Get­ting rid of pan­der­ing hypocrisy Bri­tish Par­lia­ment should re­view uni­lat­eral leg­isla­tive moves by last HK gov­er­nors that left holes in the demo­cratic process

China Daily (Canada) - - COMMENT -

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 [1985] 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.

Newspapers in English

Newspapers from China

© PressReader. All rights reserved.