Tim Summers
Senior Consulting Fellow, Asia Programme (based in Hong Kong)
A new White Paper published by Beijing has provoked strong reactions in Hong Kong for its perceived shift on the policy of the Special Administrative Region's autonomy. But it is primarily politics, not the text of the paper itself, driving the reaction.
Hundreds of lawyers and representatives from the legal sector dress in black and take part in a silent march from the High Court to the Court of Final Appeal on 27 June 2014 in Hong Kong. Photo by Lam Yik Fei/Getty Images.Hundreds of lawyers and representatives from the legal sector dress in black and take part in a silent march from the High Court to the Court of Final Appeal on 27 June 2014 in Hong Kong. Photo by Lam Yik Fei/Getty Images.

In early June, the information office of the Chinese central government published a White Paper on ‘One Country Two Systems’. This is the settlement put in place after Hong Kong was handed over by the United Kingdom to become a Special Administrative Region of the People’s Republic of China in 1997, part of China while retaining its separate system.

In the context of high octane local politics and a fierce debate on constitutional development, local reaction to the White Paper has been dominated by concern that it signaled a shift to a more assertive approach to Hong Kong from the central government, and by specific references in the White Paper to Hong Kong’s judiciary.

The White Paper begins relatively benignly by stating that ‘One Country Two Systems’ is China’s ‘basic state policy’ towards Hong Kong. It then outlines the history and development of this policy, including the roles of the central authorities and the areas in which Hong Kong enjoys a high degree of autonomy, and ‘efforts made by the central government to ensure the prosperity and development’ of Hong Kong.

The controversies have arisen over parts of the final section of the paper, on ‘fully and accurately understanding and implementing [One Country Two Systems]’.

First, statements that, ‘as a unitary state, China’s central government has comprehensive jurisdiction [over Hong Kong]’ and that Hong Kong’s ‘high degree of autonomy… is not an inherent power, but one that comes solely from the authorization by the central leadership’ have been read by some as marking a change from commitments made in the 1984 Sino-British Joint Declaration and the Basic Law, the Chinese law which is in effect Hong Kong’s constitution.

These statements immediately follow a reiteration of a phrase from the Joint Declaration, namely that Hong Kong ‘will be [is] directly under the authority of the central people’s government’. And as ‘authorization’ is the term used in the Basic Law, most critics have focused on the argument that ‘comprehensive jurisdiction’ adds a new and worrying element.

In context, the obvious reading of this phrase is as an explanation of the nature of a unitary state. The phrase also appears in section II of the paper (translated in the English version as ‘overall jurisdiction’), where it is explained as referring to the ‘powers directly exercised by the central government, and the powers delegated to [Hong Kong] to enable it to exercise a high degree of autonomy…’ This is nothing here to support the reading that ‘comprehensive jurisdiction’ goes beyond understandings set out in the Joint Declaration and Basic Law.

A second set of concerns, around the legal and judicial implications of the paper, have been set out by the Hong Kong Bar Association.

They begin by discussing the White Paper statement that the ‘power of interpretation and amendment of the Basic Law [is] vested in the National People’s Congress and its Standing Committee’. This is the standard constitutional position and the Bar Association does not take issue with it, but highlights the point – also included in the White Paper – that Hong Kong’s courts can interpret Basic Law provisions ‘within the limits of [Hong Kong’s] autonomy’.

Related to this, the Bar Association challenges a statement in the White Paper about ‘correctly understanding… the Basic Law’ by pointing out that in common law jurisdictions there is no definitive ‘correct’ meaning of legislation. This is fair as far as the Basic Law is to be interpreted by local courts within the limits of Hong Kong’s autonomy. But it misses the point that the Basic Law is a national Chinese law (the rest of China does not follow common law) and as such its interpretation is ultimately something for Beijing, not the Hong Kong courts.

In between these two concerns, the Bar Association picks up on language which lists the judiciary along with the government and legislature in a section on patriotic requirements for ‘Hong Kong people running Hong Kong’. The Bar Association says that ‘Judges and judicial officers… are not to be regarded as part of ‘Hong Kong’s administrators’ or part of the governance team upon whom a political requirement is imposed’, but without directly criticizing the White Paper. Others, however, have picked up on this to argue that the White Paper suggests that the central government sees judges as being part of Hong Kong’s administration, and that this undermines judicial independence.

However, the White Paper does not describe judges as administrators. Although the English translation says judges ‘administrate’ [sic], the Chinese word thus translated is the same as in ‘Hong Kong people running Hong Kong’. The text is therefore including judges among those that ‘run Hong Kong’, hardly controversial. At the very least, in its original language the White Paper does not describe judges as administrators.

These conclusions are consistent with an interpretation of the central government’s intention in publishing the White Paper being to be restate long-standing official policy on ‘One Country Two Systems’, and not to redefine Beijing’s policy towards Hong Kong.

Nonetheless, the political reality remains that people in Hong Kong have not interpreted it this way, and the White Paper has been seized upon by those who wish to push the centre to go beyond Basic Law provisions on the road to universal suffrage. The political situation is complex, but it is politics and not the text of the White Paper which is behind the last month’s rise in political temperature in Hong Kong.

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