Saturday, May 9, 2020

Yash Ghai on Constitutional Relations between China and Hong Kong (The Star)

"Constitutional Relations between China and Hong Kong"
Yash Ghai
The Star
April 2020
I have in the past written about the relationship between Hong Kong and China, believing that people in Kenya would find it interesting as they try to understand the nature of the new super-power that has become so prominent in African affairs. And I have written about China in Africa for a collection of writings on China and Hong Kong in the hope that this would be interesting for Hongkongers trying to make sense of their own relationship with the Leviathan of which they are now a part. 
China and Kenya again
Although most people in Kenya have been sensible enough not to blame individual Chinese (and still less anyone who just looks Chinese) for the terrible pandemic that originated in a Chinese market, there have been fresh reasons for us to be concerned about China.
     For some time African states believed that China was driven by a concern for the development and benefit of our countries. As we know, our President was enchanted by what he thought was the generosity of the Chinese President in relation to the SGR project, only for us to find that we had been severely cheated. As far as we can tell, only China has benefited from that enterprise (and perhaps some property owners in Naivasha). States and citizens of Africa more generally have of late expressed considerable suspicion of the bona fides of China in their relations with them.
     And now we find that the Chinese are apparently less tolerant towards Kenyans than Kenyans are toward them. In fact prejudice against black people in China has a very long history.
     Before I explain why China’s relationship with Hong Kong has again attracted my attention and concern at this time, may I remind you of the salient features of the constitutional relationship between them?
Hong Kong and China
Hong Kong was taken away from China by the imperialistic Britain in 1842, by force. It remained under complete British control until the early 1980s when an agreement was made that HK would be returned to China – when a 99 year lease of part of the territory expired. The Sino-British agreement provided for some role for Britain for another 50 years, even after China ceased to own Hong Kong, principally to ensure that China honoured its undertakings on Hong Kong’s autonomy. In the meantime HK people would acquire increasing degree of autonomy from the British government so that on the reversion to China, HK would enjoy a high degree of autonomy, at least until another 50 years.
     The Constitution of Hong Kong (called the Basic Law – the Chinese did not want it called a “constitution) guarantees a Hong Kong “a high degree of autonomy”. It is about not only HK’s constitution but also the relationship with China (largely to restrict its role in HK). Its executive and legislature (still called the Legislative Council as in the colonial days) must be composed of permanent residents of Hong Kong (but not necessarily citizens of China). At least 80% of them must be ethnically Chinese. The Hong Kong government must safeguard the rights and freedoms of its residents. The essential elements of the legal system (based on English law) continue. English remains the official language. 
     The legislature is elected. However, half of them are not elected by one person one vote, but from special constituencies mostly related to economic activity. So some voters have two votes: one for a geographical constituency members and one for a “functional constituency” members. The more commercially oriented of these tend to be identified as “pro-China”. Funny how the desire for stability leads the commercial sector to be pro the (nominally communist) Beijing government.
    The head of the Hong Kong government the Chief Executive (sounding rather like a corporate head) enjoys considerable powers. But he or she is not freely elected by the Hong Kong people, but by a special electoral committee, and must have must have the endorsement of the mainland government. ... Click here to read the full text.

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