THE STORY OF A NEW POLICY

By Jie Cheng
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A recent article by Cao Erbao, director of the research section of Beijing’s Central Liaison Office in Hong Kong,1 attracted considerable controversy. For some Hong Kong readers, it boldly announced a new policy that many found uncomfortable. The article seemed to claim there are two governing forces in Hong Kong: one is the establishment team of the Hong Kong Special Administrative Region itself; the other consists of central government authorities responsible for Hong Kong issues in the mainland as well as in Hong Kong. Although the Central Liaison Office reportedly tried to clarify the issue by stating that Cao’s views were purely theoretical, the article actually did reflect a new policy trend—one that emphasizes engagement and involvement, and the central government’s authority over a subsidiary territory. This article will put this “new policy” in a historical perspective and try to explain the conditions from which it emerged.

Indeed, it will be argued below that this policy was formed over time, especially after several dramatic political events in Hong Kong. The aim of the policy is to address the changing “political environment” in that city, particularly the rise of political parties that have changed the methods of social mobilization, and the evolution of social and political confrontation against not only the HKSAR establishment but also against the central government.

Early Practice of the Center’s Laissez Faire Policy

During the first five years following Hong Kong’s reunification with China, the mainland’s general policy towards Hong Kong was rather laissez faire. Even during the early days of economic crisis in 1997-98, the message from the center continued to be that “Hong Kong People can run Hong Kong successfully”. Later during that crisis, the central government made further commitments to support Hong Kong’s economic development, and continued to emphasize its trust in the SAR government while encouraging mutual trust between the Hong Kong government and society.

The first event that provoked reconsideration of the central government’s authority over Hong Kong was the Court of Final Appeal (CFA)’s 1999 decision in the Ng Ka Ling case (FACV000014/1998). When the CFA 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.

Nevertheless, this 1999 NPCSC interpretation also highlighted the paradox of “one country, two systems”. On the one hand, the two systems are sets of equal institutions. On the other hand, they are not equal since they pertain, respectively, to a central-level government and a local-level government. This paradox is most clearly reflected in the role of the CFA since Hong Kong’s reunification. In terms of devolution, Beijing has reserved powers over both the executive and legislative institutions of Hong Kong. Only judicial power is thoroughly devolved. Therefore, as the court of final appeal, the CFA is actually a national court. But, as its jurisdiction is limited to Hong Kong, it is also a local court. As a national court of final appeals, the CFA should have the right to examine the validity of legislative acts within its territorial limitations. However, as a local court, any issue relating to central government authority is well beyond its jurisdiction. Probably aware of this paradox, Beijing did not wait for the referral of the CFA when delivering subsequent interpretations where the provisions of the Basic Law were at issue.

Even when decisions of the CFA may have contradicted preferences of the center, Beijing remained quiet. From 1999 to 2002, judicial deference on the part of the CFA towards the central government varied from case to case. In the Lau Kong Rung case, the CFA recognized that the NPCSC’s power to interpret the Basic Law conferred by Article 158(1) of that law “is in general and unqualified terms”, while “the Region's courts are authorized to interpret on their own in adjudicating cases the provisions within the limits of the Region's autonomy” (FACV000010/1999). In the later Chong Fung-Yuen case, however, the Court rejected an interpretative document of the Preparatory Committee of the NPC as merely extrinsic material (FACV000026/2000), and not legally binding for the SAR. Since this interpretative document was approved by the NPCSC in 1996, some predicted that the NPCSC might choose to take action against the CFA. Instead, it kept silent.

In fact, between 1997 and 2003, then-President Jiang Zemin attended three anniversary ceremonies in Hong Kong and delivered speeches each time. For the most part, they were intended to support the SAR administration. During ceremonies in 2002 and 2003, Jiang and Premier Wen Jiabao respectively encouraged Hong Kong people to “constantly strive for self-perfection” while facing challenges of the financial crisis. Up to that moment, there was no sign that the center meant to play a role in local politics.

Social Confrontation and Rise of the Center’s Activism

The turning point came in July 2003. Soon after Hong Kong signed the Closer Economic Partnership Arrangement (CEPA) with the mainland to eliminate tariffs on 273 export goods from Hong Kong and provide other measures to revive the economy, 500,000 people launched demonstrations due to several sources of dissatisfaction—security legislation proposed under Article 23 of the Basic Law, a failing economy, the handling of the SARS epidemic and perceived shortcomings of the Tung Chee Hwa administration.

The protest caused the government to put aside its pending National Security Ordinance two months later, an event regarded by all sides as a watershed for Hong Kong’s political environment. Demonstrators saw they could exercise power through collective action2, while Beijing noticed the role of political organizations in the process of mobilization and confrontation. Foreign influences were also noticed during the July 1 demonstration and in later elections. This new political environment was rather unexpected for Beijing, which had viewed Hong Kong as a place that had become politically-subdued territory during British colonial rule. The surprisingly broad-based resentments illustrated by the protest brought an end to the center’s former laissez faire policy and called for new thoughts.

Beijing prefers a gradualist approach to democracy in Hong Kong for two realistic concerns. For one thing, Hong Kong has been a city of immigrants for several decades, receiving different groups of dissidents due to World War II, the Cultural Revolution and the June 4th event of 1989. The large scale demonstration was directed not only against the SAR administration, but also targeted the center. If Beijing is not ready for a dissident-run SAR or a Chinese territory critical of and in confrontation with the central government, it must control the pace of constitutional development itself.

