Hong Kong: A House Divided

Section 3. Moving Past the Basic Law

Hong Kong’s Retrocession experience (both immediately before and after) has shown that collaboration outside of the bounds prescribed by its regional constitution’s  (the Basic Law) “one country, two systems” system between business Hong Kong business elites and Beijing is how Hong Kong has managed a relatively peaceful and prosperous change-over to Chinese rule. Throughout the literature, and throughout the scope of this paper, the association between democracy and capitalism has been made as a necessary one. In fact, events in Asia has shown that this association is not necessary for growth. The assumption I have been working with goes on to say that any harm to civil liberties or to the cause of a larger democracy movement can only do harm and injure economic prosperity.

However, Hong Kong’s past and current success does not confirm this assumption. Rather, Hong Kong’s business sector was built on the fact that the British provided a rules-based system backed by a rule of law that was widely known and publicly verifiable, which provided trust among foreign companies. The large “fixed costs” of this system are in creating a legislative branch that makes contract laws and a judiciary that enforces those contracts. Democracy, therefore, is not an integral part of this equation.

In the West, these guarantees are assumed, which is not the case in China. However, within Hong Kong’s system, the Executive Council provided a system of patronage to develop that was backed by a relatively strong rule of law. With the Retrocession, though, the viability of this rule of law was not guaranteed. Therefore, the common interests and agendas shared by Beijing and the Hong Kong business elite community were facilitated by political maneuvering and patronage politics that cannot be explained in the post-1997 period with a moralistic interpretation under the “one country, two systems” legal framework. Hong Kong’s relatively calm post-1997 experience can be better explained under the pragmatic lens of interpretation.

Much to the dismay of pro-democracy elements, events in the rest of the region also speak to this conclusion. Hong Kong’s success in the post-Retrocession more importantly reflects a shift away from this Western-rules-based system to a more “Chinese” relations-based guanxi system. China has not had the time or resources to create a comprehensive environment of legislation and enforcement. Also, despite the régime’s reputation for strict control in the West, the reality is that it has diffused economic and political control to the local levels, all the while maintaining strict scrutiny of Party members at those lower levels. This yields an ultra-federalist scheme that creates a tenuous atmosphere of order, which is required, according to some scholars, for a Hong Kong-style rules-based system.[1] Under this system, as we have seen in China, dealings and transactions are loose and personal, and therefore, are not verifiable. Arbitration under this system is not easy at all. Therefore, the implications for Hong Kong remain uncertain. There is great debate as to what role business patronage played and to what degree the rule of law played in Hong Kong’s economic success. At this point, Hong Kong is witnessing robust growth and economic recovery from the recent Asian financial crisis; this growth has occurred in a period in which the rule of law in Hong Kong is not as strong as it was before the handover. In fact, this trend away from a strict rule-based system towards a Chinese mode of a relationship-based system has taking place over the past 10 years. Therefore, in this conclusion I shall focus on two very public areas where this trend has been most evident, the courts and the media.

3.1 The Rule of Law in Hong Kong and the Right of Abode Case

As the last section argues, by the 1990s, an attitude of pragmatic self-interest on the part of the business elite had taken hold in Hong Kong. On a larger legislative and administrative level, a pro-China stance became standard policy. SAR officials have gone on record to admit that Hong Kong’s common law (the law established by judicial precedent) has been evolving to accommodate Mainland civil law (legislative law). The observation many have made is that at the local level and in courtrooms what is going on is essentially unchanged—an English legal tradition. On a larger scale, though, the role of the rule of law and administrative influence of the judiciary has been moving away from the high status it enjoyed under the British. This is not surprising, according to a South China Morning Post Editor C.K. Lau (1997). Lau makes the point that because the legal tradition used the English language in almost all aspects (jury trials, rulings issued, legislation, etc.) many of the territory’s populace were alienated from a legal tradition conducted in a foreign tongue.

