A ChinaFile Conversation

Chinese Communist Party General Secretary Xi Jinping visited Hong Kong on Thursday to mark the 20th anniversary of the July 1, 1997 return of the territory to China from the United Kingdom. Since the handover, many Hong Kongers have chafed under Beijing’s rule—tensions that culminated with the Umbrella Revolution in late 2014, when tens of thousands of citizens called for a more participatory form of government for their semi-autonomous territory of roughly 7.5 million people. What’s next for Beijing’s relationship with Hong Kong, and for the policy of “One Country, Two Systems”? —The Editors

Twenty years after China resumed sovereignty over Hong Kong, Beijing’s message to the city is a stark one: you only have the freedom to do as we please.

Speaking at an event on May 27, 2017, to mark the 20th anniversary of Hong Kong’s Basic Law (its constitutional instrument), Politburo Standing Committee member Zhang Dejiang declared that China held “comprehensive” sovereignty over the city. Beijing, Zhang said, held wide-ranging “implicit powers” over Hong Kong, including that of “supervising whether public officers . . . pledge allegiance to the country,” reviewing legislation enacted by the city’s Legislative Council, and instructing the territory’s Chief Executive. For good measure, Zhang warned, “Under no circumstances should the central government’s powers be confronted in the name of a high degree of autonomy.”

Zhang’s speech—and similar remarks by other mainland officials and academics in recent months—represents a dramatic break from the “One Country, Two Systems” doctrine under which Beijing had pledged to run Hong Kong. The contours of the formula—as laid down in the Sino-British Joint Declaration of 1984 and in the Basic Law—were designed to reassure jittery residents and nervous investors alike: a “high degree of autonomy,” except in foreign affairs and defense; an independent judiciary; protection for fundamental rights and civil liberties; and a path—albeit one deliberately left vague—to democratization.

Events after 1997—from the first “interpretation” of the Basic Law by the National People’s Congress Standing Committee in 1999 to the kidnapping of five individuals linked to a bookstore in Causeway Bay in 2015—prompted bitter disagreements over the scope of Hong Kong’s autonomy, and growing concerns that this autonomy was being gradually undermined. Nonetheless, Beijing’s influence largely remained indirect, exercised through clandestine meetings with pliant politicians or through the influx of red capital. Where Beijing saw fit to act directly, such instances were typically waved away as justified by exceptional circumstances, or followed by tacit backpedalling. For instance, after the Causeway Bay Bookstore kidnappings, including the abduction of one bookseller from Hong Kong soil, Legal Affairs Chief of the Beijing Government’s Liaison Office in Hong Kong Wang Zhenmin referred to the abductions as a “very unfortunate incident,” adding that “no one wants to see this kind of case . . . happen again in future.” Against that background, it is not surprising that many observers comforted themselves with the thought that Beijing would not abandon “One Country, Two Systems” entirely. The U.K. Foreign and Commonwealth Office, for example, remained satisfied in February 2017 that “‘One Country, Two Systems’ continued to function well in the vast majority of areas.”

To such observers, Zhang’s remarks should come as a rude awakening—and a signal that China’s Hong Kong policy has shifted from one of covert influence to one of overt control. Zhang’s public repudiation of separation of powers as applicable to Hong Kong, and his assertion of the power to “supervise” Hong Kong officials based on their allegiance to national sovereignty, risk fatally undermining judicial independence and the political neutrality of the civil service—both fundamental tenets of the territory’s administrative and constitutional order. Worse, Zhang’s invocation of “implicit powers,” and his threat to “go into further details” about Beijing’s consolidation of sovereignty over Hong Kong, amount to a blank check to intervene in matters that should be within the city’s autonomy—acts prohibited by Article 22 of the Basic Law.

Adding insult to injury, Zhang exhorted judges, officials, and academics to study the Basic Law. With its track record of torturing rights lawyers, the notion of mainland China lecturing a sophisticated common-law jurisdiction about learning the law should attract derision. But an examination of exactly what sort of “study” Zhang wants Hong Kongers to emulate suggests that alarm might be a more appropriate reaction.

In light of China’s ever-tighter control over its academics, it is not surprising that much of this scholarship is devoted to hard-line, punitive prescriptions rather than any independent or genuine attempts to understand “One Country, Two Systems.” Rao Geping, a law professor at Peking University, called for interpretations of the Basic Law by the National People’s Congress Standing Committee—widely condemned as interfering with Hong Kong’s judicial independence—to become a regular practice. Chen Duanhong, another Peking University professor, has called for Hong Kong residents of foreign nationality who supported the pro-democracy Umbrella Movement to be expelled from the territory. And Wang Liwan, a former colleague of mine at New York University now at the China University of Political Science and Law, has suggested that the Basic Law’s protections for freedom of expression be “interpreted” to exclude any form of “advocacy for Hong Kong independence,” a term he uses to tar the entire spectrum of political opposition in Hong Kong.

