Pessimists will see not one but two nails being hammered into the coffin of Hong Kong’s autonomy in the second half of August 2011. The first was the introduction of Mainland-style security measures during last week’s visit of Vice-Premier Li Keqiang, complete with creepy men in black suits sweeping a bystander off the streets of his own neighbourhood for wearing the wrong T-shirt. The second is Beijing’s imminent declaration that its doctrine of full sovereign immunity must apply in Hong Kong courts. In other words, as in the rest of the PRC, you may not sue foreign state-owned commercial entities here, regardless of the fact that the local English-style law says you can.
But are we really witnessing a whittling away of Hong Kong’s autonomy? If the Big Lychee’s boisterous civil society agrees on anything it is Wendell Phillips’s aphorism about eternal vigilance – with extra added hyperbole if necessary – being the price of liberty. If the heavy handed police really intend to permanently restrict freedoms of the press and expression, they will have the Bar Association, the media, Dean Johannes Chan and the courts to contend with, not to mention the prospect of Vice-Chancellor Tsui at Hong Kong University declaring the campus an independent republic. (To make totalitarianism’s job even harder, we also have an almost laughably weedy government, backing down on a quick ban on by-elections and now national education in high schools at the first hint of public opposition.)
What we are really seeing here is not so much a clampdown on freedom and autonomy as a refusal by all concerned to honestly describe and explain what is happening in plain language.
The extraordinary security measures imposed in honour of Vice-Premier Li’s visit look suspicious because the official line is that there was nothing unusual about it – oh, and Li bestowed 36 highly generous gifts upon poor little Hong Kong with its pathetic struggling economy. Any thinking person knows that the security was indeed extreme, and talk of ‘gifts’ is disingenuous gibberish about minuscule central government measures to broaden Yuan convertibility – nothing really to do with Hong Kong. Faced with such BS, it’s no wonder people assume the worst.
How much better it would be if the Security Secretary Ambrose Lee had issued the following statement the day before the Vice-Premier arrived:
Dear fellow Hongkongers,
Over the next few days I am going to order the police to act like obnoxious idiots towards the press, protestors and anyone who comes within half a mile of Li Keqiang. This is because Li is a senior member of the Chinese Communist Party, putting him above and beyond any earthly laws and local practices. We have no choice in this; he is essentially a deity and we are ultimately subjects of his heaven. Sorry about this. Just stay cool and bear with us for a few days and then everything will be back to normal.
Peace and Love,
Ambrose
Similarly, the rubber-stamp ruling by the Standing Committee of the National People’s Congress about sovereign immunity will be dressed up in terms of how Hong Kong cannot have a separate foreign policy to the PRC, and this is about ’one country’ not ‘two systems’. Jittery Cassandras will throw up their hands in horror at a major curtailment of judicial independence and warn that companies may not be able to take legal action against state-owned firms in Hong Kong (presumably it depends on whether waivers of immunity in contracts remain valid).
A more honest explanation would be that a Communist one-party state cannot co-exist with a system where people may take legal action against any organ of any fellow state. More developed and sophisticated political systems do allow citizens to sue commercial entities ultimately owned by foreign governments; some are even moving in the direction of allowing people to take court action against foreign powers for human rights infringements. But for China it remains a sacrosanct part of the whole non-interference principle and ultimately the party and state’s status as above the law: people do not sue governments. If a particular element of common law in Hong Kong is incompatible with that, it goes.
Officials won’t de-mystify these issues through plain speaking because that would require abandoning pleasant fictions and admitting uncomfortable truths. The result is that the impact in Hong Kong of the monopoly of power in the one-party state appears to be sinister when in fact it is merely crude.