Moreover, Lau makes the point that the Chinese avoid litigation. Traditionally, the Chinese held an aversion to the litigation as Imperial Law was only known for its strict criminal code that used torture, coercion to extract confessions, and had no apprehensions of wrongfully convicting the innocent in imperial adjudication courts. The common view that emerged on the part of many Chinese was that the rule of law (meaning courts and statutes) was only an instrument of punishment.[2] Therefore, the preference for handling disputes and negotiating matters outside of the courts came into being. Using guanxi to handle disputes between clans or families became the norm in business practices and in civil disputes as well.  Combined with an absence of a truly compressive legal system in China today, it can be argued that Mainland Chinese notions of law do not correspond to the Hong Kong legal system that the British left behind with them, but Mainland legal practices might appeal to Hong Kong’s populace, who are Chinese and practice customs and share a traditional Mainland common cultural heritage. In China, there are few legal guarantees because the law is often murky and contradictory. In the business realm, contracts and regulations are not yet immutable in China. Many small- to medium-scale business negotiations between foreigners and their Chinese partners revert to traditional guanxi-based tactics and deference. To resolve civil and business disputes in China, reputations are essential, and familiarity is a priority. Resolving disputes in China can get extreme, resulting in violence and even kidnapping. 

With this general understanding of the differences between conceptions of the Hong Kong legal system and the Mainland legal system, part of the background for the Right of Abode Case in Hong Kong is set. Resolution of the case, which involved Hong Kong’s highest court and one of Beijing’s highest legislative authorities, has created serious questions, if not a constitutional crisis, in Hong Kong that is also deeply rooted in economics.

By autumn 1997 the Chinese appointed Hong Kong government—the Hong Kong Special Administrative Region (HKSAR)—was in midst of trying to protect Hong Kong from the throes of the Asian Financial Crisis. Hong Kong’s economy had reached a stagnation point. A real-estate bubble had also burst as property prices fell, and the region was undergoing a currency attack by hedge-fund guru George Soros. Aside from propping up the Hong Kong dollar, many officials looked to Hong Kong’s past stages of economic growth for guidance: Hong Kong grew from cheap apparel manufacturing to manufacturing higher and higher quality goods to a burgeoning container-shipping industry to growth in the financial sector, with each stage accompanied by an influx of migrant labor.

However, by 1997 and throughout 1998, HKSAR officials and Hong Kong businessmen looked to the burgeoning information technology (IT) sector in the United States as a potential salvation for Hong Kong’s economic woes. (In fact Japan’s current and potential economic recovery may fueled by the increasing wealth generated by Japanese Internet companies.) Unlike the critical Internet mass in the U.S., though, Hong Kong had a dearth of qualified workers to create an IT sector capable of competing with the United States and the Asian region.

Therefore the HKSAR turned to previous policies, wishing to practice a selective immigration policy for Mainlanders with computer training.  The HKSAR also government set aside government to create a special IT zone, teaming up with entrepreneur Richard Li, son of one of the richest Hong Kongers Li Ka-shing, to create the so-called Cyber-Port industrial park at a cost of US$ 60 million. Through his Pacific Century CyberWorks, Richard Li has more than US$30 billion in working capital that he says will create a broadband cable Internet network in Asia. PCCW has recently bought Hong Kong Telecom (a long-time state monopoly) and has investors in the territory exited, but the company remains untested and has actually accomplished very little.[3]  But in terms of human capital, the territory must look to Mainland China for the best and brightest computer-science experts. A selective immigration policy is needed because (as section 2 discussed) the Mainland has a great excess of low-skilled cheap labor of approximately 500 million people. In the past it was important that while Hong Kong’s commercial and financial sectors were growing, the low-skilled jobs that generated the initial wealth for more sophisticated industries to emerge had been filled by more Mainland immigrants. However, since 1978, these jobs have been quietly going across the boarder into southern Guangdong Province, and have been disappearing from Hong Kong. Previously fertile farmlands of the Pearl River delta in Guangdong have been converted into scores of massive factories. In fact along with Shanghai and Beijing, the Shenzhen SEZ and the surrounding Guangdong province have become the magnets that attract many of China’s hinterland population looking for work.

Therefore, in the eyes of many Mainland Chinese, Hong Kong’s average US $22,000 per capita income is the reason that so many want to go to Hong Kong. However, out of self-preservation, the HKSAR is not willing to accommodate these immigrants, and Beijing is not willing to spoil Hong Kong’s prosperity by flooding it with millions of under skilled Chinese workers. Therefore, these two factors, and a desire to commit Hong Kong to an IT industrial growth plan, were at work when Hong Kong’s highest judicial authority was overturned by Beijing in June 1998.

