Hong Kong Basic Law

Hong Kong must protect its high degree of autonomy to ensure ‘one country, two systems’ remains effective

Cliff Buddle says any mainland interference in local affairs does the city – and the credibility of mainland authorities – no favours

PUBLISHED : Tuesday, 14 February, 2017, 4:52pm
UPDATED : Tuesday, 14 February, 2017, 7:08pm

The race to become Hong Kong’s leader officially began today when nominations opened. But, with many of the almost 1,200 voters rushing to pledge their support for the candidate understood to be Beijing’s favourite, we can be forgiven for believing the result is a foregone conclusion.

Carrie Lam Cheng Yuet-ngor appears to have already secured the 150 nominations needed to stand and is the strong favourite. Yet a recent poll commissioned by this newspaper showed her to be currently less popular with the public than her rival John Tsang Chun-wah. The apparent role of the central government in favouring and lobbying support for Lam among members of the Election Committee, which nominates and selects the leader, has raised fresh questions about interference by Beijing in the city’s affairs.

Beijing’s backing both a curse and a blessing in Hong Kong leadership race

It comes at a time of growing concern that the high degree of autonomy Hong Kong enjoys under its de facto constitution, the Basic Law, is being undermined. The disappearance of booksellers from Hong Kong last year – and more recently a tycoon – and their reappearance on the mainland to help authorities there with investigations also suggests a blurring of the boundaries between the mainland’s system and that in Hong Kong. No wonder one candidate, former judge Woo Kwok-hing, is proposing a new law to make interference by mainland officials a criminal offence.

Woo makes an interesting point. Much has been said about Hong Kong’s duty to pass national security laws under Article 23 of the Basic Law, to protect the country. But the preceding provision, Article 22, seeks to safeguard the city’s separate system. It prohibits mainland authorities from interfering in affairs Hong Kong administers “on its own” and requires them to abide by the city’s laws.

The word “on its own” appears 20 times in the Basic Law, applying to either Hong Kong, its government or, in one case, its legislature. It underpins the “one country, two systems” concept governing the city’s relationship with China. If Hong Kong’s high degree of autonomy and separate system is to be maintained, it must be free from interference.

Watch: John Tsang pledges to revisit Article 23

John Tsang – the most imperfect of our imperfect leadership hopefuls

It would be naive to suggest that mainland officials have no interest in or opinion on the outcome of the election. Through the chief executive, the central government can influence policy in the city. The leader is accountable to the central government as well as to Hong Kong. While the chief executive is elected in the city, it is the central government who appoints the successful candidate. It is now generally accepted that Beijing can choose whether or not it wishes to appoint the candidate who wins the election. The Hong Kong government is on record as saying so.

Members of the Election Committee would do well to pay much attention to public opinion and to vote according to their conscience in the secret ballot

But, in the past, there were suggestions that this power is merely a formality. Certainly, the relevant part of the Basic Law states that the leader will be selected in Hong Kong. It points to the choice being one for the city, rather than the central government. But in all previous elections, the central government’s favoured candidate has been generally known in advance and (mainly because of that) has secured support among the mostly pro-establishment members of the Election Committee. The last election, in 2012, saw an apparent shift in Beijing’s thinking when support for Henry Tang Ying-yen shifted to Leung Chun-ying at a relatively late stage.

Such a change of heart seems unlikely this time. There have been reports that Lam was selected as Beijing’s preferred candidate at a Politburo Standing Committee meeting in December. Zhang Dejiang (張德江), the state leader overseeing Hong Kong affairs, is reported to have met influential businesspeople and others from the city to inform them of the decision. Meanwhile, lawmaker Michael Tien Puk-sun has complained of “an invisible hand” contacting voters and urging them to support a certain candidate, presumably Lam.

Former secretary for justice Elsie Leung Oi-sie’s suggestion that mainland officials are simply exercising their freedom of expression is difficult to accept. It is a bit like saying lawmakers who made offensive comments when taking their oaths were doing the same. Mainland officials are entitled to their opinions, like anyone else. But if they are lobbying in a way that breaches the Basic Law, this is not a form of expression which should be tolerated.

I do not know if lobbying by Beijing is illegal, Hong Kong chief executive hopeful Carrie Lam says

The central government has a legitimate concern that Hong Kong’s new leader should be seen to enjoy strong support in the city. With four candidates standing so far, a convincing win may be more difficult to achieve than in the past. Even then, if support from voters on the committee is seen to be engineered by the central government, it will weaken the winning candidate’s standing in the eyes of Hong Kong people – and that will not make it any easier for the chief executive to govern.

Understandably, Beijing would want to avoid a constitutional crisis, in which it refuses to appoint what it regards to be an unacceptable winner of the election. But with three former senior officials standing, along with an ex-judge, it is difficult to see how it could reasonably object to whoever wins. The decision should be one for Hong Kong, and members of the Election Committee would do well to pay much attention to public opinion when making their decision and to vote according to their conscience in the secret ballot.

Patriot games and popularity in Hong Kong’s chief executive race

Beijing’s influence in elections has not been restricted to the choice of chief executive. Concerns were raised in the Legislative Council election last September that one lawmaker was pressured to step down and, in 2012, another publicly revealed the central government’s liaison office had lobbied on his behalf. These elections are supposed to be Hong Kong affairs.

Protecting the city’s separate system is not to be confused with localism, let alone independence. The high degree of autonomy Hong Kong enjoys is what makes it a special part of China. It is part and parcel of the arrangements put in place for Hong Kong’s return to China.

‘One country, two systems’ and a vicious circle in Hong Kong

Any erosion of the city’s ability to run its internal affairs, as it sees fit, threatens to undermine the whole concept of “one country, two systems”. It is worth recalling the words of the Sino-British Joint Declaration, in 1984. It states that Hong Kong will enjoy a high degree of autonomy, except in foreign and defence affairs. That simple statement should be respected.

Constitutional expert Yash Ghai, writing in 1997, warned that intervention by the central government in Hong Kong through public and private channels would highlight “the increasing unreality of ‘two systems’”. We must take care that the dividing line between the two is protected and that these unique arrangements put in place 20 years ago remain valid and effective.

Cliff Buddle is the Post’s editor, special projects