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Back to the Legal Basics: A Note at the Anniversary of the Hong Kong Umbrella Movement

Dr. P.Y. Lo, Barrister-at-law, Gilt Chambers, Hong Kong; Part-time tutor, Faculty of Law, The University of Hong Kong

The Umbrella Movement erupted in Hong Kong, a Special Administrative Region (SAR) of the People’s Republic China (PRC), on 28 September 2014 when protestors began to occupy major thoroughfares in mainly three busy business and commercial districts in Hong Kong after the police failed to disperse them using CS gas and pepper spray. These unlawful occupations lasted for 79 days and came to an end with the removal of the last protestors by members of the police said to be assisting in the execution of several court orders made at the suit of private transportation businesses.[1]

The Umbrella Movement was the unintended culmination of a course of advocacy by various political factions in Hong Kong in 2014 to threaten to use civil disobedience tactics to force the Central Authorities of the PRC to grant at the next stage of the development of Hong Kong’s political system in 2017 a method of election of the Chief Executive that is “genuinely democratic universal suffrage” and the Central Authorities’ substantive rejection of such a demand by a Decision of the Standing Committee of National People’s Congress (SCNPC) adopted on 31 August 2014 (the 8.31 Decision).[2]

Purpose

This Note marks the first anniversary of the Umbrella Movement by examining the substantive provisions of the 8.31 Decision as to how restrictive they are and whether they can or cannot be justified as “reasonable restrictions” of a Hong Kong SAR permanent resident’s rights to vote and to be elected, which are guaranteed under Article 26 of the Basic Law of the Hong Kong SAR.

Although the Hong Kong SAR Government’s proposal for amending the method of selecting the Chief Executive in 2017 by universal suffrage was rejected by the Legislative Council in farcical circumstances on 18 June 2015,[3] the first anniversary of the Umbrella Movement has presented an opportunity for all those concerned to re-focus on the debate about the direction of Hong Kong’s political system for the mid and long-term,[4] not only because the pre-existing electoral method for electing the Chief Executive (based upon an Election Committee composing of four sectors of a total of 1,200 persons elected to represent various sub-sectors in one of those sectors) will continue to be the electoral method for the Chief Executive election in 2017,[5] but also due to the legal bind and the political reality that any future move in developing the Chief Executive electoral method towards a method by universal suffrage will continue to have the 8.31 Decision as the starting point.[6]

I had earlier in this blog in February 2014 outlined the current electoral method for electing the Chief Executive and considered what the Basic Law of the Hong Kong SAR, particularly Article 45 thereof, envisages to be the electoral framework for returning the Chief Executive of the Hong Kong SAR by universal suffrage.[7] More debates had followed, which led to the 8.31 Decision. The analysis I am going to embark on follows recent scholarship on how the SCNPC works in law-making and extends the coverage to decision-making said to be in accordance with law, which might not be normatively different.[8] The analysis is also necessary to enable the stakeholders (the Central Authorities included) to view the legal position dispassionately and take more rational positions in future negotiations, including revisiting the 8.31 Decision at appropriate time and circumstances.[9]

Assumptions

Before the analysis begins, some assumptions must be stated. Firstly, it is assumed that the SCNPC acts rationally and provides justifications for its decisions. Secondly, the SCNPC’s justifications are accessible and meant to genuinely represent its collective position. Thirdly, the SCNPC’s justifications for the relevant decisions must each pass muster in respecting the Hong Kong permanent resident’s right to vote and right to be elected. Fourthly, the examination for determining whether a relevant decision is or is not a “unreasonable restriction” to the Hong Kong SAR’s permanent resident’s right to vote and right to be elected implicates the application of the tool of proportionality analysis approximating that understood under Article 25 of the International Covenant on Civil and Political Rights (of which the PRC is a signatory). Accordingly, a restriction would be tested as to whether it is “unreasonable” in this context by (i) asking whether the restriction pursues a legitimate societal aim; (ii) having identified that aim, asking whether the restriction is rationally connected with the accomplishing of that end; and (iii) where such rational connection is established, asking whether the means employed are proportionate or whether, on the contrary, they make excessive inroads into the protected right.[10]