The Right of Abode controversy (ROA) arose when a group of would-be immigrants from Mainland China were selected for deportation by Hong Kong’s Immigration Department as part of a 1980 agreement between Hong Kong and China that provisioned 150 mandatory deportations a year. The petitioners sued Hong Kong’s Immigration Department for the right to stay in the territory. The petitioners claimed they had Hong Kongers parents (Hong Kong fathers and Mainland mothers), and despite having been born in the Mainland, actually qualified for residence in Hong Kong under the provisions of the Basic Law. The case worked its way through Hong Kong’s court system for two years and finally arrived in the Court of Final Appeal (CFA) in late-1998. The court ruled in favor of the immigrants, saying these petitioners—numbering 80 initially—could indeed stay in Hong Kong. The HKSAR could not accept that ruling, because leaders though it might send the signal for Mainlanders to seek resident status in Hong Kong. Therefore, led by Beijing-appointed Chief Executive, Tung Chee-hwa, the HKSAR filed a petition with authorities in Beijing to “review” the case.

Therefore, when the CFA’s initial ruling was issued in January 1999, public sentiment in Hong Kong was already against the would-be immigrants. Public opinion had already been played upon by the HKSAR through a very public campaign that played on class-based stereotypes. While the HKSAR did not explicitly state it as such, it was argued that because Mainlanders had lived in a Communist country devoid of sophistication and of a work ethic, they were crude, rude, lazy, slow, and stupid. The HKSAR did argue that these immigrants would drain the territory of finances.  Each immigrant would be eligible for $5000 HK (US$645) in welfare per month. Moreover, this view held that the HKSAR would have to bankroll more than $710 billion HK (US$90b) to build 242 new schools, 11 hospitals, and 384,000 public housing units. In addition to that, the HKSAR said it also had to pave new roads and expand rail networks to accommodate the potential influx of Mainlanders costing billions more.[4]

Moreover, it was the HKSAR who first said that a ruling in favor of the petitioners would mean 1.67 million people would be eligible to petition (and most likely get) resident status. The reversal of the CFA ruling has in fact trimmed those eligible down to just more than 200,000 people. By turning public sentiment to its favor, the HKSAR proved that political campaigns could be used to its advantage. The effectiveness of the campaign does not prove the prowess of the SAR though. Rather, the effectiveness of campaign played upon previous anti-immigrant and anti-China sentiment. The HKSAR was aware that Beijing would rule in its favor. Therefore, the ruling by the NPC reflects a deep-seated anxiety the Chinese officials feel towards upsetting Hong Kong’s future prosperity with mass immigration. 

The irony of the whole affair is that these would-be immigrants are, in fact, identical to established Hong Kongers in race, language, and culture. I have argued that immigrant labor and energies made Hong Kong into the success it is today (see Section 1).  In fact, according the statistics gathered by the Chinese University of Hong Kong, Mainland immigrant children perform identically or even better than children born to Hong Kong residents. Their survey showed that children from the Mainland or of Mainland parents did an average of 23 percent better at mathematics and 12 percent better in Chinese language subjects than their “native” Hong Kong-born counterparts. [5] The motivations for immigrants to come to Hong Kong revolve around improving their own lives and providing better opportunities for their children. Coming to Hong Kong means a better education, better jobs and wages, and a government administration that is trustworthy and “clean.”

While HKSAR policy seems harsh and unfair, the economic reality is clear. In 1995 the unemployment rate at the low-service sector (i.e. construction, manufacturing, menial labor) was 4 percent, up from the usual 2 percent. The International Monetary Fund attributed to this rise to low-end jobs going across the border to Shenzhen and to the Guangdong province.[6] In fact, the IMF has noted this change over the past 20 years. In 1980, manufacturing made up more than 25 percent of GDP, but by the mid-’90s manufacturing composed only 10 percent of the GDP. Employment numbers also back that trend as more than half of Hong Kong’s workers were in manufacturing in the late-70s to only 15 percent (and falling) today. Last, the trade and finance only employed 33 percent of Hong Kongers in the late-70s but now employ well over 60 percent o the population[7]. The trend towards Hong Kong financing Mainland factories and shedding low-end jobs only added to the sentiment the HKSAR fanned during the ROA controversy. The commitment to expelling low-skilled Mainlanders and the push for luring Mainlanders with IT training is evidence of a local government trying to choose its new residents. Oftentimes, these policies overlook social concerns as reduced jobs in low-skill sectors have led to increased stress in immigrant families. Critics of the HKSAR’s policies cite the increase of battered women entering local shelters and note that 60 percent of the women who do seek refuge in shelters such as the Harmony House in Kowloon are recent immigrants from the Mainland.[8]

