Getting rid of pandering hypocrisy British Parliament should review unilateral legislative moves by last HK governors that left holes in the democratic process
The British Parliament has launched an inquiry into the present chaotic situation inHong Kong. As someone who was a visiting chair professor at Lingnan University at the critical juncture (199799) ofHong Kong’s handover to China and who has followed events in theHong Kong Special Administrative Region ever since, my immediate thought on hearing the news was that I do not envy the parliamentary team that will conduct the inquiry. While its charge is to examine the implementation of the Sino-British Joint Declaration of 1984 that set the terms for the transfer of Hong Kong’s sovereignty, a review of that implementation process will also have to look at Britain’s responsibility between 1985 and 1997 as well as what has happened under the Chinese after the 1997 handover.
Article 4 of the Joint Declaration provides that “during the transitional period between the date of the entry into force  of this Declaration and 30 June 1997, the Government of the United Kingdom will be responsible for the administration of Hong Kong with the object of maintaining and preserving its economic prosperity and social stability”. The same article provides for “Chinese cooperation” in the course of the transitional British administration of Hong Kong. According to Article 31 of the Law of Treaties Convention (1969), a treaty (including an agreement) is to be interpreted “in light of its object and purpose”. Since the foremost purpose of the agreement between China and Britain was to preserve the “current” system and stability of Hong Kong, this part of the Declaration should be construed to imply the preservation of the “current” system as it existed in 1985.
Notwithstanding this commitment, however, the British caretaker administration unilaterally (without Chinese “cooperation” or consent) engineered some crucial changes, with far-reaching consequences for the post-1997 period. For example, it amended, and emasculated, the Public Order Ordinance in 1992 and the Societies Ordinance in 1995. To these it added, for the first time, indirect elections for the Legislative Council. Then in 1994, Christopher Patten, the last British Governor, pushed through electoral reforms that in retrospect, unleashed an invidious “revolution of rising expectations” for future democracy fights in Hong Kong.
Under the old Public Order Ordinance, organizers of demonstrations were required to apply for permits beforehand; and police could stop and block any demonstration on suspicion that its effect was potentially disruptive of public order. The amended law made such permits no longer necessary: the organizers need only to inform the police of their plan to hold a protest. Furthermore, the police no longer have the power they had before to stop wayward demonstrations.
The old Societies Ordinance, on the other hand, gave the Governor the absolute power to declare as unlawful any society [organization] that was used or even might be used for unlawful purposes -“purposes incompatible with the peace and good order of the colony”. The law also prohibited local groups in Hong Kong from having links with foreign political organizations, or accept funds and other aid.
If these ordinances had not been unilaterally (hence, illegally) tampered with by the caretaker British colonial government, during the transition, there would have been no need for legislations to be enacted under the Article 23 of the Basic Law, the mini Constitution of the HKSAR. More specifically, there would not have been the real or potential turmoil associated with the activities surrounding the Occupy Central campaign in mid 2014.
The consequence of the police losing their power, due to the emasculation of the previous Public Order Ordinance, to stop politically motivated disruptive protests is now painfully shown in the haphazard need for various civic groups in opposition, on their own initiative, to band together to organize a counter protest and to collect signatures on the anti-protest petition, professedly to staunch threats to Hong Kong’s economy and stability. Behind the façade of the civil disobedience drive hide the simmering effects of “the revolution of rising expectations” created by the last-minute controversial reforms on the eve of Hong Kong’s handover.
The professed goal of the Occupy Central campaign was the election of the HKSAR Chief Executive by universal suffrage in 2017. This sounds both hollow and inscrutable since the National People’s Congress Standing Committee already ruled on Dec 29, 2007 that “the election of the fifth Chief Executive of the HKSAR, in the year 2017, may be implemented by the method of universal suffrage”. It also ruled that along with it, the election of the Legco may also be by universal suffrage.
In view of the above, for the British Parliament to remain above the level of pandering hypocrisy when it intervenes, looking over Chinese shoulders, to find what has gone wrong in Hong Kong, it will have to re-open the issue of British irresponsibility displayed in the above-mentioned illegal unilateral changes during the 1985-97 transition. They have proven to be the sources of Hong Kong’s problems today. The author is professor of politics and international Law at New York University, and author of Hong Kong the Super Paradox: Life after Return to China.