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  • Dec 20, 2014
  • Updated: 11:13am
Universal Suffrage
CommentInsight & Opinion

Hongkongers will not accept Beijing's idea of a patriot

Surya Deva says Beijing's definition of a patriot, in the context of Hong Kong's chief executive, is at odds with many Hongkongers' understanding of the term, while also contradicting China's own constitution

PUBLISHED : Tuesday, 26 August, 2014, 5:26pm
UPDATED : Wednesday, 27 August, 2014, 2:54am

Amid growing fears that the National People's Congress Standing Committee might cage the universal suffrage aspirations of Hongkongers, Li Fei, chairman of the Basic Law Committee, said last week that "the person who governs Hong Kong must be a patriot" in order to safeguard national security. Several other pro-Beijing stakeholders have also insisted on the "love the country" requirement for the chief executive.

On the face of it, such requirements should not be controversial. They appear to be so basic for all political leaders that one hardly talks about them in debates on political reform. Nor do we generally find such requirements stipulated expressly in constitutional documents.

But the devil is in the detail. One could be a patriot, but still criticise the government and political system of one's country. In fact, as history tells us, loving, supporting and defending one's country may sometimes demand challenging the government or party in power.

However, it is quite clear that Chinese leaders attribute to "patriot" and "love the country" a meaning different from how these terms are commonly understood. The central government wants a democratically elected chief executive of Hong Kong who neither criticises anything going on in mainland China nor questions its actions or policies aimed at subtly undermining Hong Kong's high degree of autonomy.

If Beijing has such a definition of "patriotism" in mind, then millions of Chinese living in Hong Kong might have to be labelled unpatriotic. Such a definition also does not take into account the evolution of complex national identities because of migration in a globalised world.

More worrying is the fact that the Chinese definition of being a "patriot" and "loving the country" will be inconsistent even with the explicit text of the People's Republic of China's constitution. Article 41 says citizens "have the right to criticise and make suggestions to any state organ or functionary. Citizens have the right to make to relevant state organs complaints or charges against, or exposures of, any state organ or functionary for violation of the law or dereliction of duty."

Such a requirement will also open a Pandora's box. Beijing expects Hong Kong's chief executive to be a patriot who "loves the country and Hong Kong". But will it be acceptable to elect a racist, a religious fundamentalist or a corrupt person? What about electing a political leader who believes in the communist ideology?

Safeguarding national security is a legitimate goal. However, national security should not be used as pretext to deny genuine choice to Hongkongers in electing their chief executive. Nor should Beijing try to employ unconstitutional means to attain a legitimate goal.

The Basic Law does not require that the chief executive should be a patriot and love the country beyond what is implicit by its provisions, such as that he or she must abide by the Basic Law (including the "one country, two systems" principle) and bear allegiance to the Hong Kong SAR of the People's Republic.

Imposing any additional or unreasonable requirements for the chief executive election - even if it is done by a decision/interpretation of the NPC Standing Committee - would be unconstitutional. The powers of the NPC or its Standing Committee vis-à-vis the Basic Law are not absolute or unqualified. Preserving "one country, two systems" requires that their powers are read subject to express and implied limitations within the framework of a shared constitutional space.

It is also likely that the goal of preserving national security by screening out pro-democracy candidates would prove ineffective, because a pro-Beijing candidate who has the overwhelming support of an undemocratically constituted nominating committee may well not have public legitimacy.

Political leaders can get away with being elected through closed-door, small-circle elections in mainland China due to the democratic deficit. But it will not be possible to achieve the same outcome in Hong Kong with our Basic Law-entrenched freedoms, a free media, robust civil society and independent courts.

Political instability and divisions in society would be likely to engulf Hong Kong if the central government tried to institutionalise a system that ensures the election of a dummy chief executive lacking democratic legitimacy. So the means employed by the central government may in fact prove counterproductive.

Rather than having a myopic vision, Chinese leaders should show foresight. Similar to the experiment with establishing a special economic zone in Shenzhen in the 1980s, Beijing should regard Hong Kong as a special political zone to introduce and experience democracy. Lessons learned from this experiment could then be applied to other parts of China, with appropriate modifications. The central government should try to look beyond the images painted by its loyalists.

Those who wield power should exercise it with caution because illegitimate and unfair actions invariably invite radical reactions.

The Standing Committee would do well to keep this in mind and realise that national security interests could be served even with a democratically elected chief executive governing Hong Kong.

Surya Deva is an associate professor at the School of Law of City University of Hong Kong

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This article is now closed to comments

56
China is afraid. Always will be. It does not and cannot trust its own people in fear of losing its complete grip over society. Must censor, must repress. No freedom of thought. One needs not look past its own flag as a symbol of its intentions. The biggest star is the Communist party. Enough said.
chaz_hen
Zhou Yongkang, Bo Xilai, Lai Changxing, Lin Biao, Chen Liangyu, Jiang Qing: Patriots until the very end. Eligible to be HK CE?
serpiente
Superb analysis
gary.stainton
Loving China and loving the Chinese Communist Party are not necessarily synonymous. "There are none so blind as those that cannot see."
ianson
The logic and reason in this excellent analysis is lost on the brutal thugs at the helm in Beijing for, as Deva reveals, they treat Article 41 of their own constitution as toilet paper. The next phase in this saga is Beijing ruling Hong Kong by fear alone because the law will go straight out the window with the NPCSC's pronouncement. Their blatant threats against OC (through Police Commissioner Tsang and others) will be followed by actual violence against the protestors, including serious injuries and even deaths, scaring Joe Average into submission, while continuing to operate the levers of power to favour all those who toe the Party line, with the rich rewards that follow for them. One City, Two Cultures, headed for disaster.
icsl
Like Benny Tai, Surya has bias view on NPC:
"The central government wants a democratically elected chief executive of Hong Kong who neither criticises anything going on in mainland China nor questions its actions or policies aimed at subtly undermining Hong Kong's high degree of autonomy."
This is not an analysis, simply expression of personal view based on Surya's perception.
If one look at the situation from a comprehensive perspectives, legally, socially, economically, politically, practically and so on, one will see a clearer picture and agree that rights given under the Basic Law is appropriate and works best for Hong Kong.
All heads of country or cities have to vow to love their country, to perform their role well, this is a basic requirement.
It is therefore logical and reasonable to expect CE of Hong Kong to love China. Anyone with common sense can understand this simple correlation.
Law professors like Benny Tai and Surya Deva thought they knew better, tried to teach NPC what to do, influenced students to fight for their ideal reform. As Jimmy Lai said, they are just scholars with no idea. It is a shame to see so many followers unknowingly became puppets for the master-mind behind whose real aim is to arouse social discontent in Hong Kong, not democracy.
kctony
Not all other countries ask their citizens to kiss *** and obey.
Most countries are tolerant with criticism by its citizens, like the US, Canada, UK, Australia and most of Europe.
Those who ain't tolerant are the likes of Iran, Iraq, Lybia, etc.. You have lined up China with these countries.
"The Ugly American" was a bestseller and a highly acclaimed film in the USA.
"The Ugly Chinese" was banned in China. So were Zhang Yimou's earlier works.
virokick
Experiment and applied in some parts of China- yes to risk producing an India with democracy.
Shenzhen free economic zone had economic freedom not political freedom at any point.
I'm not intending to sound cynical, but I would have expected better from a professor.
Paradox314
Well said!
acny
How can you love a country that does not allow her own citizens to choose their own leaders?

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