The 8.31 Decision and its Explanations

Article II of the 8.31 Decision contains the provisions concerning the election of the Chief Executive in Hong Kong by universal suffrage that are the subject of the present objectively examination. During the Session of the SCNPC in August 2014, Mr. Li Fei, the Deputy Secretary General of the SCNPC, provided, at the request of the Chairmen’s Council of the SCNPC, explanations on the draft 8.31 Decision (the Explanations).[11] The Explanations will be taken as the justificatory statements of the SCNPC for adopting the provisions.

Article II(1): The Composition of the Nominating Committee

The first provision is Article II(1) of the 8.31 Decision. It provides that the nominating committee shall follow the current composition of the Election Committee for the Fourth Chief Executive and have 1,200 members from four major sectors in equal proportions, to be selected by the existing method provided for in Annex I to the Basic Law. Rules for the formation of the nominating committee should ensure the maximum extent of participation of the electorate and parity in such participation by individual members of the electorate.

Mr. Li Fei outlined three major considerations for Article II(1). The first was the legislative intent of “a broadly representative nominating committee” in Article 45(2) of the Basic Law. Mr. Li stated that “broadly representative” in the context of the nominating committee under Article 45(2) carries the same meaning as that in “a broadly representative Election Committee” under the current Annex I to the Basic Law. It was said that the earlier Decision of the SCNPC of 29 December 2007, which paved the way for implementing Chief Executive election by universal suffrage in 2017, had indicated this common theme. This statement in the Explanations, referring as it did to the legislative intent of a provision of the Basic Law, is a justificatory imposition, as opposed to a justificatory reason. Past experience of the SCNPC’s exercises of its power of interpretation of the Basic Law, which was vested with it by virtue of Article 158 of the Basic Law,[12] indicates that the SCNPC ascertained the meaning of the provision in question and may supplement the provision by first stating the legislative intent of that provision. Thus it appears that the SCNPC had sought to justify Article II(1) through a de facto interpretation of Article 45(2) of the Basic Law.

It is not uncommon for legislatures to enact laws or make resolutions based on a particular understanding of the constitutional instrument. A recent example is the enactment of “collective security” legislation by the Japanese Parliament on the basis of an understanding of the Constitution of Japan, Article 9 adopted by the Abe Government. What I consider troublesome is that both the Basic Law itself and its subsequent practice (including by the SCNPC itself) provide for the formal exercise of the power of interpretation of provisions of the Basic Law by the SCNPC, involving an express and specific procedure that includes consulting a Committee for the Basic Law established under the SCNPC.[13] While Mr. Li Fei mentioned in the Explanations that the responsible officials entrusted by the Chairmen’s Council of the SCNPC had listened to, among other categories of consultees, the views of the Hong Kong members of the Committee for the Basic Law after the Chairmen’s Council had decided on 18 August 2015 to include in the agenda of the August 2015 Session of the SCNPC the implementation of Chief Executive selection by universal suffrage in 2017 for the purpose of decision-making, this is no replacement of consulting the Committee for the Basic Law as a whole and on its own where an interpretation of a provision of the Basic Law were contemplated.[14]

A possible defence to not consulting the Committee for the Basic Law is that the SCNPC was engaging in August 2015 with decision-making pursuant to a procedure set up under its Interpretation of Article 7 of Annex I and Article III of Annex II to the Basic Law (which was adopted on 6 April 2004) and following the terms of its Decision of 29 December 2007 (which was said to have been adopted also pursuant to the same procedure) and that procedure does not require consultation of the Committee for the Basic Law.[15] This defence exposes the apparently inherent flaw that since the 2004 Interpretation was adopted under Article 158 of the Basic Law, its progeny should likewise be treated as subject to Article 158, including the requirement of consulting the Committee for the Basic Law.

