• Sun
  • Aug 31, 2014
  • Updated: 9:37am
Beijing White Paper 2014
CommentInsight & Opinion

With white paper, Beijing may have achieved the opposite of what it wants

Michael C. Davis says not only does the white paper raise doubts about Beijing's commitment to the rule of law, but its tough stance has also inflamed, not frightened, Hong Kong protesters

PUBLISHED : Monday, 16 June, 2014, 3:03am
UPDATED : Monday, 16 June, 2014, 3:03am

What is the purpose of Beijing's white paper on Hong Kong? Some argue that it is issuing a warning to unruly protesters. Others assert that this is nothing more than a progress report on "one country, two systems".

A careful reading of the text suggests, rather, an overriding purpose to say forcefully that Beijing is in charge. What will this mean for Hong Kong's rule of law?

Most striking in the report is the dramatic change of tone from 30 years earlier. When the Sino-British Joint Declaration was signed in 1984, Hong Kong people were told to put their hearts at ease. There would be "one country, two systems", Hong Kong people ruling Hong Kong, a high degree of autonomy and no change for 50 years.

The legislature was to be chosen by elections and the chief executive by elections or consultations. The common law was to be maintained and the courts were to be independent and final. These requirements were stipulated to be included in the Basic Law.

This agreement and eventually the Basic Law were taken to the capitals of the world where foreign governments were asked to rely on this guarantee of Hong Kong's high degree of autonomy in treating Hong Kong distinctively.

Now we are confronted with a white paper on Hong Kong, which, after repeating the above guarantees, tells us in no uncertain terms that Beijing is the ultimate authority, that "one country" is way more important than "two systems" and that foreign governments are to keep their noses out of Hong Kong affairs.

We are told the National People's Congress Standing Committee can interpret and amend the Basic Law as it chooses. In words reminiscent of Communist legality, the Standing Committee is even said to have "the power of supervision over the laws formulated by the legislative organs of the HKSAR". Beijing adds to this the rather threatening reminder of its power to declare a "state of emergency". A possible saving grace is the questionable legal impact of a white paper.

Can you have the rule of law under a government with unlimited power? Is not Beijing's power limited by the Sino-British declaration and the Basic Law?

Part I of the white paper plays down the solemn international legal commitments that underlie the Basic Law. The 12 articles of the joint declaration are introduced as "12 principles" that the Chinese government formulated before the joint declaration. The white paper acknowledges their eventual incorporation in the joint declaration but identifies them only as Chinese policies and not solemn international legal commitments. It thereby argues that the Basic Law and its interpretation is purely a domestic matter, allowing the central government the widest discretion in interpretation and amendment.

Some have argued that much of the content of the white paper had been interpreted or proclaimed before, that there is nothing new to worry about. For example, some would argue that the 1999 interpretation in the right of abode case already confirmed the ultimate power of the Standing Committee to issue binding interpretations. Restraint in exercising this power in the years since has, to some extent, mollified public concern over this potential interference with Hong Kong's legal system. The white paper's robust reassertion of the central government's absolute power over Hong Kong and Basic Law interpretation will surely again raise doubts about the rule of law and Hong Kong's autonomy.

The current debate over universal suffrage will test Beijing's commitment to the Basic Law. Will the next election of the chief executive deny the public a genuine choice? The white paper says very little on this topic, except at one point it characterises the current make-up of the Election Committee as "an expression of equal participation and broad representativeness". This challenges the widely held Hong Kong view that the Election Committee is not broadly representative and fails to provide equal participation.

Does this language signal an unrepresentative nominating committee? Could this be combined with a high nomination threshold to screen out pan-democrats?

The white paper raises doubts about the central government's commitment to the rule of law. Casting the Standing Committee as the primary guardian of the rule of law is not very reassuring. Proclaiming at the same time the Standing Committee's wide discretion to interpret and amend the Basic Law as it chooses poses a profound contradiction.

As noted by the Bar Association, the white paper's lumping of judges under the administrative branch of the Hong Kong government shows little appreciation of the independence of the judiciary. Expecting judges to be patriots, guarding national security, surely undervalues the calling of judges in the common law tradition as independent guardians of the rule of law.

It also ignores the fact that many of our judges are foreigners. Sufficient loyalty to constitutional requirements is generally thought to be adequately secured by the statutory oath of office.

Will Beijing succeed at sending a signal of disapproval to the allegedly unruly Hong Kong protesters? If this is the intent, then Beijing has clearly taken the wrong step. Emphasising that the central government is boss and holds all the power will only inflame Hong Kong resistance.

In a system where the rule of law prevails and official discretion is limited, resort to constitutional guarantees will be the primary mode of checks on poor government policies. If official discretion is broad, democratic institutions are non-existent and constitutional limits unreliable, the resort to political protest and even civil disobedience may be the only avenues for change.

The most effective way for Beijing to calm resistance is to assert less control, not more. The way to damp down protest is to uphold the solemn promises of the Basic Law and Hong Kong's autonomy, respect the city's tradition of the rule of law and implement genuine universal suffrage.

