KATIBA CORNER

Hong Kong and the betrayal by China

What was designated as the Hong Kong Special Administrative Region of China has been supposed to have had with considerable authority, indeed autonomy.

In Summary

• For 150 years Hong Kong was part of the British empire, returned to China in 1997 when the 99-year lease of part of Hong Kong from China expired.

• Britain insisted on a very significant degree of self-government for Hong Kong, including the market economy, democracy, a strong regime of human rights, and an independent judiciary

Anti-government protesters block a street in Central Hong Kong, China, on Friday, October 4, 2019.
Anti-government protesters block a street in Central Hong Kong, China, on Friday, October 4, 2019.
Image: REUTERS

Events in Hong Kong have gripped the world. There is, of course, the obvious drama of events, but also perhaps a renewed interest in China, as a communist state but on the global scene, as Hong Kong, while a part of China, operates a market economy and has aspirations for democracy—and is now punished for the latter.

For 150 years Hong Kong was part of the British empire, returned to China in 1997 when the 99-year lease of part of Hong Kong from China expired.  The terms of returning Hong Kong were agreed after long discussions between Britain (led by Margaret Thatcher) and China (led by Deng Xiaoping) without the participation (or indeed of the knowledge) of the residents of Hong Kong—showing no great respect for democracy.

Britain insisted on a very significant degree of self-government for Hong Kong, including the market economy, democracy, a strong regime of human rights, and an independent judiciary — at least for 50 years. China agreed because it wanted to entice Taiwan to return to the “motherland” – and because it believed that after 50 years China would have caught up with Hong Kong (it meant in economy rather than democracy). When asked what would happen after Hong Kong’s period expires, Deng said that by then “we will all have the same economic system [meaning capitalism]”!

 

The experience of China with Tibetans and other religious communities shows that it has scant respect for human rights.

CONSTITUTIONAL SET UP

China liked to call the situation “One Country Two Systems” because the values and orientations in the two were very different — Communism and Capitalism.

As well as protecting Hong Kong’s economic system (to the extent of requiring low taxes) its Basic Law sets out its governmental structure and human rights protection.

It says: “The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.” And it says that various international treaties including the International Covenant on Civil and Political Rights continue to apply and must be protected by Hong Kong law.

What was designated as the Hong Kong Special Administrative Region of China has been supposed to have had with considerable authority, indeed autonomy.  

And indeed there was freedom of education, economy, political views, travel, alliances with outside groups and companies, etc —mostly not available on the Mainland.

 

But at the same time Hong Kong people have felt the increasing impact of Mainland China: including their taking up hospital beds especially to give birth to babies entitled to live in Hong Kong, swarming in to buy good like dried baby milk (their own being suspect in one of the various Chinese food scandals) and generally changing the character of Hong Kong. A majority of Hong Kong people were born there, not the Mainland, and resentment of China has made many feel more Hongkongers than Chinese.

The year 2047 is not so far away, they realise, and they feel gradually absorbed by China. And they do not feel that Hong Kong has the control of its own destiny that the Basic Law seemed to promise.

Half the Legislative Council is still elected by “functional constituencies”, some of them very small, and most dominated by “pro-China” forces. And the Chief Executive is still elected by 1200 people, not themselves representative of Hong Kong people, but with an emphasis in favour of pro-China forces in Hong Kong.

Many feel that successive Chief Executives have been too deferential to the Mainland, and not sufficiently committed to Hong Kong.

What China has been doing in Hong Kong in the last few years reinforces fear of China’s disregard of the numerous agreements it negotiated with other states (particularly Britain) and international institutions (including the UN, specialist organisations and regional agreements) on its promises to respect its agreements with Hong Kong (and Britain). In recent years (especially since it increasingly participates in international engagements), it disregards its agreement with Britain on autonomy of Hong Kong.

Few important groups (Chinese or otherwise) were content with Hong Kong’s authority over the economy, but began to dictate political structures; and Hong Kong’s wealthy and the public servants developed a close relationship. Whatever the outside image of Hong Kong, 20% of its people live below its poverty line (an increase over the years), while huge wealth is also seen, some of it held by prominent Mainlanders. Under the formula of One Country Two Systems (OCTS), there should have had considerable liberty for the people of Hong Kong.

PRESIDENT XI

Enter the Mainland or more accurately, President Xi Jinping, elected, like President Uhuru Kenyatta, in 2013. In 2018 he got approval from China’s rubber-stamp legislature to change his status from a maximum of two terms to life appointment (not necessarily popular). But it has to some extent put Chinese politics at cross-roads: a massive power for him and it seems, testing the constraints of collective leadership. Kenyans have come across his arrogance in his role in developing our economy, as our President realised on his last visit to Beijing.

China intervenes more in Hong Kong affairs than was expected, including appointments to academic posts—against the Basic Law. It seems as if Xi has little regard for the limits of the constitutional scheme for his activities in Hong Kong.

An early cause of tensions (2003) was an attempt to introduce into Hong Kong laws designed to protect the security of the Mainland – the Basic Law requires them, include on ‘subversion’ against China. The Hong Kong government eventually withdrew them.

In 2015 came the strange disappearances of booksellers who sold the sort of books the Mainland did not like – and they turned up in the Mainland. Deep distrust of China’s legal system (whose Chief Justice has said ‘[b]are your swords towards false western ideals like judicial independence’.

Then came this year’s government efforts to introduce laws allowing people to be formally sent to China for trial.

Eventually, the Chief Executive withdrew this Bill – but too late to stop protests that, as so often happens, revived other still festering resentments. This escalated when the police began to behave in aggressive ways - perhaps mild by Kenyan standards but not by those of Hong Kong. This is a great contrast to past police practices (in Hong Kong if not the Mainland), as our own experience of joining public demonstrations has shown.

HONG KONG'S JUDICIARY

President Xi has violated several provisions of the Basic Law governing Hong Kong, and has threatened a primary element of Hong Kong’s sytem: the Rule of Law, which includes a skilled legal profession, and more importantly an independent judiciary. In exceptional cases, the Chinese judiciary can review the decision of the final Hong Kong court. That makes sense since the two systems are so different.

Two High Court judges on Monday ruled that the emergency legislation that brought a ban on face coverings in public places was “incompatible with the Basic Law” on one technical ground about lawmaking powers and one of excessive interference with human rights – neither about the Mainland’s powers.

But the Mainland Hong Kong affairs office said that this “blatantly challenged the authority” of China’s legislature and of Hong Kong Chief Executive Carrie Lam, creating “severe negative social and political impact.”

Legal experts were divided, some calling the judgment an important recognition of Hong Kong’s constitutional framework, while those on the mainland expressed concerns that the court might have sent the wrong signal to the radical protesters, floating the idea of Beijing interpreting the Basic Law again. There was talk of taking the proceedings to a Chinese court clearly against the Basic Law of Hong Kong.  

The responses to unrest of both Mainland and Hong Kong governments have consistently been inept; attitudes have hardened; and it is hard to see how the OCTS can be revitalized.

 

Yash and Jill Ghai taught law in Hong Kong for 16 years and Yash wrote the leading constitutional book, Hong Kong’s New Constitutional Order