While I feel that this argument appeals to logic and reason, and some readers may share my view, they should, however, note that I make no assumption at the outset that the SCNPC regards itself as bound by the path it has chosen on a prior occasion and would not make the rules up as it goes on discharging the business of the State of the day.

Can this operative part of the 8.31 Decision therefore be impugned?

Two points need to be made. The first is that there is no neutral dispute settlement mechanism between the Central Authorities and the Hong Kong SAR under the Basic Law; the SCNPC therefore can say what the Basic Law means through invoking Article 158 of the Basic Law and such an interpretation would have to be followed by the Hong Kong SAR courts.[16] The second is that the objection discussed above is more of a “manner and form” type of concern. To seek invalidate a decision of the standing body of the highest organ of state power on such a ground appears unrealistic, as the SCNPC can determinatively remedy the perceived “defect” if it thinks fit. It is more prudent therefore to examine the substance of this “interpretation” or statement of legislative intent.

Again, one faces the reality that legislative intent is essentially what the SCNPC says it is, unless one can attempt to contradict what has been said with Basic Law drafting history and the proceedings of the NPC back in 1990 when the Basic Law was enacted. A modest food for thought in this regard is that as a matter of substance, the election committee under the present Chief Executive electoral method and the nominating committee under a method for implementing Chief Executive election by universal suffrage are not comparable bodies in terms of purpose and function. The former nominates and elects the Chief Executive. The latter only nominates candidates for the over 3 million eligible voters in Hong Kong to exercise their universal suffrage franchise. Accordingly, the nomination committee’s function is not to determine the Chief Executive election but rather to preserve for the voting public a plurality and variety of choices. It is clearly possible to constitute a “broadly representative” nominating committee for the purpose of achieving this important function in a way otherwise than by reference to the sectorial makeup of the current election committee.

The second major consideration that Mr. Li Fei relied on in the Explanations for the draft Article II(1) of the 8.31 Decision was the experience of Chief Executive elections conducted with an election committee. Mr. Li suggested that the election committee achieved balanced participation of all sectors and was therefore in conformity with the actual situation of Hong Kong. He claimed that such balanced participation has continued to be an objective when it comes to nominating candidates for Chief Executive election by universal suffrage and a nominating committee in line with the formation of the Election Committee for the Fourth Chief Executive would achieve that objective and fend off various risks during the election of the Chief Executive by universal suffrage.

Whether this major consideration is legitimate or not and has rational connection with the draft Article II(1) or not depends on one’s appreciation of the sectorial composition of the current election committee composed of four sectors of equal proportions. A study conducted by Hong Kong scholars indicate the “gross and unjustified disparities in voting power” between voters in different subsectors, as well as the fact that over 90% of the eligible voters are left out of the process of the formation of the election committee. Thus it was contended that the election committee “is neither a microcosm of Hong Kong society nor representative of the views of the general electorate” and the system of its formation was “neither fair, nor open, nor democratic”.[17] On the other hand, Mainland scholars viewed positively the representation of the leaders of commerce, industry and finance in one of the four sector constituting one quarter of the members of the election committee and the representation of the professions in another of the four sectors, since these two sectors ensure that those who have made significant contribution to the capitalist economy of Hong Kong are appropriately represented, with their preferences likely to be conducive to the maintenance of stability and prosperity of Hong Kong.[18]

The third major consideration relied on by Mr. Li Fei in support of Article II(1) of the 8.31 Decision was  the “relatively more views in the Hong Kong community that the composition of the nominating committee should be decided with reference to the existing method for forming the Election Committee”. This appears to be a preference based on an appreciation of public opinion and does not necessarily qualify as a major consideration, at least from the legal point of view.