Admittedly, academic opinion does not translate directly into official policy. Nonetheless, it would be surprising if such views did not enjoy broader support from mainland officials in charge of Hong Kong policy. Unless incoming Chief Executive Carrie Lam pushes back (her refusal to take up the bookseller abductions suggests that she is unwilling, and perhaps unable, to do so), there is a real risk that Hong Kong’s formal institutions may become stripped of any substantive meaning.

Beijing’s willingness to hollow out Hong Kong’s formal autonomy is perhaps most evident in comments by Wang Zhenmin, himself a former Dean of Tsinghua Law School. Speaking on April 29, 2017, he defended Beijing’s interventions in Hong Kong in these terms: “If you say your brain interferes with your hand, the latter is a part of you, so this cannot be called interference.”

There is a time-honored way to describe such arrangements: a puppet regime. In that light, Zhang’s speech on May 27 may not be so much a celebration of “One Country, Two Systems,” as a death sentence.

Antony Dapiran

Under the terms of the Sino-British Joint Declaration, Hong Kong was promised a “high degree of autonomy” and that its “social and economic systems” and “lifestyle” would not change for fifty years. However, it is important to understand how Beijing interprets these phrases before we look to rely on them as guarantors of Hong Kong’s rights and freedoms.

Those British negotiators and Hong Kong citizens who took comfort in the phrase “high degree of autonomy” may have failed to realize that Beijing also refers to Tibet and Xinjiang as “autonomous” regions, using the same Chinese characters zi zhi (自治). From the Chinese point-of-view, the mere existence of a local government constitutes “autonomy,” and there is nothing about the concept that gives such local government the unfettered right to do as it pleases with no deference to Beijing.

As for the famous fifty years, contemporary commentators—with the benefit of hindsight—like to point out how wrong history seems to be proving those who argued that in the 63 years between 1984 and 2047 the Mainland would “converge” with the West generally and with Hong Kong in particular. To be sure, the Mainland does not appear to be on the path to liberal democracy. But in terms of their “social and economic systems” and “lifestyles”, the Mainland has largely “converged” with Hong Kong: remember that in 1984 the Mainland was still running a Marxist planned economy, and then just go to a shopping mall in any large Chinese city today. It is in the vitally important area of fundamental values that the gap remains largest.

For the Chinese Communist Party, two things are sacrosanct: China’s territorial integrity, and the continuing rule of the Chinese Communist Party over that territory. Everything in the Joint Declaration and the Basic Law, including terms like “autonomy”, must always be seen through that lens.

And so it should come as little surprise to hear in Xi Jinping’s speech on the occasion of the 20th anniversary of the Handover, the following key sentence:

“Any attempt to endanger China’s sovereignty and security, challenge the power of the central government…or use Hong Kong to carry out infiltration and sabotage activities against the mainland is an act that crosses the red line, and is absolutely impermissible.”

It is the kind of Chinese political wording intended to be axiomatic, to become a policy and then a slogan. Expect to hear much more about this “red line.”

What Xi was saying, if it wasn’t already clear from recent years’ events—the abductions of booksellers and businesspeople, the disqualification of unruly legislators—was that Beijing will not tolerate Hong Kong being used as a base for activities that undermine the interests of the Party.

Thus the key question for Hong Kong’s future is: what constitute the interests of the Party for this purpose?

Obviously it includes publishing subversive materials and distributing them into the mainland. It also includes advocating independence for Hong Kong, although how active such advocacy must be before it crosses the “red line” remains to be tested. Demonstrators still waved “Hong Kong Independence” banners with impunity at the march on July 1, although as Kevin Carrico has pointed out, their attempts to hold their own rally were defeated, probably without legal basis. In Beijing’s view, the “red line” also encompasses advocating any form of self-determination, which is seen as a back door to independence.

My concern is that, as we keep inching along this path, we may very quickly reach the point where criticizing the Hong Kong government itself (which represents Beijing and its interests in Hong Kong) is considered yet another means of indirectly undermining China’s interests. Inevitably, this will lead to constraints on the rights to free speech and assembly, meaning the end of the right to protest and the end of a free and unfettered media.

Most alarming of all is that—for appearance’s sake—Beijing would likely seek to do this within the framework of Hong Kong’s existing laws, putting pressures on the judiciary and our legal system that would irreparably “break” Hong Kong’s rule of law. At that point Hong Kong and the mainland will truly have converged.

Article originally appeared in ChinaFile on 30 June 2017