–Alvin Y.H. Cheung, Visiting Scholar, U.S.-Asia Law Institute, NYU School of Law
It has been known for about two thousand years that it is impossible for one person to serve two masters. Unfortunately, this lesson was lost on the Drafting Committee of Hong Kong’s Basic Law. Under current arrangements, Hong Kong’s Chief Executive is selected by an “Election Committee” of 1,200–the composition of which disproportionately favours pro-Beijing interests–and appointed by the Central Government in Beijing.
Hong Kongers have been promised that they will eventually be able to elect their Chief Executive by universal suffrage.[1] However, Beijing has made clear that its version of “universal suffrage” involves the electorate rubber-stamping a decision made by a Nominating Committee–in essence, the Election Committee by another name.[2] In a similar vein, current Chief Executive CY Leung suggested that any electoral system is “genuine universal suffrage as long as it is in accordance with their constitution, system and electoral law”–an “Orwellian” definition that would allow any country to lay claim to having “universal suffrage.”
Beijing’s refusal to relinquish its stranglehold over the selection of Hong Kong’s Chief Executive has its roots in that office’s dual mandate, and in China’s approach to devolution. As Alyssa S. King and I argue in a forthcoming paper, the office of Chief Executive suffers from two sets of poor historical precedent. The office’s extensive powers are based on those of British colonial governors–a model that is ultimately reliant on central governmental goodwill, and which remains vulnerable to demands for greater regional autonomy. Yet the Chief Executive is also one of Beijing’s representatives in Hong Kong–and Beijing’s track record on local cadres maintaining regional autonomy is far from reassuring. For instance, Beijing’s insistence that ethnic-minority cadres in autonomous regions be members of the national Communist Party has significantly undermined their effectiveness in representing their ethnic groups.[3] The limits on Hong Kong electoral reform reflect a similar strategy of keeping local officials on a tight leash.
One solution to the impasse is to bifurcate the existing office of Chief Executive.
Under the Basic Law, Hong Kong is supposed to enjoy a “high degree of autonomy” except in foreign and defence affairs. One possibility is to assign foreign and defence affairs, as well as the representation of Mainland interests, to the Central Government’s Liaison Office–an entity that already exists–and restrict the Chief Executive’s remit to purely domestic powers. Similar proposals have emerged before–and from rather unexpected quarters.
In early July 2014–months before the National People’s Congress Standing Committee issued its Decision on Chief Executive selection for 2017–HK Magazine released an issue containing a “Modest Proposal” to create a mayoral office, distinct from that of the Chief Executive. The weekly magazine–better known for reviewing expat watering holes and a festival known as Clockenflap–suggested that “all matters that pertain to ‘state-like’ affairs” such as monetary policy, immigration, foreign relations, and Mainland relations be vested in the Chief Executive, with all municipal powers vested in the new office of mayor. However, the Chief Executive would retain a power of veto over “un-patriotic” mayoral policies or decisions.
Reactions to HK Magazine’s proposal were lukewarm at best. Experts either damned the proposal with faint praise by commending the magazine for its creativity, or dismissed the suggestion as impractical in light of political realities. The prospect of an undemocratically selected Chief Executive vetoing a democratically elected mayor drew particular scepticism. Yet the idea of separating “municipal” executive roles from those impinging on the Mainland’s responsibilities towards Hong Kong enjoys more official support than the proposal’s critics acknowledged.
Support for a similar idea can be found in a 2008 article in Study Times (English translation by eminent Hong Kong barrister and Civic Party politician Margaret Ng)–a publication run by the Central Party School in Beijing–a fount of Party doctrine and national policy. In that article Cao Erbao (曹二寶), then head of the Research Department in the Central Government’s Hong Kong Liaison Office, suggested that post-1997 Hong Kong had “two governing teams”. One of these consisted of the Hong Kong government, led by the Chief Executive, exercising delegated authority under the Basic Law.[4] The other–the “team of cadres of Central and Mainland Authorities carrying out Hong Kong work”–was responsible for Mainland-Hong Kong relations and was not to interfere with matters within Hong Kong’s autonomy. Cao went on to argue that it was necessary for Mainland cadres to “operate openly as a legitimate governing team”.
Subsequent conduct by the Liaison Office suggests that Cao’s advice about the role of a second “governing team” has been taken to heart. However, its conduct–and Cao’s own work in the Liaison Office–are at odds with the principle of non-interference with matters within Hong Kong’s autonomy. The Liaison Office has been accused of threatening Hong Kong media bosses, controlling pro-establishment politicians, and canvassing support for the selection of CY Leung as Chief Executive in 2012. Cao himself was allegedly involved in the latter–by seeking to suppress an investigation into Leung’s alleged conflict of interest in the 2001 West Kowloon cultural hub design contest.
The creation of a mayor–or a clearer division of municipal and Mainland-facing powers between two separate offices–would help address Hong Kong’s current institutional imbalance. As we note in our paper, there are currently few reasons for a Chief Executive to favour the interests of Hong Kongers when they come into conflict with those of the Mainland. A clearer separation of roles would allow a mayor to protect local interests more effectively. Such a separation would also free Beijing, and the “second governing team,” from the burden of having to back an unpopular Chief Executive.
The bifurcation of executive powers might be a useful starting point to address the Hong Kong government’s continuing crisis of legitimacy. But–as the increasing involvement of the Liaison Office in Hong Kong politics shows–it would only be a starting point. The second major sticking point in Hong Kong constitutional politics–Beijing’s continued desire to limit the scope for meaningful autonomy–is unlikely to be nearly as easy to resolve through institutional redesign.
Suggested Citation: Alvin Y.H. Cheung, Does Hong Kong Need a Mayor?, Int’l J. Const. L. Blog, Apr. 1, 2015, at: http://www.iconnectblog.com/2015/03/does-hong-kong-need-a-mayor
[1] Zhonghua Renmin Gongheguo Xianggang Tebie Xingzhengqu Jibenfa [Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China] (Promulgated by Order No.26, Pres. of China, Apr. 4, 1990, effective Jul. 1, 1997), art. 45(2); Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Xianggang Tebie Xingzhengqu 2012 Nian Xingzheng Zhangguan He Lifa Hui Chansheng Banfa Ji Youguan Puxuan Wenti de Jueding (全国人民代表大会常务委员会关于香港特别行政区2012年行政长官和立法会产生办法及有关普选问题的决定) [Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2012 and on Issues Relating to Universal Suffrage] (adopted by the Standing Comm. Nat’l People’s Cong., Dec. 29, 2007).
[2] Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Xianggang Tebie Xingzhengqu Xingzheng Zhangguan Puxuan Wenti He 2016 Nian Lifa Hui Chansheng Banfa De Jueding (全國人民代表大會常務委員會關於香港特別行政區行政長官普選問題和 2016 年立法會產生辦法的決定) [Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Selection of Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region In the Year 2016] (adopted by the Standing Comm. Nat’l People’s Cong., Aug. 31, 2014).
[3] See Xianfa arts. 113–114 (1982) (China); Xia Chunli, To Be the Masters of Their Own Affairs: Minorities’ Representation and Regional Ethnic Autonomy in the People’s Republic of China, 8 Asia-Pac. J. on Hum. Rts & L. 24, 28–29 (2007).
[4] Cao’s article also raised hackles by suggesting that the first “governing team” included the robustly independent Hong Kong judiciary – a sentiment repeated in the State Council’s White Paper of 2014.
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