Article II(2): Maximum Number of Nominated Candidates and Endorsement by More Than Half of Members of Nominating Committee

The other two restrictive requirements of the 8.31 Decision are in Article II(2). The first places a maximum limit on the number of candidates that the nominating committee may nominate. The second requires each such candidate to have the endorsement of more than half of the members of the nominating committee. Mr. Li Fei also explained why they were to be imposed.

As to placing a maximum limit on the number of candidates that the nominating committee may nominate, Mr. Li Fei began his explanation with the apparent acceptance that the Chief Executive election by universal suffrage should “ensure a truly competitive election and present voters with real choices”. But then he expressed concern over “problems such as complicated electoral procedures and high election costs caused by having too many candidates”, so that it was appropriate to place a numerical restriction on the total number of candidates that the nominating committee can nominate and having considered the experience of the previous Chief Executive elections (which were conducted with 2 to 3 candidates), the appropriate limit was thought to be 2 to 3 candidates and no more.

Assuming that ballot overcrowding is a legitimate concern, prescribing by law a maximum number of candidates on the ballot through limiting the numerical range of candidates the nominating committee is very likely to be treated objectively as too sweeping a means to address the issue. Overseas jurisdictions have many mechanisms to prevent overcrowded ballots. Some of those, such as a substantial filing fee or deposit, have already been introduced into Hong Kong. In practical terms, the costs and human efforts of running an election campaign in the whole of Hong Kong will be prohibitive to many. This places another limit to the number of “serious” contenders.

More importantly, since it is the nominating committee that decides on nomination of candidates, its rules of nomination (with regulatory provisions on how its members may support applicants for candidature and how the members may decide on nominations) would in their operation lead to a finite number of candidates that can be nominated by the nominating committee in practice, without there being an explicit numerical limitation on number of candidates in electoral law. Prescribing the numerical limitation is not only an unnecessary step but also can be regarded as circumscribing the proper province of the nominating committee.

Mr. Li Fei indicated that the proposal requiring a Chief Executive candidate to have the endorsement of more than half of the members of the nominating committee was based on three major rationales. The first major rationale was that the nominating committee, as the specialized institution for nomination under Article 45(2) of the Basic Law for a Chief Executive election by universal suffrage, must exercise the power to nominate Chief Executive candidates collectively. This proposition by itself does not invite controversy. Rather, it was Mr. Li’s assumption (as well as the SCNPC’s apparent thought) that that collective decision-making by an institution by “democratic procedures” means “majority rule”, irrespective of the function of that institution, that is constitutionally contentious.

Once again, it deserves reiteration that the function of the nominate committee is to nominate candidates for election by the electorate by universal suffrage; its function or purpose is not to determine the result of the Chief Executive election. Therefore, while collective decision-making of the nominating committee by democratic procedures to nominate candidates for the Chief Executive election by universal suffrage may necessarily require the applicants or contenders for nomination to obtain the support of a substantial number or proportion of members of the nominating committee, requiring an applicant or contender to obtain a simple majority support of the nominating committee runs exactly that risk of the nominating committee pre-determining the choices available to the electorate to such an extent that a “free choice of candidates” among the variety of alternatives is not possible or to have the effect of excluding popular contenders for nomination on an established ground of discrimination (such as political or other opinion). The European Court of Human Rights had indicated that “there can be no democracy without pluralism”. [19] The right to vote and the right to stand in elections for elections of Hong Kong SAR permanent residents can only be guaranteed if the Chief Executive election is one that presents a genuine choice.

Mr. Li’s second major rationale drew on the sectorial composition of the nominating committee and the principle of “balanced participation”.  Here, it can be said that this is reliance on the same justificatory imposition, as the SCNPC had sought to pronounce legislative intention in respect of Article II(1) specifying for the sectorial composition of the nominating committee. And I shall not repeat my discussion on the use of legislative intention by the SCNPC in the 8.31 Decision. I would only add that the requirements in Article II(2) of the 8.31 Decision ought to be assessed in the light of the requirements under Article II(1) of the same. Given the composition of the nominating committee as required by Article II(1), the requirements in Article II(2) makes it even more unlikely that there will be a plurality of candidates of different political persuasions or “a free choice of candidates”, so that the right to vote of Hong Kong SAR permanent residents is not unreasonably restricted.