Professor Michael C. Davis, of the University of Hong Kong, specialises in constitutional law and human rights

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This article is now closed to comments

mpscottnzoz@yahoo.com
As much as lawyers (i.e. the Bar Association), legal academics should comment in a principled way by looking at all sides of every important question on which they seek to inform the public, rather than automatically reverting to prejudices or conspiracy theories. The public and anyone subjected to criticism need and deserve commentary that is fair and accurate, meaning that assertions whether positive, but particularly negative, should be backed by specified fact and argument. Neither the Bar nor Professor Davis has done that. The assertion that the White Paper lumped “judges under the administrative branch of the Hong Kong government” is contradicted by the paper’s plain and detailed contextual reference not to “administrators” (or executive officials) in the narrow sense, but to the government (or Administration) as a whole or generically, meaning the executive, legislative and judicial branches, comprising the CE, principal officials, members of ExCo and LegCo, and judges. Government of Hong by “Hong Kong people with patriots as the mainstay”, “loyalty to one’s country” and “safeguarding the country’s sovereignty” is no different than the allegiance which America expects of its states or Canada its provinces. For those Hong Kong people (permanent residents) working anywhere in the generic government who are not Chinese citizens, or those recruited from overseas, the equivalent of patriotism is simply respect for China’s sovereignty over Hong Kong.
Michael Scott
Tkorunner
To summarize, Beijing should take a look at Netwon's Third Law which tells us that action equals to reaction
captam
@"Expecting judges to be patriots, guarding national security, surely undervalues the calling of judges in the common law tradition as independent guardians of the rule of law."
Why not publish this question in a leading British newspaper where their country's Court of Appeal has just ruled that cases where "national security is threatened" may be heard in secret proceedings.
The public now only gets to hear the defendants' names and afterwards that they have "gone down" for life or whatever. Who decides who is a "threat" to the nation? Dependable and honest Prime Ministers like Tony Blair?
If Britain's ('common law tradition') judges are now expected to guard the country's national security, I don't see this as a problem for judges in Hong Kong!
And if Hong Kong judges have a problem recognizing and accepting who their Sovereign government is, they should no longer be sitting on the bench.
537865cc-c880-4b6d-9e54-08e50a3209ca
Why is Britain the litmus test? Britain abused chinese people, does this mean China needs to abuse us as well?
321manu
I'm not so sure Beijing had any desire to "calm resistance". Rather, I think the intent was to bare its teeth, strike some fear into some hearts, and emphatically dare HKers to put up resistance by making thinly-veiled threats.
As I've said before, BJ could've rammed through useless window-dressing "reforms" and ended up with a perfectly good CCP stooge as CE, all the while completely ignoring HK public sentiment. The net effect would be the same. However, she chose to not only do so, but to proclaim her intent loudly and bluntly besides. One needs to ask why she chose the far less subtle approach, and the only logical conclusion is that she didn't care about rousing resistance, much less calming it. To suggest that the current reaction took BJ by surprise would be implying them to be historically colossally stupid, and even I don't think they're quite that dense.
As for rule of law in HK, kiss that goodbye. The CCP's rule of law will now be HK's rule of law, and the latter will be as much of a myth as the former has been since 1949. The "profound contradiction" to which Mr. Davis alludes aptly sums up the bleak outlook for HKers.
The NPC oversees the law, but can also interpret the constitution in whatever way it likes. Judges are administrators whose first job is to heed the wishes of the NPC, law be damned. The NPC is now judge/jury/executioner all in one. HK, congrats on formally becoming just another Chinese city. So sad.
honger
"The most effective way for Beijing to calm resistance is to assert less control, not more."
But Mr Davis, this is China not the US where "less control" lead to mindless massacres in schools and universtiies, just to quote an example. Lest we forget, "less control" due to an inept and weak Ching govt lead to total chaos, plunder and rape of the country by foreign powers just 100 years ago. The whole country was torn asunder, families were broken up, whole generations of people did not get to enjoy normal lives.
I suppose staying in this city makes one lose the perspective sometimes. Hong Kong is just another city to China, but China won't stand for it if it develops into a centre for dissent and interference in Chinese rule. Beijing already discounted the backlash that you wrote about and went ahead to issue a reminder of who is in charge because at the end of the day, Hong Kong is just another city. They can deal with the protests. They have dealt with worse than the benny tais and long hairs ........But they cannot let the sovereignty and interests of the country be challenged by exerting "less control," as proposed by you and others.
Your prescription - like those advocated by the pan dems - will only slow down the advent of democracy in this city and the rest of China. The more you shout in the streets and challenge Beijing outright, the tighter the doors will be closed.
537865cc-c880-4b6d-9e54-08e50a3209ca
And the tighter you close them the greater the force that eventually rams them in. Slow piecemeal reforms can help to avoid huge painful ones down the road.
It was not control the Qing lacked which led to defeat, it was stagnation, disparity in power, inability to common Han chinese loyalty due to discrimination and fear of them, inability to reform and modernize.
Clearly demarcated areas of authority for both sides does not mean less control. Obviously certain areas should and must remain the preserve of central government. But what the PRC wants is to be able to screen every single event and bill. The crude way she goes about it to prevent Hong Kong running off the leash is ironically driving her further away.
ejychan@connect.hku.hk
Good article.
pslhk
Any student in HK with Form 3 (G9) algebra
given the outdated formula
hk autonomy = democracy = 1p1v + RoL + JI
and the dogmatic delusions of RoL and JI
can over-understand the irrelevant platitude
for which the legally bewitched professor
belabored so much of his spinal power
to perfect the legalistic art of prolixity
-
Modern democracy has become threadbare
two centuries after it became prevalent
with lobbyists replacing prostitutes as influence peddlers
in K Street, the capital of western democracy
-
And the yellow scalps,
the colonial symbol of JI
if real history is told
was originally meant
to cover up the symptom of pox
-
To HK’s copycat democrats
M Davis is offering his very original idea
Holy Gautama, Mohamed and Christ
a runner in dean Johannes stable
C'est l'academic independence in action
Caveat emptor HK law students
Get real and read G Maxton
Dai Muff
You do realise almost no one wades all the way through your verbiage?

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