With these two elements in mind—a desire to practice selective immigration policy to pursue IT sector growth and a local government that actively campaigned against immigration—only one more factor needs to be addressed in deciphering the ROA controversy, and that is the role the Basic Law plays. The following is an excerpt from the Preamble from the Basic Law that illustrates its supposed intent:

 “Upholding national unity and territorial integrity, maintaining the prosperity and stability of Hong Kong, and taking account of its history and realities, the People’s Republic of China has decided that upon China’s resumption of the exercise of sovereignty over Hong Kong, a Hong Kong Special Administrative Region will be established in accordance with the provisions of Article 31 of the Constitution of the People’s Republic of China, and that under the principle of "one country, two systems", the socialist system and policies will not be practised in Hong Kong. The basic policies of the People’s Republic of China regarding Hong Kong have been elaborated by the Chinese Government in the Sino-British Joint Declaration.”

The document puts into writing the notions of “one country, two systems” and a high degree of autonomy for the people of Hong Kong by reaffirming the doctrine of “Hong Kong people ruling Hong Kong.” The document has 160 articles and three additional annexes, which prescribe how the Chief Executive is selected, how the Legislative Council is elected and appointed, and which Chinese national laws are applicable to the HKSAR. The Basic Law was drafted by a committee of Chinese officials and prominent business leaders from Hong Kong starting in 1985. The first draft of the proposed mini-constitution was released in 1988, and after five months of public input, the document was revised two more times and formally adopted by the National People’s Congress in Beijing (NPC) in April 1990. The document offers a high degree of autonomy to the territory (see Basic Law, articles 2-5, 13-14), it protects Hong Kong from the Mainland’s socialist system (BL art. 5) and calls for an independent judiciary and the right of that judiciary of final adjudication (BL art. 2 & 85). In theory, the Basic Law leaves most affairs up to the HKSAR except for matters of defense, foreign affairs, and any other issues that might need to involve the NPC

          Therefore, when the chief executive Tung Chee-hwa asked the National People’s Congress to review the Hong Kong Court of Final Appeal’s decision, both sides immediately cited Article 158 of the Basic Law to either confirm or refute the legality of Tung’s decision to involve the NPC.

Article 158

          The power of interpretation of this [Basic] Law shall be vested in the Standing Committee of the National People’s Congress.

          The Standing Committee of the National People’s Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region.

          The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People’s Congress through the Court of Final Appeal of the Region. When the Standing Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee. However, judgments previously rendered shall not be affected.

          The Standing Committee of the National People’s Congress shall consult its Committee for the Basic Law of the Hong Kong Special Administrative Region before giving an interpretation of this Law.[9]

Both sides of the ROA controversy (the HKSAR, NPC, and business conservatives on one side, the Hong Kong Bar Association, the Judiciary and the Media on the other) refer to Article 158 in the Basic Law to bolster their respective cases. Indeed, the wording is ambiguous. Therefore, when the Court of Final appeal issued its initial ruling on the case (without feeling the necessity to consult Beijing) on January 29, 1999, it was supposed to be the last word in the case as far as the CFA was concerned. What follows is an excerpt from the ruling.

The right of abode

It is natural that Article 24 is the first article in that chapter of our constitution, the Basic Law, which contains our fundamental rights and duties. For it is the article which says who has the right of abode in Hong Kong. And the right of abode in a place is the fundamental right without which the full array of fundamental rights available in that place cannot be accessed. This is because the right of abode in a place is the right, in the eyes of its law, to call that place home: coming and going at will; staying as long as you like.

Conferred on permanent residents

In Hong Kong this key right is conferred on permanent residents. Throughout the world constitutions extend their overarching protection to all persons within the jurisdiction, but reserve the fullest measure of rights to citizens. Our constitution follows this global pattern: doing so by reference to permanent residents rather than citizens. Article 24 lays down six categories of permanent residents. And it confers on all of them, whichever category they come within, the right of abode here along with all the other rights enjoyable here (subject only to the Chinese citizenship qualification necessary for certain official posts).

                The six categories of persons who constitute the permanent residents of Hong Kong are defined by the second paragraph of Article 24 as:

"(1) Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;

(2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;

(3) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);

(4) Persons not of Chinese nationality who have entered Hong Kong with valid travel documents have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region;

(5) Persons under 21 years of age born in Hong Kong of those residents listed in category (4) before or after the establishment of the Hong Kong Special Administrative Region; and

(6) Persons other than those residents listed in categories (1) to (5), who, before the establishment of the Hong Kong Special Administrative Region, had the right of abode in Hong Kong only."

