Wednesday, September 29, 2021

Albert Chen on "A 'Post-National Security Law Era' Narrative for Hong Kong", Preface to Loh and Cullen's New Book in Chinese

"A 'Post-National Security Law Era' Narrative for Hong Kong"
<<香港在中國—重新思考內地與香港關係>>, by 陸恭蕙 (Ms Christine Loh) 高禮文 (Professor Richard Cullen) , 譯 魏磊傑, City University of Hong Kong Press, published in 2021

This is the English translation of the Preface written by the author for the Chinese book, 陸恭惠、高禮文(著)、魏磊傑(譯):《香港在中國:重新思考内地與香港關係》,香港城市大學出版社2021年版. This Chinese book is the translation of Christine Loh and Richard Cullen, No Third Person: Rewriting the Hong Kong Story (Hong Kong: Abbreviated Press, 2018. A revised edition of this English book was published in 2021 under the title Hong Kong in China: Rethinking the Hong Kong – Mainland Relationship.
     What is "one country, two systems"? How should we understand the relationship between the "high degree of autonomy" of the Hong Kong Special Administrative Region (HKSAR), state sovereignty and the central authorities’ “comprehensive jurisdiction” over the HKSAR? What should be the identity of Hong Kong people? What kind of discourse or narrative should there be about the "Hong Kong Story"? How should Hong Kong’s past be understood? What kind of future will Hong Kong have? How could the path of "one country, two systems" proceed?
     In the "post-National Security Law era", this series of issues is more urgent than at any other time in history, and they are causing anxiety among many Hong Kong people. Although this book was written before the enactment of the HKSAR National Security Law, it has fleshed out these issues and provided preliminary answers to them.
     In fact, I believe that in the "post-National Security Law era", this book is more meaningful, valuable and enlightening to us than it was at the time of its writing. The authors are Christine Loh and Richard Cullen. Loh is a public figure in Hong Kong, having served as a member of the Hong Kong Legislative Council before and after reunification, and as Undersecretary for the Environment of the HKSAR Government. Loh is also a scholar and has written many books. Cullen, from Australia, has taught at the School of Law of City University of Hong Kong for many years, and in recent years at the Faculty of Law of The University of Hong Kong. Both authors are intellectuals who have long lived in Hong Kong, served Hong Kong and love Hong Kong. This book is the culmination of years of their reflections on Hong Kong's situation under "one country, two systems", and on the "Hong Kong story".
      The authors point out in this book that there needs to be a common understanding of Hong Kong's identity, status, future and destiny. They propose a new "narrative" of the "Hong Kong story". They point out that Hong Kong's identity and destiny should not be pinned on its becoming a Western-style democracy and the realization of the so-called "double universal suffrage". This is because Hong Kong is not a country but an inalienable and integral part of the Chinese motherland; Hong Kong cannot and must not become an independent political entity that considers itself separate from China. On the contrary, Hong Kong people must get to know the motherland and try to understand the role that Hong Kong can play in China’s development.
     "Pan-democratic" politicians devote all their energies to building a Western-style democracy in Hong Kong, but this is not Hong Kong's destiny. On the other hand, this does not mean that Hong Kong should become another Chinese city exactly like other big cities in the mainland. The authors point out that in its history, Hong Kong has been the meeting point of Chinese and Western cultures, and the confluence of these cultures has enabled Hong Kong to become a Chinese society in which many modern ideas and practices that originated in the West have taken roots. Hong Kong is thus a most valuable asset to the motherland; as a highly cosmopolitan city, Hong Kong's future remains unbounded. Under the constitutional framework of "one country, two systems", the mainland and Hong Kong systems can co-exist, cooperate, make up for each other's shortcomings, and prosper together in creating a better tomorrow for the motherland.
     I think this book contributes much insight for us in this "post-National Security era". Some people think that the enactment of the National Security Law marks the end of “one country, two systems”; I disagree. Article 23 of the Basic Law of the HKSAR has originally made it very clear that it is the constitutional responsibility of the HKSAR to enact laws prohibiting acts that endanger national security, such as treason, secession, subversion of the Central People's Government (CPG) and sedition. After the bill to implement Article 23 was shelved in 2003 following the July 1 protest and up until the anti-extradition law movement of 2019, the CPG never instructed the Chief Executive of the HKSAR to re-introduce the Article 23 legislation.