Another aspect of Hong Kong society that is troubling to Beijing is the international influence it is subject to, and the reality of sharing governance between Chinese and foreign nationals. Though under Chinese sovereignty, the rights to vote and stand for local elections in Hong Kong are granted to foreign nationals who meet certain residence requirements. Not only civil servants, but also judges, can be foreigners; only senior officials and the chief justice of the CFA and the president of the High Court must be Chinese nationals. This unique arrangement may have been a great mistake of the Basic Law, but the center can only make polices consistent with the Basic Law’s provisions. Consequently, universal suffrage in Hong Kong would be more complicated than for nation states where only its own citizens are eligible for elections.

In addition, Hong Kong’s political organizations have divided into two major camps: the pro-democracy camp and the pro-establishment camp. This division, however, has not brought stable balances among the parties. Most voters do not identify with any party, therefore political commitment cannot be expected from them. Thus a new political equilibrium may not be easily reached if the existing regime is given up.

Against this background, the central government decided to intervene directly in the constitutional decision-making process in response to the new challenges. This new policy was first evidenced in the process of the NPCSC’s interpretation of Appendix 1 and 2 of the Basic Law on April 6, 2004. Three days earlier, while the NPCSC deliberated the bill for interpreting Appendix 1 and 2, an assertion was made “unanimously by the members of the NPCSC” that ‘the Central Government has the power to determine the constitutional development of Hong Kong”,3 the first time that this opinion was claimed publicly and subsequently reported. On April 6, 2005, the NPCSC passed an interpretation, stating expressly that electoral reform that leads to universal voting for the Chief Executive and the Legislative Council could not take effect until approved by the NPCSC. Then, from April 7 to 9, Qiao Xiaoyang, Li Fei and Xu Ze, ministers responsible for Hong Kong issues, visited Hong Kong for a whirlwind tour. They held consecutive meetings on the interpretation of April 6 with the Hong Kong legal community and other representatives of all walks of society. The same aggressive remark was repeated again several times, and was offered as a fundamental principle in dealing with Hong Kong’s political system.

Since then, a new paradigm in the Beijing-Hong Kong relationship has taken shape. Its underlying theory is that powers are devolved from the central government to Hong Kong through the Basic Law. Therefore, there is no separation of powers, no inherent or residual power of the locality, and Beijing has final control. Through the Basic Law, the central government authorizes the legislative, executive and complete judicial powers. The NPCSC’s power to interpret the Basic Law is therefore the means provided to supervise the latter’s implementation, including implementation of the political systems as prescribed.

Since direct involvement replaced non-intervention, various forms of engagement also became necessary and even normal. For example, when the NPCSC’s 1999 interpretation (with regard to the Ng Ka Ling case) was made, only four Chinese scholars made public comments. In 2004, before and after the April interpretations were made, high ranking representatives from Beijing visited Hong Kong and communicated with local representatives, especially those from the legal community. In addition, for the Article 53(2) Interpretation of 2005, which affirmed that the term of office for the successor of a resigned/leaving Chief Executive shall be the remainder of the previous one, Qiao Xiaoyang and Li Fei visited Hong Kong on April 12, 2005, along with Zhang Xaioming, vice minister for State Council Hong Kong Office, and held meetings with the Hong Kong legal community. Then on April 21, 2005, more Hong Kong legal representatives were invited to Shenzhen for an informal hearing.

Particularly after the SAR failed to reconcile its internal political differences for the Fifth Report of the Constitutional Development Task Force in December 2005, the central government reaffirmed its role as the final decision-maker for Hong Kong’s constitutional development. This role reached its high point in 2007. At the 10th anniversary ceremony of the implementation of Basic Law, Wu Bangguo, chairman of the NPCSC, openly supported an executive-led constitutional structure for Hong Kong, in contrast to the parliamentarianism underlying the principle of the separation of powers.4 In the 2008 election, observers saw more of the influence of Beijing, with the allegation that Central Liaison Office took sides in the election. 

Future of the New Policy

To conclude, the “new” Hong Kong policy of Beijing has been forming for some time. It is a reaction to changes in Hong Kong’s own political environment since 2003. It is different from the old “well water does not interfere with river water” policy, in the sense that it emphasizes more central government engagement and involvement in Hong Kong’s political development. While the former policy gave more weight to the “two systems”, the more recent policy gives more weight to “one country.”

It is debatable, however, whether this policy actually will produce two establishment teams for Hong Kong. According to the Basic Law, it is unquestionable that the central government in a sense has the authority to govern Hong Kong, for example, by appointing major officials, announcing emergencies, reviewing legislation filed with the NPCSC and by interpreting the Basic Law itself. In principle, all these could be done without a team in Hong Kong.

Many observers who may prefer the old hands-off policy have noticed the dilemma of the new one. That is, in order to legitimately play a role in Hong Kong, Beijing’s only choice seems to be to support an executive-led government. This is because judicial power has been devolved completely, and it would be too complicated for Beijing to interfere in legislative elections. However, without public support of the executive through an election, an executive-led government could be paralyzed by the legislature and the judiciary. Of course, if the political environment in Hong Kong changes so that Beijing is no longer the target of local politics, Beijing may also withdraw from the arena. But until then, the natural and necessary choice for the central government is to support the executive, whether or not it is popular.

Jie Cheng is an associate professor of law at Tsinghua University in Beijing. During 2006-7, she was seconded to the National People’s Congress Standing Committee (NPCSC) to work on Hong Kong and Macau Basic Law issues. She has published several articles on the Basic Law of Hong Kong in law journals such as “China Legal Science”, “Legal Science Monthly” and “Tsinghua Journal of Rule of Law”.

07/01/2009