Mr. Li’s third and last major rationale for collective nomination by the nominating committee through a simple majority decision-making procedure relied on views received from the Hong Kong community, including those that called for a proportion to be specified. Such a rationale paid little regard to the principle of subsidiary implicit in the Basic Law’s underlying thought of “One Country, Two Systems” that enables and allows the Hong Kong community to discuss and come to a consensus on the proportion. It also failed to address the question that the views from Hong Kong implicated, namely what principles should inform the specification itself. As indicated above, the  specification of the proportion must be consistent with the function of the nominating committee and takes meaningful account of the right of HKSAR permanent residents to stand for election without unreasonable restrictions. What Mr. Li had not relied on this connection was the experience of previous Chief Executive elections, where a much lower threshold was prescribed for nomination of candidates in those elections. By comparison, the requirement of endorsement of more than half of the members of the nominating committee would appear regressive.

Concluding Remarks

I could have given Mr. Li Fei’s Explanations a more rigorous examination by way of proportionality analysis than the discussion above. Nonetheless, the irregularities, inadequacies and top-down nature of the 8.31 Decision are illustrated in some detail. Some of the restrictions can withstand the examination by the SCNPC not recognizing the essentially “divisive” precept of exercising a particular power only according to the law and procedure prescribed specifically to govern the exercise of that power.[20] Other restrictions are plainly more suspect. A starting point to re-visit the 8.31 Decision from the legal perspective may be the requirement in Article II(2) restricting the maximum number of candidates that the nominating committee may nominate. This may be a suggestion on the least significant of the restrictions. Yet it is a step that one can take on firm and sure ground.

Suggested Citation: P.Y. Lo, Back to the Legal Basics: A Note at the Anniversary of the Hong Kong Umbrella Movement, Int’l J. Const. L. Blog, Oct. 3, 2015, at: http://www.iconnectblog.com/2015/10/back-to-the-legal-basics-a-note-at-the-anniversary-of-the-hong-kong-umbrella-movement


[1] For scholarly discussions of the Umbrella Movement, see Johannes Chan, Hong Kong’s Umbrella Movement (2014) 103(6) The Round Table: Commonwealth Journal of International Affairs 571; Stephan Ortmann, The Umbrella Movement and Hong Kong’s Protracted Democratization Process (2015) 46(1) Asian Affairs 32; Michael Davis, The Basic Law, Universal Suffrage and the Rule of Law in Hong Kong (2015) 38 Hastings Int’l & Comp. L. Rev. 275; and Jermain Tam, Political Decay in Hong Kong after the Occupy Central Movement (2015) 42(2) Asian Affairs: An American Review 99. There have also been many conferences, roundtables and seminars, both in Hong Kong and abroad, on various aspects concerning or arising out of the Umbrella Movement. For examples, a roundtable organized by the French Centre for Research on Contemporary China, Hong Kong Baptist University (19 March 2015), a conference held by the National University of Singapore’s Centre for Asian Legal Studies (14-15 May 2015), a seminar on “Hong Kong’s Umbrella Movement and Beyond” at the East-West Center (28 July 2015), and the City University of Hong Kong’s School of Law’s Conference on the Occupy Central Movement and its Aftermaths (18-19 September 2015) (at: http://www.cityu.edu.hk/slw/OCM/bios.html).

[2] The text of the 8.31 Decision is accessible at: http://www.2017.gov.hk/filemanager/template/en/doc/20140831b.pdf.

