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
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