    At the end of 2007, the Standing Committee of the National People's Congress (SCNPC) set a timetable for the introduction of universal suffrage for the election of the Chief Executive (stipulating the target date of 2017). Contrary to some people’s suggestion, it did not require Hong Kong to put in place Article 23 legislation as a prerequisite for the introduction of universal suffrage. It can therefore be seen that the CPG was very liberal in its Hong Kong policy at that time, and did not consider the Article 23 legislation to be urgently needed.
      It was the “black violence” arising from the anti-extradition law movement in 2019 that finally led the CPG to believe that, without laws to safeguard national security, it would be difficult to bring Hong Kong out of chaos and restore order and stability. But by this time, it was clear that the crisis of governance precipitated by the riots of 2019 was such that it was totally unrealistic to expect the HKSAR government to legislate successfully to implement Article 23. In these circumstances, the CPG and the SCNPC decided to enact a National Security Law for the HKSAR. As CPG officials have repeatedly stressed, the National Security Law only establishes the bottom line of the “one country” element of "one country, two systems", that is, minimum requirements such as "no secession" and non-subversion of state power. As long as the bottom line is not transgressed and the minimum requirements are met, Hong Kong people still retain a wide range of freedoms, and the "two systems" in "one country, two systems" are still alive.
     In fact, since the "Occupy Central Movement” in 2014, the project of "one country, two systems " in Hong Kong went off the rails. The “August 31 (2014) Decision” of the SCNPC aimed to introduce a viable universal suffrage model in accordance with Article 45 of the Basic Law (which expressly provides for nomination by a Nomination Committee of candidates for Chief Executive election by universal suffrage) as well as the 2007 Decision of the SCNPC on the timetable for universal suffrage in the election of the Chief Executive. The model was designed to enable Hong Kong people to elect the Chief Executive by universal suffrage, while ensuring that the elected Chief Executive would be a patriot whom the CPG was willing to appoint as Chief Executive. I believe that this electoral model was well-intentioned. However, opposition politicians considered that it was not in line with their idea of Western-style democratic universal suffrage, and firmly opposed it. This opposition evolved into the "Occupy Central Movement".
     In 2015, the electoral reform proposed by the HKSAR government on the basis of the “August 31 Decision” was rejected by the Legislative Council as the reform failed to secure the requisite two-thirds majority. The 2016 Legislative Council elections saw the rise of the “localists”. Two of them, after being elected into the Council, used the occasion of the taking of their oaths of office to promote “Hong Kong independence”. In order to clarify the oath-taking requirement, the SCNPC promulgated an interpretation of Article 104 of the Basic Law on the taking of the oath of office, which requires legislators to support the Basic Law and pledge allegiance to the HKSAR of the People's Republic of China. The failure of some “localist” legislators to take their oath properly led to their being disqualified in accordance with relevant judicial decisions.
     Some critics saw this development as a sign of the CPG’s narrowing of the space for "one country, two systems". But the reality was that there were no Hong Kong independence advocates entering the Legislative Council before 2016, so there was no need for the CPG to intervene and to interpret the oath-taking requirement. In my view, the 2016 SCNPC interpretation did not amount to a deliberate tightening of the CPG’s policy towards Hong Kong. Rather, it was a response on the part of the CPG to what it considered to be a rapidly deteriorating political situation in Hong Kong, and it did no more than setting the necessary bottom line that the CPG considered tolerable.