The judges go on to conclude that these applicants do, in fact, qualify for resident status.

The crucial facts

Looked at in the context of categories (2) and (3) of Article 24, the following crucial facts common to all of these 81 appellants are to be noted:

 (1) All of them are of Chinese nationality.

(2) They were all born outside Hong Kong  (namely in the Mainland).

(3) Each of them has a father who is a Hong Kong permanent resident by virtue of category  (2) i.e. through being a Chinese citizen and having been ordinarily resident in Hong Kong for a continuous period of not less than seven years. (It may be mentioned in passing, although it cannot affect the result of this case one way or the other, that the mothers of 25 of these appellants also happen to be Hong Kong permanent residents by virtue of category (2).)

(4) No parent of any appellant had become a Hong Kong permanent resident until after that appellant's birth: because no such parent had been ordinarily resident in Hong Kong for a continuous period of seven years until after his or her appellant child's birth.

The opinion’s author, Judge Kemal Bokhary, interpreted the Basic Law to mean that all of these applicants were eligible to remain in Hong Kong.

Simply as a matter of giving words their natural meaning, I am of the view that the construction for which the appellants contend is correct.

Let me explain why I am of that view. Take any parent and birth child. Asked if the child is a person born of the parent, one is bound to answer "yes". Now take the same parent and child, adding the fact that the parent is a Hong Kong permanent resident. Asked if the child is a person born of a Hong Kong permanent resident, one would surely still answer "yes". One would not pause to enquire when the parent became a Hong Kong permanent resident. As a matter of ordinary language, that is irrelevant to the question of whether the child is a person born of a Hong Kong permanent resident.[10]

The judgment goes on the explore the legal precedents the five used to arrive at their ruling, and it concludes by saying that these 80 applicants—a number that grew to more than 4,000—could apply to be become permanent residents in Hong Kong with all the rights and privileges afforded with that status. HKSAR Chief Executive Tung Chee-hwa did not see matters this way and, citing Article 158, appealed directly to the Standing Committee of the National People’s Congress to make his case. However, it must be noted that the judicial branch did not ask for interpretory help in its original ruling. The question becomes whether it was legal for the executive branch to ask the NPC for a reinterpretation. That question has yet to be resolved in Hong Kong, but it appears that it is legal for the executive branch to do so.

The NPC did, in fact, note that the CFA had not sought consultation from the NPC in the ROA case and that it was Chief Executive Tung Chee-hwa who sought the review. The NPC stated that it could intervene because the CFA’s ruling was not “consistent with the legislative intent” of the Basic Law. Below is an excerpt of its ruling.

It is unlawful for people from all provinces, autonomous regions, or municipalities directly under the Central Government, including persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, to enter the Hong Kong Special administrative Region without complying with the appropriate approval procedure prescribed by the relevant national laws and administrative regulations….

As from the promulgation of this Interpretation, the courts of the Hong Kong Special Administrative Region, when referring to the relevant provisions of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, shall adhere to this Interpretation. (emphasis added)

The implications of the last passage remain unclear. Some parties, such as the Hong Kong Bar Association, argue that this re-interpretation should only be confined to this case, while others within HKSAR say it is the start of a larger movement for greater and greater involvement by Beijing. Indications show that some portions of HKSAR officialdom want a greater role for Beijing in local affairs. Hong Kong Immigration Department Director Geoffrey Ma went so far as to say the NPC does not even need a pretense such as a court case to step in and interpret the Basic Law and said that he supports such initiative.[11] Naturally, then, when the CFA had to declare valid the NPC’s June 1999 Interpretation of the case, pro-democracy elements such as the Democratic Party (DP) became extremely pessimistic. Activist and DP leader Martin Lee aired his disappointment but said CFA’s revised decision was not unexpected, as the NPC had already interpreted two articles in question in the exact opposite of the CFA. In an interview with the BBC Lee had this to say, “It’s a bad thing for the rule of law, because the (Hong Kong) government’s argument was that anybody can simply go to Beijing and invite the Standing Committee to interpret any article of the Basic Law, and he can invite Beijing to do that. Beijing can do this before, during, and after the case is over. It is pretty bad. I’m afraid now that the rule of law (in Hong Kong) will have Chinese characteristics.”[12]

The rest of the HKSAR took a more restrained view than Lee or Ma. Hong Kong Secretary for Justice Elise Leung said the HKSAR would not ask for NPC interpretations lightly in the future but stood by the HKSAR’s decision to request a review of the ROA case in the first place. Other officials such as acting Solicitor-General Bob Allcock conceded that the Hong Kong Department of Justice had been considering possible limitations on government requests to Beijing but knew that there was very little the HKSAR could do to limit the Standing Committee’s power. A member of the NPC Standing Committee, Albert Chen, did reassure Hong Kong solicitors that the case was not a precedent for future arbitrary interventions by the NPC and said the whole controversy had misconstrued the original intent of the Basic Law. 

