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Who’s the Boss?: China’s White Paper on Hong Kong

posted Jul 8, 2014, 8:00 PM by The Tibetan Political Review   [ updated Jul 10, 2014, 12:49 PM ]
 
By the editorial board of The Tibetan Political Review 




On June 10, 2014, China released a White Paper on Hong Kong’s regional autonomy known as “one country, two systems.”<FN1>  Much of the White Paper was filled with economic statistics of the region and self-congratulating statements about how much China has helped the Hong Kong Special Administrative Region (HKSAR) since Britain handed it back to China in 1997.  As with many Chinese white papers, this document contained glowing hyperbole like “‘one country, two systems’ policy enjoys growing popularity in Hong Kong, winning the wholehearted support from Hong Kong compatriots as well as people in all other parts of China [and] is also thought highly by the international community.”  However, the White Paper also made some startling and troubling statements about the limits of the HKSAR’s autonomy and democracy.  Indeed, the White Paper even notes that some Hong Kong residents are “confused and lopsided in the understanding of ‘one country, two systems’.”  This editorial focuses on some of these statements that sent shockwaves throughout Hong Kong, and the brave reaction of some Hong Kong residents.<FN2>


Hong Kong’s autonomy is limited


The HKSAR’s autonomy was promulgated pursuant to Article 31 of the Chinese Constitution which states that China “may establish special administrative regions when necessary.”
<FN3>  Although the White Paper describes the HKSAR as enjoying a “high degree of autonomy,” it also points out that this does not mean full autonomy nor decentralized power.  The autonomy is also limited in time to 50 years from 1997, as we pointed out in a previous editorial, which suggests that China is merely using autonomy as a temporary tactic to ease Hong Kong back into the “motherland”.<FN4>

China views “one country, two systems” as a limited concept in which Hong Kong’s autonomy is delegated by Beijing and not an inherent power.  This means, of course, that China can expand or restrict Hong Kong’s autonomous powers and freedoms as it wishes because Hong Kong does not have an inherent right to autonomy.  Autonomy is a privilege granted by Beijing, and like all privileges, it can be revoked or modified.  Moreover, an investigation by Reuters revealed that the Chinese government quietly operates a “Shadow Cabinet” in Hong Kong (the Liaison Office), without which the Hong Kong government cannot take any major action, and which exerts its power in a myriad of hidden ways.
<FN5>

China’s White Paper points out that the most important thing in “one country, two systems” is upholding China’s sovereignty.  The White Paper explicitly states that “two systems” is subordinate to the “one country” principle.  This means that China will allow the HKSAR to have capitalism, limited democracy and autonomy (for 50 years) but Beijing reserves the right to take action to protect China’s sovereignty and the “unity” of the nation wherever and whenever China feels it threatened.

Such actions could be directed at perceived threats from Hong Kong residents who protest against China or the Communist Party.  Official Chinese commentators have noted that the People’s Liberation Army garrison in Hong Kong could be mobilized if necessary.  In a conflict between China’s “sovereignty” and Hong Kong’s “autonomy,” Beijing makes clear the winner will always be China’s sovereign rights and powers.


Beijing is the court of final appeal

The Basic Law is the HKSAR’s mini-constitution and governs the administration of the HKSAR.
<FN6>  Under the Basic Law, Hong Kong’s courts have jurisdiction over all local civil and criminal laws (except as to defense and foreign affairs) and the right of final adjudication.  China allowed Hong Kong to retain the common law system that Britain had used in its former colony, including the concept of judicial independence.  However, the White Paper reiterates the Standing Committee of China’s National People’s Congress (NPC) has the right of interpret and amend the Basic Law and this includes the right to review judicial decisions by Hong Kong courts that may interpret the Basic Law.  The White Paper calls upon Hong Kong courts to consult the NPC Standing Committee before making any decisions on interpretation of the Basic Law.