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“Officials won’t de-mystify these issues through plain speaking because that would require abandoning pleasant fictions and admitting uncomfortable truths. ”
Unfortunately, it would also require honesty and integrity, two qualities which are in very short supply in this Administration
I Echo every word that Hemlock wrote
So true, SO TRUE, and I could not haver written in better
But the fact is : HK now belongs to China
China does not belong to HK
As long as any of us : Chinese, whiteys, whoever, we must accept that fact
Although the big lychee may see, to be going downhill compared to its Imperial past, it’s a damn sight better place to live that 95% of the rest of the world
A sovereign state exerts its sovereignty by giving immunity to a subject or a filthy foreigner; but it never waives its sovereignty by signing waivers clauses in contracts with filthy foreigners.
A good article, though I wonder the extent to which HK officials over-react in the sense that they come up with the sorts of stunts that they feel will please their new masters? The national education plan, like many other Government plans was poorly conceived, poorly advised, rushed and as a result, doomed to failure. I can’t understand why otherwise intelligent people keep stuffing up so much.
It is a real shame that Hong Kong’s legal system is yet again being usurped “higher” powers in Beijing. Without a democracy or full representative government, an independent legal system, clear taxation and a clean public service are all we have left. If this law was to be passed and sovereign immunity applied in Hong Kong, we are left with even less public accountability than we currently have – and that can only mean more protests and public discontent
The Police are performing a delicate balancing act by ensuring that PRC Cadres and Property are protected (and China don’t lose face) but also ensuring the freedom to demonstrate etc are still allowed.
However have the Police been politicised to do one country’s bidding instead of policing the the 2 systems, i.e. Hong Kong ?
It’s the HK Police who raise the red flag and play the Anthem in Bauhinia Square. It’s the HK Police who were instructed to tear down every nationalist flag on the first double ten after the handover (10/10/97) – a regular sight in Colonial times. It’s the HK Police who regularly lowball the number of protestors on 1 July etc (equally likely that the organisers think of a high number and double it). Now we have the incidents during Vice Premier Li’s visit.
I have a great deal of admiration and respect for HK Police but they are doing the Administrations bidding and this is my concern. I cringe with embarrassment everytime I watch our good and great kowtow to mainland cadres. So to the Administration please stop using the HK Police in your efforts to suck up to Chinese leaders.
I’ve had to kick myself a few times this week just to make sure I’d not got sucked into a time-warp and awoken on 4th May 1970 at Kent State University after a massacre of four students by the Ohio National Guard. Then I realised I’m still in silly old Hong Kong and what has happened is that some students got pushed into a stairwell during a demonstration.
Imperialism will always be with us. The question is how to live with dignity. In my opinion, chinese who have internalized the doublespeak required by the party-state (and by mainland culture) are walking on all fours – theyre cowed people. Speaking the truth as you see it, and being ready to suffer and lose all for that truth – these two things will guarantee your dignity and that of your people.
Hemlock once again you are trying to play the role of a lawyer here when you are not. Call Johannes! Quick!
A key component of the “One country, two systems” system (sic) is that the Basic Law has supremacy over all laws, statutory or common. Art 19 says that foreign affairs belong to Beijing and not HK courts, and so they should.
More importantly, if HK were to recognise restrictive sovereign immunity (i.e. only commercial acts of a state are actionable) while BJ recognises an absolute regime (i.e. no acts of a state is actionable), then a case like Congo would result in the impossibility of enforcement on assets in the PRC, as its courts would never recognise an unconsitutional judgment by the HK courts.
Once again, you can always exercise your freedom of movement under the Basic Law and take the next flight back to UK.
Ah, the argument of the of the ignorant, ” If you don’t like it, move”
When they pushed a few students into a stairwell, I said nothing, for I was not pushed into a stairwell.
Mr. Onions, Beijing has as much the right to interpret the Basic Law as you have to set your 90 decibel alarm off at 6am and to pick your nose on MTR trains. It’s called the rule of law. You can look that up in OED.
One must always remember that “rights” represent those few freedoms remaining after an entity calling itself The State has taken away everything else. Appropriate responses include pathetic, fawning gratefulness; grumpy discontent and protest within the limits of ineffecivenes set by those being protested against; or the Lybian approach.