[3] See Wall Street Journal blog, at: http://blogs.wsj.com/chinarealtime/2015/06/18/why-did-pro-beijing-lawmakers-walk-out-of-the-hong-kong-vote/

[4] See Bloomberg Business, at: http://www.bloomberg.com/news/articles/2015-09-27/occupy-hong-kong-anniversary-reignites-debate-on-city-s-election; and The Guardian, at: http://www.theguardian.com/world/2015/sep/27/hong-kong-democracy-activists-ask-what-protest-achieved-umbrella.

[5] Article IV of the 8.31 Decision makes it clear that if no amendments to Annex I to the Basic Law to implement universal suffrage in the method of selection of the Chief Executive, the method of selection used in respect of the Chief Executive of the previous term would apply.

[6] The title of the 8.31 Decision says that it decides on “Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage”. The preamble of the same states the views of the Session of the SCNPC that it “finds it necessary to make provisions on certain core issues concerning the method for selecting the Chief Executive by universal suffrage” and that in the light of the Chief Executive’s accountability to both the Hong Kong SAR and to the Central People’s Government, as well as his functions and duties, the method for selecting the Chief Executive by universal suffrage must provide “institutional safeguards” to ensure the upholding of “the principle that the Chief Executive has to be a person who loves the country and loves Hong Kong”. To complete the picture and seal the fate, Article III of the operative part of the Decision specifies that the bill on the amendments to Annex I to the Basic Law and the proposed amendments to such bill shall be introduced by the HKSAR Government to the Legislative Council in accordance with the Basic Law and the 8.31 Decision (i.e. “the provisions of this Decision”).

[7] See P.Y Lo, Squaring the “Universal Suffrage” Circle in Hong Kong’s Transition to Democracy under the Guidance of China, Int’l J. Const. L. Blog, Feb. 8, 2014, at:  http://www.iconnectblog.com/2014/02/squaring-the-universal-suffrage-circle-in-hong-kongs-transition-to-democracy-under-the-guidance-of-china.

[8] See Yan Lin and Tom Ginsburg, Constitutional Interpretation in Lawmaking: China’s Invisible Constitutional Enforcement Mechanism? 63 Am. J. Comp. L. 467 (2015).

[9] For a discussion of some recent contacts between officials of the Central Authorities and some individuals who had opposed the Hong Kong SAR Government’s proposal for implementing Chief Executive election in 2017 by universal suffrage, see Suzanne Pepper, Beijing’s New Idea: A Loyal Opposition (14 September 2015) at: http://chinaelectionsblog.net/hkfocus/?p=1375.

[10] See R v Oakes (1986) 26 D.L.R. (4th) 200 (SCC); De Freitas v Ministry of Agriculture [1999] 1 A.C. 69 (PC); Kong Yunming v Director of Social Welfare (2013) 16 H.K.C.F.A.R. 950 (HKCFA).

[11] An English translation of the Explanations, prepared by the Hong Kong SAR Government, is at: http://www.2017.gov.hk/filemanager/template/en/doc/20140827a.pdf.

[12] See Basic Law of the Hong Kong SAR, Article 158, which I thoroughly discussed in P. Y. Lo, The Judicial Construction of Hong Kong’s Basic Law: Courts, Politics and Society in Hong Kong after 1997 (Hong Kong University Press, 2014) pp 371-441. It should be noted that Article 158(1), which vests the power of interpretation of the Basic Law with the SCNPC, mirrors Article 67(4) of the PRC Constitution, which vests the power of the interpretation of national laws with the SCNPC (and the Basic Law is a national law under the PRC’s hierarchy of laws). It should also be noted that the state system of the PRC (including the power of interpretation of laws by the standing body of its highest organ of state power) is based on the Stalinist concept of law, a principal feature of which is centralization and unification of power; see Sophia Woodman, Legislative Interpretation by China’s National People’s Congress Standing Committee: A Power with Roots in the Stalinist Conception of Law, in Fu Hualing, Lison Harris and Simon Young (eds), Interpreting Hong Kong’s Basic Law: The Struggle for Coherence (Palgrave Macmillan, 2007) pp 229-241. William Partlett and Eric Ip’s forthcoming paper on The Death of Socialist Law? in the NYU J. I. L. P. will take this matter further.

