Generation 40s – 四十世代

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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


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With its latest intervention in Hong Kong, Beijing wins the battle but is losing the war

South China Morning Post
Comment›Insight & Opinion
2016-11-15

Gary Cheung

Gary Cheung says the NPC should be sparing in the use of its power to interpret the Basic Law, or it risks further alienating the city’s young people

Hongkongers’ fears about another interpretation of the Basic Law by the National People’s Congress Standing Committee came true last Monday. The ruling can certainly kick out Youngspiration lawmakers Baggio Leung Chung-hang and Yau Wai-ching from the legislature, but Beijing is likely to lose more ground in its battle to win the hearts and minds of Hong Kong people.

Mainland officials are right in saying the nation’s top legislative body is empowered to interpret the Basic Law. But what the Standing Committee did went beyond interpreting Article 104; it effectively interpreted the Oaths and Declarations Ordinance, the local legislation to implement the Basic Law provision requiring lawmakers to swear to uphold the Basic Law and swear allegiance to Hong Kong as part of the People’s Republic of China.

The ordinance states that any person “who declines or neglects to take an oath duly requested” shall vacate or be disqualified from office. It already spells out the consequences of failing to comply with the law. But the Standing Committee ruling went further: “An oath taker who intentionally reads out words which do not accord with the wording of the oath prescribed by law, or takes the oath in a manner which is not sincere or not solemn, shall be treated as declining to take the oath.” By doing so, it effectively expands the contents of a piece of local legislation.

Beijing’s decision to interpret the Basic Law indicated its distrust in Hong Kong’s courts, which may not hand down the judgment it favours. But, in fact, Mr Justice Michael Hartmann ruled in a 2004 case that if someone takes the oath in a manner that is inconsistent with the ordinance, thereby altering the substance of the oath, that would be in breach of Article 104 of the Basic Law and therefore would have no legal effect.

NPC Basic Law Committee chairman Li Fei noted last week that the Standing Committee enjoyed the “comprehensive and ultimate power” to interpret the Basic Law. Such authority should not be questioned, he said.

It is true that, after the handover, the Standing Committee can do whatever it likes. But it is a legitimate expectation that Beijing should exercise self-restraint and use the power to interpret the Basic Law sparingly. “One country, two systems” is the product of a political compromise made by Beijing, which recognised in the early 1980s that it would be a failure if the communist system was applied to Hong Kong after 1997.

In an article published in September last year, former chief justice Andrew Li Kwok-nang wrote that the right of abode episode in 1999 had led to a consensus in Hong Kong and, he believed, also in Beijing that apart from an interpretation of an excluded provision made on a judicial reference by the court, the Standing Committee’s power to interpret should only be exercised in the “most exceptional circumstances”. Li was one of the five Court of Final Appeal judges who handed down the landmark judgment in the right of abode case in 1999, which was subsequently overridden by the Standing Committee.

I have been a critic of the two localists since they used derogatory language to insult China during the swearing-in ceremony on October 12. Their childish acts unnecessarily provoked Beijing, which never hesitates to get tough on Hong Kong independence, to intervene in the oath-taking saga.

Mainland officials and the pro-establishment camp are adamant that the interpretation will restore order in the Legislative Council and Hong Kong. But the alienation among the city’s young people towards the mainland and the growing appeal of separatism for them will not vanish with the ouster of the two localists. Instead, the interpretation will only make it more difficult for Beijing to win the hearts and minds of young people and we can expect more radical protests in the years ahead.

Gary Cheung is the Post’s political editor


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Hong Kong’s rebel lawmakers need to watch what they say for a return to calm

South China Morning Post
Comment›Insight & Opinion
2016-10-28

Bernard Chan

Bernard Chan says that, as the uproar over the oaths fiasco grows louder and nastier, a moderate tone from younger, more radical members would be a mark of maturity and inspire opponents to do the same

In mid-September in this column, I discussed the younger generation of lawmakers who had just won seats in the Legislative Council. I saw them as a sign of a new era, as older politicians from both the pro-establishment and pro-democracy camps stand down.

Having once been the youngest member of Legco, I wondered how the newcomers would perform. While they lack experience as legislators, they have idealism and new ideas. The challenge for them is to adapt to their new surroundings and the new range of political policy issues they will have to deal with.

This especially applies, perhaps, to the radical “localists” who have brought a new provocative and outspoken style into politics both in and out of Legco.

As I wrote after the Legco election, two of these newcomers are products of Lingnan University, of which I was council chairman for the last few years. I remember one of them – Nathan Law Kwun-chung, of Hong Kong Island – quite well, as he was also on the council. I did not know the other, Yau Wai-ching of Kowloon West.

Now, of course, everyone knows her. She and her Youngspiration colleague Sixtus Baggio Leung Chung-hang changed the wording when taking their oaths of office for Legco two weeks ago. Among other things, they replaced the word for China with “Cheena”.

In Singapore, it is a tongue-in-cheek anti-mainland slur. But it is also associated with Japanese anti-Chinese militarism. Either way, it is potentially hurtful.

Lingnan puts special stress on developing good judgment, respect for others and effective communication. I would have thought that anyone with experience at a liberal arts college would think carefully about the use of language that potentially angers and upsets other people. Many students and faculty at Lingnan and other campuses will have heard about the controversies in US universities over free speech. What are the limits – where does offensive language become hate speech?

It might seem absurd to advise people (as a university in Colorado has done) to avoid words like “ghetto”, “illegal immigrant”, “crazy” or even “guys”. But promoters of such policies have a point when they say these words can hurt because they are inaccurate. They say the idea is to encourage people to be aware of how caring about the real meaning of words can improve civility.

