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
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.