• Mon
  • Dec 22, 2014
  • Updated: 8:00am
Beijing White Paper 2014
CommentInsight & Opinion

White paper fails with its lopsided view of 'one country, two systems'

Simon Young says the main problem with the white paper on Hong Kong - a political, not legal document - is its failure to study the full facts of the practice of the policy

PUBLISHED : Tuesday, 17 June, 2014, 5:15pm
UPDATED : Wednesday, 18 June, 2014, 2:19am

By running the State Council's recent white paper through anti-plagiarism software, one finds a similarity index of appropriately 29 per cent. This means that close to a third of the text (albeit mostly in small chunks) can be found in sources already in the software's database.

It confirms the common reaction that the document does not tell us much new.

The software's colourful report readily reveals the non-highlighted parts representing original writing, such as those concerning foreign affairs, defence and the central government's efforts to ensure the prosperity and development of Hong Kong. These parts are original and worth reading. The other parts, such as those concerning the Basic Law and governance, are all too familiar.

The point of this exercise was not to fail the report for plagiarism. Rather, it fails in another way, by not providing a complete description of the practice of "one country, two systems", warts and all. Its presentation is "lopsided", to borrow language from the paper. It overemphasises progress measured in terms of financial figures and shows no awareness or insight into the degree of social discontent and division within Hong Kong.

The most obvious shortcoming is its failure to confront the serious governance problems that have persisted and grown worse since 1997. One finds sugar-coated phrases like, the Hong Kong government "worked hard and overcame difficulties" and "promoted the development of all undertakings and made new achievements one after another".

There is no mention of the incompetence of the first administration, which ended with the chief executive resigning in the midst of low public and later low central support. And there's no mention of the integrity problems with the second administration. One has to think hard to identify those key officials said in the paper to have been "dismissed" by the central government, but perhaps this included the few who resigned.

It shows no insight into how the current administration, with its low public support and high public distrust, is going to achieve political reform. The use of the interesting phrase "defusing risks" is not applied to the ever-increasing street protests including Occupy Central, which seems likely to lead to hundreds of thousands in the street if the authorities crack down on the protesters.

In warning against foreign interference in Hong Kong's affairs, the paper fails to mention that the Basic Law also prohibits central government interference in affairs which Hong Kong administers on its own (Article 22). The same test of interference and degree of tolerance should apply to opinions expressed by both foreign governments and organs of the central government.

The paper's poor attention to consistent and proper usage of legal terms and references strongly suggests it was not written by lawyers or intended to have any legal influence.

No competent government lawyer would allow the English text to refer to the "chief justice of the High Court" and then later the "chief justice of the Court of Final Appeal" and "chief judge of the High Court".

The reference to the "broadly representative Conference for Electing Deputies of the HKSAR" to the National People's Congress, if taken seriously, would cause serious alarm to those who still hold out hope for genuine universal suffrage. Hong Kong lawyers will not flock to cite the Chinese constitution in legal submissions, merely because the white paper says the constitution is "applicable" in Hong Kong; they know better because Article 18 of the Basic Law keeps out Chinese laws even if it is the constitution.

The Hong Kong Bar Association, though right to be the first to condemn the reference to judges as administrators, overestimated the importance of the document for law. Ironically, the top judges of each court are administrators in the administration of justice; they are not administrators of the executive branch. The white paper was always meant to be a political document serving political goals; it should not be taken as having any impact on the legal norms that govern "one country, two systems" in Hong Kong.

The paper, however, has statements of values that are worth underlining. It refers to Hong Kong as a "free, open and pluralistic society" and Hong Kong people as having "fine traditions of inclusiveness, mutual support and respect for the rule of law and order". There is truth in these statements and the Hong Kong government must work harder to protect these basic values.

As teachers, we instruct our students to seek truth from facts, both good and bad. In responding to what it perceived to be a one-sided approach to "one country, two systems", the white paper gave us another one-dimensional perspective. This is not the way to solve the many deep-rooted problems in Hong Kong society today.

One must start by confronting the truth, however unbearable, and understand the causes of the current discontent. There must be an honest understanding of where the "one country, two systems" policy has failed and a collaborative examination of how current problems can be addressed without repeating past mistakes.

