues to shirk its duty under Article 23, there must be a real possibility that the hardliners in the Standing Committee of the National People’s Congress will gain the upper hand, and impose it on Hong Kong.

This is entirely feasible, as the Basic Law’s Article 18(3) entitles the Standing Committee to add laws to the list of national laws applicable to Hong Kong in Annex III.

Crowds in Causeway Bay take part in a 500,000-strong rally from Victoria Park to the Hong Kong government headquarters in protest against Article 23, on July 1, 2003. Photo: Edward Wong

Since the 2003 debacle, when Tung’s government abandoned its Article 23 legislation after mass protests (and a stab in the back from one of its own), there has been ­paralysis throughout government at the very mention of national security, but this must change. Anyone wishing to become the chief executive must commit themselves not only to implementing Article 23, but to doing so sooner rather than later, without prevarication. The time for pussyfooting around has long since gone, and the next chief executive must ensure that Hong Kong discharges its duty to the nation, and shows that it can be trusted.

To allay public concerns, however, the new security laws must be narrowly drawn, and respectful of human rights guarantees. The whole emphasis should be on proscribing violence, disorder or illegality as a means to an end, as already reflected in our current treason and sedition laws.

The new secession law must, therefore, be construed in terms of withdrawing a part of China by force or serious criminal means, or ­engaging in war. Subversion should be defined as disestablishing, ­intimidating or overthrowing the central government by using force or other serious criminal means.

However, the peaceful discussion of independence should not be criminalised, and nor could it, so long as Hong Kong subscribes to the International Covenant on Civil and Political Rights, which guarantees freedom of expression and the right to hold opinions without interference. As Elsie Leung wisely noted in 2002, provided force, violence or serious unlawful means are not used to try to effect change, “we should not use criminal sanction against people from discussing, expressing opinions and even to strive to achieve such an objective”.

Since 1997, the central authorities have done much to uphold the Basic Law, thereby ensuring the success of “one country, two systems”, and for this we must be grateful.

Hong Kong, for its part, must now demonstrate its own bona fides. If Article 23 is not enacted, then, quite apart from the Annex III danger, the prospects of a “through-train” in 2047, when the Basic Law’s “50 years unchanged” expires, will be significantly diminished.

Grenville Cross SC is a criminal justice analyst