     The proposed amendment of the Fugitive Offenders Ordinance in 2019 was also regarded by some members of the community as a manifestation of the CPG's tightening of the "one country, two systems" policy; and they believed that, if the amendment were successful, any Hong Kong person could be extradited to the mainland for trial on suspicion of breaking the law. Although many people in the “yellow” camp held that view, I disagree with them. The reason for the proposed amendment was the Chan Tong-kai case, in which Chan was suspected of (and subsequently confessed to) killing his girlfriend in Taiwan. If there was no such case, there would not have been an extradition bill. After Chan's return to Hong Kong, the Taiwan authorities requested his extradition. However, the existing Hong Kong law did not allow extradition between Hong Kong and any other region of China, and Taiwan is a region of China under Hong Kong law. Therefore, the HKSAR Government proposed to amend the provisions of the existing Fugitive Offenders Ordinance to establish a "case-by-case" (rather than treaty-based) extradition mechanism which could be applied as between Hong Kong and any jurisdiction that did not have an extradition treaty with Hong Kong, including more than 100 countries, mainland China, Macau and Taiwan. The proposed extradition arrangement would apply only to serious criminal offences, and the principle of non-extradition of political offenders and other safeguards in the existing legislation would remain unchanged. This proposed amendment was put forward by the HKSAR Government on its own initiative; it was not a piece of legislation that the CPG required or instructed the HKSAR government to enact. It is noteworthy that in the Macau SAR, there was also no law that enabled extradition as between Macau and the Chinese mainland.
     Extradition is a globally accepted arrangement for international cooperation in fighting crime, aimed at ensuring that persons who commit crimes in one country can still be brought to justice when they flee to another country. It was a misperception that the purpose of the 2019 amendment was to reduce the freedom and human rights of Hong Kong people, and that the amendment was an “evil law”. Furthermore, in mid-June 2019, a few days after the anti-extradition law movement escalated into a violent confrontation between the police and demonstrators, the HKSAR Government announced that it would shelve the legislative exercise indefinitely, and subsequently announced the withdrawal of the bill altogether. But the movement and civil unrest continued, with more and more violence and rioting that lasted for several months. This was completely beyond the original scope of the campaign to oppose the extradition bill.
     Events from the "Occupy Central Movement" to anti-extradition law, and from anti-extradition law to large-scale and prolonged “black violence”, showed that the project of "one country, two systems " had been seriously derailed. Some people say that the National Security Law is only "rule by law" rather than "the rule of law". I think that if we want to "cure the disease" rather than merely to deal with its symptoms, we must re-invent the discourse or narrative of "one country, two systems". This is exactly the subject explored in this book. As the authors point out, if Hong Kong is to have a new discourse, a new narrative and a new self-awareness of "one country, two systems", and if past mistakes or deviations are to be rectified, we must first understand the reality of Hong Kong as part of China.
     Hong Kong is part of China, and China is a great power in the world today, and an important member of the international community. China's relationship with other countries largely determines Hong Kong's relationship with other countries. During the 2019 anti-extradition law movement, there were scenes of countless American flags being displayed or waved during demonstrations; some people actually believed that they could rely on foreign forces to support their political demands on the Hong Kong government.
     As we all know, the relationship between China and the United States is not only competitive, but has also become more confrontational in recent years. A situation of a "New Cold War” seems to be emerging. Hong Kong people will have to choose either to side with China or with the United States. Most of us Hong Kong people are Chinese citizens, and of course we should be on China's side. Any discourse or narrative of Hong Kong under “one country, two systems” must take this as its point of departure, and this is also the view of the authors of this book.
     I sincerely hope that in the coming days, Hong Kong society will return to rationality, mend the relationship between Hong Kong and the mainland, and re-invent a healthy discourse or narrative about Hong Kong under "one country, two systems" that can foster a “win-win” scenario for Hong Kong and the Mainland. This, I believe, is the only way in which we, the people of Hong Kong and our next generation, can continue to live and prosper in Hong Kong – this beloved home of ours.

Professor Albert H.Y. Chen
Faculty of Law, University of Hong Kong
July 2021

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