So this is partly about being thoughtful and considerate to others. In Hong Kong’s badly divided political scene, this is asking for a lot.

Many in both pan-democrat and pro-establishment camps saw the two Youngspiration members’ remarks as at least childish, if not seriously offensive. There is now a major split over whether they can retake the oaths. Some observers call the situation a constitutional crisis.

The conflict is intensifying. The uproar over the oath-taking has led members of both sides to use deliberately insulting and provocative language. It is far worse than anything that happened when I was in Legco. There is a real possibility that Legco’s division will become deeper and harder to mend. The last two council meetings were suspended. Will that happen again next week? The week after?

Even when the court hears the government’s application, it might put the proceedings off to a later date. Or, if the court hands down a judgment, there could be an appeal. Even if we get a quick and certain outcome to the judicial review, one camp in Legco will still be unhappy. Will they continue with walkouts or other action to disrupt the council’s work? How will Legco play its part in solving issues like housing and poverty if it is divided by this sort of bitterness?

And of course this division will be reflected in the wider community, between voters who sincerely supported – and maybe still support – candidates from one side or the other.

I was hoping for a better start to the new Legco. If younger, more radical new members continue to use offensive language, I can see no way out. However, they could indicate that they will moderate their language. That would be a mark of maturity and respect for others, and it would put pressure on their opponents to calm down. Everyone would benefit.

Bernard Chan is a member of the Executive Council


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Did localist lawmakers in oaths row make false statements of loyalty in election pledges?

South China Morning Post
Comment›Insight & Opinion
2016-10-28

Grenville Cross

Grenville Cross says the city’s justice chief must examine whether the duo’s actions in the chamber indicate they made false declarations in their nomination forms, which is a punishable offence

The making of false statements by people ­involved in official ­proceedings is always a serious matter, particularly if oaths are violated.

To stand in Legislative Council elections, candidates are required, under the Legislative Council Ordinance (section 40), to provide the returning officer with a “nomination form”, in which they declare that they will “uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.

Moreover, having made that declaration, a candidate is then supposed, under the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, to sign a “confirmation form”, which, having reminded the candidate of the original declaration, spells out exactly what is meant by upholding the Basic Law, by reference to specific articles thereof.

This, presumably, is for the purposes of ensuring that, before the candidate signs, he or she fully appreciates what is being signed up to.

The confirmation form reminds the candidate that Article 1 of the Basic Law stipulates that Hong Kong “is an inalienable part of the People’s Republic of China”.

It then, for good measure, alerts the candidate to Article 12, which states that Hong Kong “shall be a local administrative region of the People’s Republic of China, which shall enjoy a high degree of autonomy and come directly under the People’s Republic of China”.

At the end, the confirmation form notifies the candidate that, if he or she knowingly makes a statement which is false in a material particular, an offence will have been committed, and the candidate, armed with this knowledge, may, if he or she accept the conditions, then sign it.

The offence in question lies in the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (section 103). This makes it an offence for a person, in an election-related document, to make a statement which he or she “knows to be false in a material particular or recklessly makes a statement which is incorrect in a material particular or knowingly omits a material particular from an election related document”.

Upon conviction, an offender is liable to a maximum sentence of six months’ imprisonment and a fine of HK$5,000.

Every candidate, therefore, who was successfully elected in the Legco election on September 4, would have made a declaration in the nomination form to uphold the Basic Law, together with a pledge of loyalty to the Hong Kong SAR. They should also have signed the confirmation form, although it has been reported that not all did, and only signed the nomination form, but nonetheless still stood for election.

Of course, some prospective candidates were blocked, by returning officers who doubted their bona fides, from standing for election, and this itself is now the subject of judicial review.

However, every ­candidate subsequently elected must, by their declarations, either in the nomination form, or in the confirmation form, or both, have satisfied the officers that they were genuine, in terms of the qualifying criteria.

However, fast-forward to October 13, and two of those candidates, by now legislators-elect, when called upon in Legco to take their oaths of office, indulged instead in various bizarre antics, designed to make a mockery of a solemn occasion.

Obscenities apart, they pledged allegiance to “the Hong Kong nation”, displayed banners proclaiming “Hong Kong is not China”, and deliberately mispronounced the word “China”. Although the Legislative Council president has vacillated over whether to grant the duo a second chance to swear their oaths, wider considerations are now at play.

If the returning officers who processed the nomination forms of the two candidates had had any inkling of what was in store if they were elected, would they still have permitted them to stand? If not, has the wool been pulled over their eyes? If so, have false declarations been made?

Although the government has ­obtained leave to seek a judicial ­review [5], apparently on the basis that, under the Oaths and Declarations Ordinance (section 21) [6], a lawmaker who declines or neglects to take an oath duly requested forfeits his or her place, with no question of a second chance, other issues are outstanding. The secretary for justice, Rimsky Yuen Kwok-keung, as chief prosecutor, must also consider any possible criminality by the two individuals.

In light of their conduct at the attempted swearing-in [7], how genuine were their original declarations in their nomination forms to the returning officers? What inferences about their real thinking at that time may reasonably be drawn from their subsequent behaviour? Were they simply paying lip-service to the formalities in order to get their names on the ballot paper?

These are necessary questions, and, at the very least, an investigation is required, to determine what declarations were made and in which forms.

Of course, it is possible, if unlikely, that, in the few short weeks between making their declarations and being required to swear their oaths, the two individuals underwent a Damascene conversion, morphing from Basic Law upholders into rabid independence fanatics, and Yuen will need to factor this in.

If, however, he concludes that the evidence, when looked at through a common-sense prism, reveals an offence of making a false declaration to the returning officer, he must then decide if a prosecution is in the public interest.

Grenville Cross SC is a criminal justice analyst