Post-Surrender Watch #1: Hong Kong’s Inexorable Slide Toward ‘One Country, One System’

(Washington, D.C.): The occasion of
the first official visit to the United
States of Tung Chee-hwa
since his appointment by Beijing to run
the Hong Kong Special Administrative
Region (HKSAR) is an opportune moment to
reflect upon the steady, if gradual, garrotting
of freedom in the former British
colony. As Tung’s meetings in Washington
precedes by one month a state visit to
the U.S. by Chinese President Jiang
Zemin, his sojourn also affords a chance
for President Clinton and the Congress to
telegraph a punch that needs to be
forcefully landed between now and next
month: The PRC’s inexorable
snuffing out of democratic institutions
and principles in Hong Kong must stop.

The Early Returns

Unfortunately, the need to state this
point as forcefully as possible has only
been increased by the message Tung
received yesterday from Secretary of
State Madeleine Albright and her deputy,
Strobe Talbott.⁽¹⁾
The Washington Post quoted State
Department spokesman James Foley as
saying yesterday that “U.S.
officials will tell Tung of the
‘satisfaction that we felt since the
handover in July with the fact
that Hong Kong’s autonomy continues and
there is a vibrant political and
media life in the area.'”
(Emphasis added.)

Even if accompanied by mild
remonstrations about the need to protect
democracy, the message to Tung could not
have been clearer: Washington has
no intention of rocking the boat with
China — neither with regard to Hong Kong
nor any other subject. It should
come as no surprise that Tung believes,
as he recently said when asked if the
Handover has been a success: “It is
going very well, indeed.”

In fact, there has been little-to-no
perceptible reaction from the United
States or other democratic governments to
the measures taken to date that are
steadily eroding the institutions and
political infrastructure essential to
genuine self-governance. To be sure, some
— although not all — of the
trappings of democracy have so far been
left in place⁽²⁾
and the economy appears robust.⁽³⁾
Still, the evidence of an ominous trend
is unmistakable in two areas: 1) the corruption
of a free and fair electoral process
and 2) the transfer of legal
authority from Hong Kong to Beijing.

‘Stacking the Deck’ on Next
Year’s Elections

On 15 August, the HKSAR government
published several much-anticipated
changes to Hong Kong’s election law.
While the announcement included detailed
plans to invest over U.S. $51 million
updating the Hong Kong voter register and
verbal guarantees of universal suffrage
by 2007, on the whole, the changes
clearly represent a blow to the cause of
democracy in Hong Kong. The pre-Surrender
(a.k.a. “pre-Handover”)
legislature allotted 20 seats to
geographical constituencies and 40 seats
to 21 functional constituencies
(professional and industrial groups).

The following are among the changes
the HKSAR government plans to effect to
govern next May’s elections:

• The 20 legislators elected by the
  geographical constituencies would
  be proportionally representative
  of the vote. This change
  virtually ensures minority groups
  — notably, the Communist Party
  — an increase in the number of
  seats they hold in the body, presumably
  at the expense of the largest
  faction represented in the
  Legislative Council elected in
  1995;
• An increase to 30 in the number
  of functional constituencies and
  decrease to 30 in the number of
  legislative seats they elect. According
  to an analysis published by the
  London Financial Times
  on 21 August 1997, this proposed
  change would disenfranchise over
  93% of the electorate — over 2.5
  million voters. Furthermore,
  having representatives of Hong
  Kong’s corporations and
  industries select the
  constituencies would ensure that
  elite groups will further dictate
  which legislators are chosen;
• The selection of 10 legislative
  seats by a newly formed Election
  Committee — indubitably
  comprised of pro-Beijing
  Loyalists.

Emily Lau, a
prominent proponent of democracy who lost
her seat when Beijing disbanded the
elected Legislative Council, concludes
that these changes will mean, “The
majority of the seats in the Legislative
Council will be dominated by the rich and
the powerful, and the pro-Communists, so
this system is fraudulent and
undemocratic.”

Erosion of the Rule of Law

According to the 1984 Sino-British
Joint Declaration, after the
“Handover,” Hong Kong’s courts
would adjudicate disputes based upon Hong
Kong’s laws without influence from
Beijing. Recently, in a critical test of
this commitment, the Hong Kong Court of
Appeal considered a legal
challenge to the Provisional Legislative
Council (PLC). Incredibly, the
three-judge Court of Appeal found that
the legality of the PLC — which was
appointed by the National People’s
Congress (NPC), China’s rubber-stamp
parliament — cannot be challenged
in Hong Kong’s courts.