Essentially, this means that Hong Kong’s highest court, the Court of Final Appeal, does not have the final word on cases that interpret the Basic Law.  Instead, the NPC, or its Standing Committee, can overturn decisions by Hong Kong’s courts.  Since the NPC is a rubber-stamp parliament that is subordinate to the Party, ultimately the final decision on the Basic Law governing Hong Kong rests with the Chinese Communist Party.  Beijing will effectively interpret and decide any cases concerning the Basic law and Hong Kong judges are being told to take that into account.  The White Paper called into question the judicial independence of Hong Kong judges, which sparked protests by Hong Kong lawyers.
<FN7>


Only “patriotic” citizens need apply


Perhaps the most troubling provision of China’s White Paper is the section which states that above all else, the people who govern Hong Kong should be “patriotic” and “love the country.”  In fact, the White Paper explicitly states “loving the country is the basic political requirement for Hong Kong’s administrators.”  If they are not patriotic or cannot be loyal to China, then the HKSAR will deviate from the right direction and put Hong Kong in jeopardy, according to the White Paper.  This is a clear signal that Beijing will only tolerate “loyal” subjects to rule Hong Kong and, of course, China means loyal to the Party.

Beijing has promised Hong Kong full universal suffrage by 2017 (20 years after China took over Hong Kong).  While the White Paper states that Hong Kong citizens will be allowed to directly elect their Chief Executive in 2017, it also states that the chief executive “must be a person who loves the country and Hong Kong.”  This means that Beijing will control the roster of candidates and must pre-approve the list of candidates for chief executive.  If Beijing does not approve a candidate for chief executive, or if Beijing decides Hong Kong’s chief executive is not “patriotic” enough, Beijing could nullify his/her election or remove him/her from office.


But Hong Kong Residents Fight Back, For Democracy



How have Hong Kong citizens reacted?  An estimated 800,000 Hong Kong residents participated in an unofficial vote on a more democratic process in choosing the city’s top officials.  On July 1, a half-million Hong Kongers calling for democracy blocked streets in the central business district.  Demonstrators invoked the French Revolution by chanting “Do You Hear the People Sing”, and their banners read “We don’t want communism in Hong Kong” and “Say No to Communist China”.<FN8>

According to Time Magazine, these protesters are “politically sophisticated and well-educated citizens [who are] are outraged that they still have to agitate for these issues to be addressed, instead of being allowed to resolve them through a genuinely democratic legislature and through a leader who has a popular mandate.”<FN9>

The New York Times quoted one young protest leader as saying, “We believe to change society, we need not our words to appeal to politicians, but to use activism to pressure them.”  Another leader was quoted as saying, “If the government refused to seriously consider the demand, this group of people, more of them will change from sympathetic to active support, and the sympathetic people may also start all kinds of noncooperative actions.  And just think about, how can a government govern if the whole society refuses to cooperate with you.”

The people of Hong Kong are struggling with important issues: democracy versus communist party rule, their identity as Hong Kongers versus Chinese citizens, and how to protect their way of life from an authoritarian government in Beijing that is intent on eroding as many basic freedoms as it can get away with.  Fortunately, it appears that many Hong Kong residents are becoming inspired to stand up for what they believe in, regardless of the demands and threats from Beijing.




What does this mean for Tibet?

China does not offer Tibet the “high degree of autonomy” given Hong Kong, which is based on Article 31 of the PRC Constitution.  Tibet’s nominal autonomy is based on Article 4 of the PRC Constitution
<FN10> and China’s Regional Ethnic Autonomy Law (REAL).<FN11>  Under the REAL, Tibet is given far less autonomy than Hong Kong.  For example, China has never promised Tibetans they could one day elect their regional leaders and clearly Tibetans enjoy far fewer freedoms than Hong Kong residents.  So China’s White Paper on Hong Kong may have limited relevance to Tibet because China is disinclined to give Tibet the expanded autonomy and freedoms that Hong Kong currently enjoys.

Additionally, as we noted in our recent editorial, the current Central Tibetan Administration (CTA) leadership is not actually seeking the substance of Hong Kong-type autonomy because the CTA renounces democracy for Tibet and accepts the current structure of Communist Party rule in Tibet (the Partial Middle Way).
<FN12>



Interestingly, one unintended benefit of the Partial Middle Way being so vastly short of the autonomy practiced by Hong Kong is that it gives a perfect rebuttal to China's claim that it represents "covert independence."  If China accepts Hong Kong's relatively greater "high degree of autonomy" (in China's own words), then it is hard for China to have a principled objection to Tibet seeking far less.  Or at least, China might reject it on other grounds, but it is impossible to seriously consider the Partial Middle Way as "covert independence" if Hong Kong remains part of China with far more freedoms.

