VIII. Developments in Hong Kong During 2005

Central Government Interference in Hong Kong Local Governance | Independent Judiciary

The United States supports a stable, autonomous Hong Kong under the "one country, two systems" formula articulated in the Sino-U.K. Joint Declaration and the Basic Law.¹ The Hong Kong people continue to enjoy an open society in which the freedoms of religion, speech, and assembly are respected, but the Commission is troubled by a continuing pattern of central government interference in Hong Kong local governance through interpretations of the Basic Law. The Commission emphasizes its belief in the importance of the central government's obligation to give Hong Kong the "high degree of autonomy" promised in the Basic Law and strongly supports the provisions of the Basic Law that provide for the chief executive and the entire legislature to be elected through universal suffrage.²

Central Government Interference in Hong Kong Local Governance

In April 2005, the National People's Congress Standing Committee (NPCSC) issued a Basic Law interpretation to change the length of the next chief executive's (CE)³ term of office from five to two years,⁴ continuing a pattern of interference by the central government in the local governance of Hong Kong.⁵ Following the resignation of Tung Chee-hwa as CE in March 2005,⁶ pro-Beijing and pro-democracy Hong Kong legislators debated whether his successor would serve the full five-year term prescribed by the Basic Law or only the remaining two years of Tung's term.⁷ Pro-democracy advocates launched a legal challenge against the two-year term proposal in the Hong Kong courts, but the judicial review process was cut short when the Hong Kong government, under pressure to ensure that the CE election was held on time, requested that the NPCSC resolve the controversy by interpreting the relevant articles in the Basic Law.⁸ As expected, the NPCSC ruled in favor of a two-year term, effectively closing the issue for further discussion.⁹

Compared with previous interpretations, however, central authorities and their Hong Kong supporters showed greater responsiveness to the viewpoints of pro-democracy advocates. In addition to previously established consultative practices, senior Beijing officials met in Shenzhen to discuss the CE term issue with pro-democracy legislators, some of whom had been banned from entering the mainland.¹⁰ Some pro-democracy leaders saw this meeting as a gesture of goodwill and a sign that central government leaders wish to mend ties.¹¹ The exclusion of other pro-democracy legislators, however, supports the criticism that the meeting was a "public relations exercise" rather than an effort to engage in genuine dialogue.¹²

Independent Judiciary

The Hong Kong judiciary demonstrated its continued independence when Hong Kong's commitment to rights and law were tested against Communist Party-led abuses on the mainland. A May 2005 decision by the Hong Kong Court of Final Appeal (CFA) overturned the convictions of eight Falun Gong practitioners and protected citizen rights to demonstrate, despite the central leadership's ongoing campaign to eliminate the Falun Gong movement. In 2002, Hong Kong police arrested the practitioners for obstructing a public thoroughfare during a peaceful protest outside a government office building.¹³ In its decision, the CFA reasoned that the public's interest in the use of public facilities must be balanced against the constitutionally protected rights of assembly and expression enshrined in the Basic Law.¹⁴ The Commission notes that the May 2005 CFA decision might not have been possible if the Hong Kong people had not soundly rejected the proposed Article 23 national security legislation in 2003. The Article 23 legislation would have permitted the Hong Kong government to ban any Hong Kong-based group, such as Falun Gong, whose parent organization had already been publicly banned by the central government on national security grounds.

A May 2005 news article reported that Hong Kong police officials welcomed the ruling because "they felt the ruling had cleared previously grey areas and would make it easier for them to decide whether a protest had caused an unreasonable obstruction to the public" and "hoped that with more clear-cut guidelines on what kind of protests should be stopped, the police would not be accused of acting under orders from Beijing in stopping events that mainland authorities may not like."¹⁵ Mainland news media, however, criticized the CFA's decision; one editorial found it "regrettable that CFA has deviated from the principle that all are equal before the law and has failed to strike a fair and reasonable balance between the public interest and the demonstrators' rights."¹⁶ The editorial suggested Chinese government discomfort with the idea that the application of public obstruction laws must be reasonable, and that fundamental constitutional rights must be given substantial weight in considering reasonableness.¹⁷

Notes to Section VIII—Developments in Hong Kong During 2005

1 United States-Hong Kong Policy Act of 1992, Public Law No. 102–383, as enacted 4 April 90. The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, enacted 4 April 90; Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, adopted 19 December 84.

2 The Basic Law of the Hong Kong Special Administrative Region of the PRC, arts. 45 and 68.

3 The chief executive (CE) is the head of the Hong Kong Special Administrative Region (HKSAR) and is accountable to both the Central People's Government of the PRC and the HKSAR. Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, enacted 4 April 90, art. 43.

4 Article 46 of the Basic Law states that the term of office of the CE shall be five years.

5 In 1999, the NCPSC issued an interpretation overturning a decision by the Hong Kong courts that would have allowed mainlanders with a Hong Kong parent to claim residency. In April 2004, the NCPSC interpreted the Basic Law to strike down a proposal allowing universal suffrage in the elections for the CE in 2007 and Legislative Council in 2008, despite widespread public approval in Hong Kong. See CECC, 2004 Annual Report, 104–6.