Simon N. M. Young, a barrister, is a professor in the Faculty of Law at the University of Hong Kong


Related topics

For unlimited access to:

SCMP.com SCMP Tablet Edition SCMP Mobile Edition 10-year news archive



This article is now closed to comments

Nice article. I would agree with Mr. Young that the white paper manifests as a political document rather than a legal one. The problem is whether those two concepts are as disparate and unique as Hkers would like, or have grown accustomed to. My fear is that the process has already begun whereby the former usurps the latter. And it's completely embedded in the CCP DNA for that to be the case.
I have reservation on this article and more so, on Mr Young's claim on teaching students to seek truth from facts, both good and bad.
Words lie but actions are always true. The article shows the consistency of Mr Young's a one-side approach. As always, he only pick on the Government and talk about the bad. The control of milk powder, a ban on Mainlanders giving birth in Hong Kong are examples of good measures which were never mentioned.
What about the facts? The fact is that Hong Kong is part of the PRC and Hongkongers must observe The Basic Law. The White Paper is just a reminder, nothing new.
Regrettably some individuals like Mr Young chose to impose their own interpretation of The Basic Law and arouse discontent in the society. Those influenced act irrationally.
As a mother, I am worried about our children being influenced by teachers with such negative and crocked mindset. Students can easily be manipulated.
As a Hong Kong citizen, I regret to see certain Legislative Counsellor acting inappropriately at meetings, threw objects, shouted and even swear at whoever's not taking their side. It is a disgrace having people like these representing Hongkongers.
Hong Kong has law and order in the past, nowadays, the HK Government is just too afraid to take appropriate action against people who break the law.
We the majority are eager to see the restore of law and order in HK.

@"the paper fails to mention that the Basic Law also prohibits central government interference in affairs which Hong Kong administers on its own (Article 22)"
But Article 22 DOES NOT STATE THIS ! You have misread it.
It states only "No DEPARTMENT" of the of the Central People’s Government (CPG)... may interfere in H.K. affairs". This, therefore, imposes a restriction only on subsidiary units of the Central Government and not on the CPG itself, which retains supreme sovereignty and control over Hong Kong.
If the drafters of this legislation intended that even the Central People's Government may "not interfere" , they would not have included the word "department". This clause would have been simply "the Central People’s Government may not interfere in the affairs of Hong Kong"........ but is doesn't say this !
Go back to law school!
Yes, the White Paper's significance to Hong Kong is in no way undermined by its being a political document, for the law is a mere instrument in CCP thought.
An excellent, lucid commentary. Professor Young's students will serve Hong Kong well.
Finally we have a great legal mind writing an article about the white paper rather than some ignorant columnist. I couldn't agree more!
Ant Lee
thanks for the effort in analysing this white paper. but i think no one in HK would expect this white paper to have any substance and most would think this white paper is just another piece of propaganda junk from the mainland.
SY’s self-portrait caricature
depicting him reading the White Paper
speaks clearer than his words
which are virtual reiterations
of Joshua Wong’s sermons.
It’s funny enough that a common law scholar ism
should refer to some anti-plagiarism software for “argument”
and funnier still that he should apply it to a reminder
My sympathy for a very unhappy alum
with a child studying “law” as a second major at hku
He woud rather junior pursued Harry Potter
Simply incredible
Such a school of deluded and deluding fools
preoccupied with the art of in the box “thinking”
using their …
No wonder why hk barristers,
reasonably pereived as laughingstocks abroad,
are never employed in any of the city’s major cases
The White Paper cannot be classed as plagiaristic when it is simply a succinct reminder by the Central Government itself of the policies and constitutional law that underlie its visionary concept of “one country, two systems”. Nitpicking editorial issues such as referring to the chief justice (rather than chief judge) of the High Court cannot be elevated into a misunderstanding of judicial independence or any other substantive treaty and constitutional requirements. Being principally a helpful policy and legal document that emphasises the positive, it would have been inapt for the paper to embark on a critique of the performance of the Hong Kong Special Administrative Region Government since 1997. Nor does the paper provide any basis for the paranoid obsessions expressed by its critics.
Michael Scott
A professorial grading of a term paper, this article shows zero grasp of the central issue of the White Paper: governance.



SCMP.com Account