Although the Partial Middle Way asks for less than the substance of Hong Kong’s autonomy, the current CTA leadership has at times stated that Article 31 of the PRC Constitution could apply to Tibet (although China has expressly rejected this proposal).
<FN13>  If Article 31 is relevant, then naturally China’s views on Hong Kong’s autonomy are extremely relevant.  China’s White Paper on Hong Kong’s autonomy sheds light on how China views this form of autonomy and the “one country, two systems” formula.

Assuming for the sake of discussion that China were to give Tibet a “high degree of autonomy” similar to Hong Kong, it would surely be with the same limitations.  Such autonomy could be revoked or constrained at any time, and there would be no independent enforcement mechanism.  Tibet would likely have no more ability to enforce the deal than it did in the 1950s under the Seventeen Point Agreement.  China would have the right of final review on any cases concerning Tibet’s autonomy, and the Communist Party would make sure only “patriotic” and “loyal” Tibetans could govern Tibet.

Regardless of what form of autonomy the CTA is seeking for Tibet, China’s White Paper on Hong Kong should give Tibetans some concern.  A realistic look at this issue presents an opportunity for those who care about Tibet’s future to be clear about the hard choices that various approaches involve.  If the dialogue between China and the CTA resumes, the Tibetan side should take care to address these issues in detail.   Such an honest, pragmatic conversation about the practical challenges of various policy options would greatly improve the democratic culture in Tibetan exile society, and would likely lead to better decision-making as well.

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FOOTNOTES

1. http://news.xinhuanet.com/english/china/2014-06/10/c_133396891.htm.  Alarm in Hong Kong at Chinese white paper affirming Beijing control, http://www.cnn.com/2014/06/11/world/asia/hong-kong-beijing-two-systems-paper/.

2. http://english.people.com.cn/constitution/constitution.html.

3. http://www.tibetanpoliticalreview.org/editorials/dimsumsurprisewhythehongkongmodelwontsavetibet.

4.  http://www.reuters.com/article/2014/07/01/us-hongkong-china-specialreport-idUSKBN0F62XU20140701

5.  http://www.basiclaw.gov.hk/en/basiclawtext/index.html.

6.  Hong Kong Lawyers in Mass Silent Protest over China’s White Paper, http://www.rfa.org/english/news/china/silent-06272014145550.html

7.  http://www.washingtonpost.com/world/hong-kong-marches-holds-referendum-in-protest-of-chinese-control/2014/07/01/dc933f8c-00fb-11e4-8572-4b1b969b6322_story.html and http://www.nytimes.com/2014/07/02/world/asia/hong-kong-china-democracy-march.html?_r=0

8.  http://time.com/2948545/hong-kongs-people-are-left-wondering-how-long-they-will-have-to-wait-for-genuine-democracy/

9.  http://english.people.com.cn/constitution/constitution.html.

10.  http://www.cecc.gov/resources/legal-provisions/regional-ethnic-autonomy-law-of-the-peoples-republic-of-china-amended.

11.  http://www.tibetanpoliticalreview.org/editorials/apartial-middlewaycampaignislaunchedindharamsala.

12.  http://tibet.net/2013/08/25/lobsang-sangay-tibets-prime-minister-in-exile-rallies-tibetans-in-portland-2/. See also the Sikyong’s comments to the Council on Foreign Relations “That is -- that is what we seek. Now, you raised a very important question, whether Hong Kong be a solution. As per Article 31, a specially administrated region is allowed in the Chinese constitution based on that -- basic law was drafted, and one country, two system was allowed. And that is allowed for Macau. Hence, what I say is that Tibet is not a constitutional challenge for China, because there is already a constitutional provision -- Article 31. . ..” http://www.cfr.org/tibet/conversation-sikyong-lobsang-sangay/p30679.




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