[13] See Basic Law of the Hong Kong SAR, Article 158(4).

[14] Simon Young noted that the absence of the formal requirement to consult the Committee for Basic Law and considered that an anomaly since interpretations and amendments of the Basic Law require such consultations and the 8.31 Decision “necessarily involved an interpretation of Art 45”; see Simon Young, Rethinking the Process of Political Reform in Hong Kong (2015) 45 H. K. L. J. 381 at 386.

[15] Hong Kong politicians had sought to challenge the legality of the 8.31 Decision by suggesting that the step that the SCNPC was obliged on the occasion of the 8.31 Decision under the procedure prescribed under the 2004 Interpretation was the modest one of either approving or rejecting any need to amend the existing method of selection of the Chief Executive. Under the same procedure, the SCNPC had the power, at the final step, to approve the bill of amendment adopted in Hong Kong for amending the method of selection of the Chief Executive. An application seeking to challenge the 8.31 Decision indirectly in the Court of First Instance in Hong Kong was premised upon this argument; see Leung Lai Kwok Yvonne v Chief Secretary for Administration (HCAL 31/2015).

[16] Whether the Hong Kong SAR courts can hear and determine an application for declarations on the validity of the 8.31 Decision deserves a separate article. But it is very likely that, following the dismissal of the Yvonne Leung case (above) on 5 June 2015, the matter has become moot.

[17] See Yash Ghai’s summary of the findings in Simon Young and Richard Cullen, Electing Hong Kong’s Chief Executive (Hong Kong University Press, 2010) p ix. See also Simon Young, Hong Kong – universal suffrage, constitutional reform and occupy central protests [2015] Public Law 158, who made the point that from the 2012 Chief Executive election process, it can be seen that the over-representation of business and professional elites and pro-Beijing labour and political leaders enables easy manipulation of the will of the Election Committee by the Central Authorities.

[18] See, for example, the views of Professor Wang Zhenmin, the dean of the Law School of the Tsinghua University and a member of the Committee for the Basic Law, reported at: http://sinosphere.blogs.nytimes.com/2014/08/29/wang-zhenmin-on-hong-kong-democracy-and-protecting-the-rich/.

[19] Socialist Party & Ors v Turkey (1998) 27 EHRR 51, para 41.

[20] The centralist and unifying mindset of the PRC Central Authorities of state power can once again be illustrated by the speech of Zhang Xiaoming, the Director of the Liaison Office of the Central People’s Government in the Hong Kong SAR, instructing the Hong Kong public on 12 September 2015 on the particular political system of the Hong Kong SAR. Mr. Zhang’s starting point was the specific constitutional position of the Chief Executive in the Basic Law. He then went on to refute any claim that the political system of Hong Kong SAR is that of the “separation of the three powers” and asserted that the Chief Executive has a “special legal status” transcending the executive authorities, the legislature and the judiciary of the Hong Kong SAR. This speech has led to the raising of eyebrows instead of nods, not least because, if read partially or improperly, it could be taken by either the uninformed or the keen competitor as evidence of the Central Authorities circumscribing Hong Kong’s Rule of Law in the common law tradition, with an independent judiciary administering justice free from any interference according to the law and its spirit, with no one or office above the law; see Suzanne Pepper, Beijing’s Learning Curve (21 September 2015) at: http://chinaelectionsblog.net/hkfocus/?p=1381 and Statement of the Hong Kong Bar Association on the Speech of Director Zhang Xiaoming at the Seminar held on 12 September 2015 marking the 25th Anniversary of the Promulgation of the Basic Law of the Hong Kong Special Administrative Region (14 September 2015) at: http://www.hkba.org/whatsnew/press-release/20150914%20-%20Press%20Statement%20of%20HKBA%20-%20English.pdf.

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Published on October 3, 2015
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