Such a ruling may be “politically
correct” as far as the despots in
Beijing and their local proxies are
concerned; it is certainly not legally
defensible. On the face of it, there is
an obvious inconsistency between the
manner in which the current PLC was
appointed (i.e., by Chinese diktat) and
Article 68 of the Basic Law. This Law,
which was promulgated pursuant to the
Joint Declaration, requires that:
“The Legislative Council of the Hong
Kong [SAR] shall be constituted by
election.” (Emphasis added.)

Chief Judge Patrick Chan nonetheless
opined that:

“The PRC is the sovereign of
the Special Administrative
Region….The SAR cannot
challenge a decision and
resolution of the NPC….This
court has no jurisdiction to
question the legality of the
Provisional Legislative Council.
The PLC was validly appointed.
The appointments were ratified by
the NPC’s decision.”

Particularly worrisome was the precedent
created by the Court’s finding that any
political bodies the NPC constructs have
complete authority over Hong Kong and
that HKSAR courts do not have the
authority to examine any
decisions affecting Hong Kong reached by
the NPC or the bodies it sets up.

One of the most courageous opponents of
China’s efforts to crush Hong Kong’s
political and civil liberties, the
Democracy Party’s Martin Lee, has
summarized the implications of this
ruling:

“The whole object of having
a constitution is to define the
relationship between the Central
and SAR governments. If Hong Kong
courts can’t even interpret
whether an action is in
contravention of our
constitution, then how can
the Basic Law ever be enforced?
Once an example of what
free men can accomplish under a
fair legal structure, Hong Kong
could become little more than any
other city in China [if Beijing
succeeds in eviscerating the rule
of law].”

The Bottom Line

In 1995, Mr. Lee warned presciently of
China’s intent to dismantle the rule of
law in Hong Kong — a system which is
inimical to China’s communist party
dictatorship: “Hong Kong’s
fair and efficient legal system, the
bedrock of its economic success, is
earmarked to be one of the first
casualties when China takes over Hong
Kong on midnight, June 30, 1997.”⁽⁴⁾
It is deplorable that, having been
forewarned, the United States and other
Western nations have evinced so little
concern about this step when it began
following the Surrender.

Of course, none of these encroachments
can be said completely to have
corrupted the integrity of the rule of
law or the prospects for some form of
representative government in Hong Kong.
They have, however, begun to erode the
integrity and potency of these
institutions. If this trend is permitted
to continue, it is merely a matter of
time before the so-called “One
Country, Two Systems” formula morphs
into a long-feared “One
Country, One System” arrangement.
Such an evolution will be neither
consistent with the aspirations of the
people of Hong Kong, with America’s moral
obligation to express its solidarity with
those overseas who yearn for freedom or
with this Nation’s long-term strategic
and economic interests in East Asia —
interests diametrically opposed to those
of an increasingly emboldened, assertive
and powerful Communist China.

– 30 –

1. For other
examples of Talbott’s dubious handiwork,
see the Center’s Decision Brief
entitled Clinton Legacy Watch
#5: Welcome to the New Inter-War Era
(No. 97-D 129,
8 September 1997).

2. As Tung is
given to pointing out, demonstrations
critical of the actions being taken by
Beijing’s proxy government have, for the
moment, been allowed to continue to be
held.

3. There are,
however, some early warnings of trouble
for the Hong Kong economy, as the stock
market is increasingly dominated by
so-called “Red Chips” and
so-called H-Shares — equities of
mainland Chinese corporations believed to
have important “connections,”
and, therefore, access to a governmental
financial safety net. If, as seems
likely, these investments are giving rise
to a potentially explosive speculative
“bubble,” the repercussions
could be very serious for the economy of
Hong Kong to say nothing of other,
closely related regional markets that are
already reeling from the effects of
currency crises. It is instructive in
this regard that the Hang Sen index has
fallen some 9% over the past few weeks,
indicating that Hong Kong cannot insulate
itself from the growing financial
uncertainty in Southeast Asia.

4. Martin Q. C.
Lee, “Business and the Rule of Law
in Hong Kong,” Columbia Journal of
World Business, June 22, 1995. For
further discussion of the Handover and
the role Chairman Lee has played in the
fight for freedom in Hong Kong, see the
Center’s Decision Brief
entitled Martin Lee: Keeper
of the Flame, ( href=”index.jsp?section=papers&code=97-D_90″>No. 97-D 90, 30
June 1997).