For the common man and woman, it’s all been downhill since the Mesolithic.
I just wondered from what the police were protecting VP Li? Bomb-lobbing Uighars and self-immolating Tibetans being rare in Hong Kong, and as I doubt the cops patted down the tycoons from whom the good VP obtained his expertise of the views of common Hong Kong’s people, I guess that leaves, er, common Hong Kong people.
Mr. Maxims, if you wish to live somewhere where the rule of law is open to interpretations by a totalitarian government, where freedom of speech is greeted with tanks bullets or a harsh jail sentence and none of this can be rectified by an independent judiciary, then you too can exercise your rights( while you still have them) and move to Peking. I’m sure they’d welcome you with open arms.
Dear old dear Mr. Onions,
I am proud that Article 158 of the Basic Law states that the right of final interpretation of the Basic Law rests with the Standing Committee of the National People’s Congress of the faterland! May you be in my fried rice tonight. Amen.
If you were a US citizen and found a bullet to your chest and another to your head, stepping into the Supreme Court to complain, you would still get their Honourable Justices’ confirmations of the Second Amendment on the “right of the people to keep and bear arms” shouted right into your half-deaf left ear.
Laws are laws, like it or not.
It is accepted that Art 158 of the notoriously ambiguous Basic Law vests final powers of interpretation of Basic Law upon the NPC; a seeming contradiction given it destroys Basic Law as the last guardian of Hong Kong’s autonomy.
What is worrying is that the NPC’s decisions are often not informed by judicial reasoning, but politics. And when a body makes laws arbitrarily and is inherently biased toward some groups more than others, the fundamental principles of the rule of law is broken.
As Professor Ghai from the University of Hong Kong Law School writes, “The failure to establish a proper basis for the interpretation of the Basic Law is thus perhaps, in the long term, the most dangerous threat to the autonomy of Hong Kong”.
Roger,
Two wrongs don’t make a right, but it’s hardly controversial that one of the two countries in question is significantly more authoritarian and prepared to dispossess, imprison or kill etc its own citizens (as compared to foreign terrorist suspects) in flagrant disregard of either universal rights or its own domestic laws.
And yes, you better believe that there are many good-looking and progressive-sounding laws in China, but the letter of said laws matters little when political imperatives and administrative power are in any way at stake. Chinese authorities typically understand “rule of law” to mean “rule by law”, or less.
Yash Ghai was right when he wrote those words around the time of the handover; he’s still right and he will probably be right until 2047 and beyond. HKers can only hope that Beijing respects the bilateral treaty upon which the Basic Law was premised and uses the gaping loophole in Art 158 only sparingly, and not in ways that flagrantly controvert the spirit of the mini-constitution.
Sorry, I may have adverted to other words of Yash Ghai’s (but very similar to the points ably put across by Allen Pinsent) along the lines of the Western theory of the rule of law being fundamentally incompatible with Leninist theories of state organisation where the political is paramount and other discourses (hello legal) are subordinate. Hence Art 158.
Cher Allen, cher Iffy,
You do realise that if the Standing Committee ever wanted to abuse Art 158, it could have done so with Art 23 (public security), Art 45 (universal suffrage) and all other “unsound” articles it later finds right? It only requires one session of deliberation and a nicely scripted order on Conqueror paper each time.
Ah, Mr maxims dear. Your pulling my leg you old wag you!
I got that, thanks Roger 🙂 You do realise the game’s not over yet?
Of course there’s good old social harmony to maintain, which is why major, rights-related abuses of the constitution probably won’t happen in a hurry. But that in itself provides the reason why we need to stand up for ourselves, and be seen to be standing up for ourselves. If we tamely acquiesce to creeping excesses of police power, for example, particularly when they coincide with a Mainland-related event, we’re doing nothing to defend against escalating abuses.
Weekend open, have a good one.