6 Tung stepped down from office amidst growing public discontent with his governance. In December, Hu Jintao urged Tung in a videotaped meeting to "summarize [his] experience and identify inadequacies," which was widely interpreted as a public expression of Beijing's dissatisfaction with Tung's performance. In February, Tung was appointed a vice chairman of the Chinese People's Political Consultative Conference, setting the stage for his formal resignation as CE on March 10. For a detailed account of Tung's resignation process, see Frank Ching, "From Tung to Tsang: Hong Kong's Leadership Shuffle," Jamestown Foundation China Brief, 21 June 05, 4.

7 A majority of the Hong Kong legal community, including the Hong Kong Bar Association and Legal Society, supports the viewpoint that the Basic Law only permits a five-year CE term length. Bureau of East Asian and Pacific Affairs, U.S. Department of State, U.S.-Hong Kong Policy Act Report (Online), 1 April 05. According to Hong Kong political analysts, Beijing favored a two-year term because it still did not fully trust Donald Tsang, the front-runner in the July CE election who served as a civil servant under British rule, and therefore wanted a shorter term length as a probationary period. Helen Luk, "Next Hong Kong Leader to Serve Five Years," Associated Press, 27 April 05.

8 On April 4, Carl Ching, president of the Grassroots Democratic Society, applied for the Hong Kong High Court to review the legality of a two-year CE term under the Basic Law. Albert Wong, "Grassroots Leader Files Judicial Challenge to Chief Executive Tenure," The Standard, 5 April 05 (FBIS, 5 April 05). In a joint letter to the Hong Kong government, a coalition of pro-democracy legislators called on the government to refrain from seeking an interpretation from the NPCSC. They pointed out that the Basic Law contains no provision that allows the government to make such a request. Dennis Eng, et al., "Hong Kong 'Activist' Seeks Judicial Review of Chief Executive Tenure," South China Morning Post, 5 April 05 (FBIS, 5 April 05). Despite the objections of the pro-democracy camp, Donald Tsang, the acting CE at the time, submitted a report on April 6 to the State Council, proposing that the State Council request that the NPCSC issue an interpretation to resolve the issue. Chris Hogg, "China to Settle New Hong Kong Chief Executive Row," BBC News (Online), 6 April 05.

9 A draft interpretation was examined at the 15th session of the 10th NPCSC (April 24–27). "NPC Standing Committee Starts to Examine Draft Interpretation of HKSAR Basic Law," Xinhua, 25 April 05 (FBIS, 25 April 05). On April 27, the NPCSC formally endorsed the draft interpretation. "Hong Kong Chief Secretary Welcomes Basic Law Interpretation," RTHK Radio 3, 17 April 05 (FBIS, 27 April 05). For the full text of the interpretation, see "Comparisons-Explanations on NPC Draft Interpretation of Hong Kong Basic Law," Xinhua, 27 April 05 (FBIS, 27 April 05). For a detailed analysis of the legal and political dimensions of the interpretation, see National Democratic Institute for International Affairs, "The Promise of Democratization in Hong Kong: The 2005 Chief Executive Election," NDI Hong Kong Report #10, 21 June 05.

10 Central authorities repeated the consultative exercises it adopted during its 2003 interpretation regarding universal suffrage. These consultative exercises included meetings with Hong Kong's legal sector and local deputies to the NPC, Chinese People's Political Consultative Conference and Election Committee. "Beijing Ruling Likely to Trigger 'Massive Street Protests' in Hong Kong," The Standard, 8 April 05 (FBIS, 8 April 05).

11 "Beijing Invites Pro-Democracy Legislators to Air Views on Basic Law," South China Morning Post, 15 April 05 (FBIS, 15 April 05).

12 Cannix Yau, "Martin Lee, 'Longhair' Not Included in Invite to Discuss Basic Law," The Standard (Online), 15 April 05 (FBIS, 15 April 05).

13 A Hong Kong trial court convicted the demonstrators of obstructing a public place, willful obstruction of police, and (in the case of one demonstrator) assault. In 2003, a lower appeals court overturned the public obstruction convictions but upheld the willful obstruction and assault convictions. The CFA case upheld the appeals court's overturning of the public obstruction conviction and overturned the remaining convictions.

14 In the Court of Final Appeal of the Hong Kong Special Administrative Region, Final Appeal No. 19 of 2004 (Criminal) (On Appeal from HCMA No. 949 of 2002) FACC No. 19 of 2004.

15 Benjamin Wong, "Police Welcome Falun Gong Ruling," South China Morning Post (Online), 7 May 05.

16 "A Balance Between Protesters' Rights and Public Interest Needed," China Daily (Online), 7 May 05.

17 Ibid.