Regardless, local constitutional experts and legal associations outside of Hong Kong have accused Chinese authorities of undermining the Basic Law and ignoring the “one country, two systems” framework to implement their own will. On these counts, they are right. Beijing has indeed changed the rules of the game when it comes to law in Hong Kong, and authorities in Beijing have exploited ambiguous language in the document to their own advantage by not giving the CFA the benefit of the doubt. Martin Lee’s assessment that the reversal of the CFA was a bad thing still hangs over authorities in Hong Kong and in Beijing and represents the parameters of the current debate in Hong Kong. However, whether this sidestepping of the Basic Law will be substantially harmful to Hong Kong or not is another question. Many have assumed the case, but their predictions of doom and gloom have not come true but are rooted in the very Western assumption between the relationship between democratic institutions and sustained economic growth.

3.2 Implications and Remaining Questions.

The Basic Law’s “one country, two systems,” framework has been the shorthand of understanding and interpretation for recent events in Hong Kong that some say have gone to “harm” the cause of civil liberties there. However, if we look at these events in terms of political maneuvering, then it becomes clear that the answers offered by the “one county, two systems” framework to these events are inadequate opposed to answers offered by a more pragmatic approach that is not as value-laden as the “one country, two systems,” framework. Combined with the reversal of Hong Kong’s highest court, the Court of Final Appeal, by the Standing Committee of the National People’s Congress, two high-profiling firings also can be explained by politicking. The first is the dismissal of one of Hong Kong’s leading editors at its leading English-language newspaper, the South China Morning Post, in July 1999. Secondly, the re-assignment of the outspoken chief of Hong Kong’s broadcast service, Radio Television Hong Kong, to Japan in October 1999 also can be explained using this approach. 

This paper has made it clear that over time, businesspeople in Hong Kong adapted a more pro-Beijing stance by joining various handover committees and by assisting pro-Beijing local political groups. However, there are deeper institutional methods that these pro-Beijing business elements used as well to profess their allegiance to Beijing: control over Hong Kong’s media sector. Hong Kong has the highest circulation rate in the world in terms of print newspapers, but large companies control these papers. Granted, each newspaper’s editorial stance varies considerably and reflects a broad political spectrum. However, one of the most public displays of this pro-Beijing leaning came with the case of Jonathan Fenby. In Hong Kong, there are two prominent local-English-language publications, the especially progressive South China Morning Post and the lesser Hong Kong Standard. A wealthy businessman who has considerable trading interests in China owns the Post. Therefore, when the Post’s editor, Jonathan Fenby, became publicly critical of the HKSAR and China for their handling of the ROA in his editorials, Fenby lost his job. Fenby was neither subtle nor muted in his criticisms in his editorials as he accused the HKSAR of a “fundamental and dangerous shift” away from judicial independence.

….What matters is that the court [CFA] meant to be our supreme judicial organ is now subject to appeal to a mainland political body.

It is hard to see how this can be anything less than a major change in the system we were would be maintained until 2047. If this is the case, the judgment on Friday is, itself, actually against the Basic Law.

Imagine the outcry from Beijing if Chris Patten had gone to the House of Commons to over-rule a Privy Council verdict against him. That would not happened under the pre-handover system, so its equivalent should not happen now if the Basic Law is to be respected. The Government has driven a cart and horses through a fundamental element in the system it should be preserving for the good of Hong Kong. We are told reassuringly that referrals to Beijing will be highly exceptional. But one can only note that the list of criteria for references to the NPC promised by senior officials in the summer has not materialised and it is hard to forget the assertion by a senior legal officer that reference can be made before, during or after a case.

This leaves Hong Kong in a state of maximum uncertainty, subject to arbitrary decisions by the Government and with final adjudication no longer, in effect, in the hands of a Hong Kong court, but subject to a political body in Beijing.[13]

After similar editorials, Fenby warranted a visit from the HKSAR’s second-ranking official, Anson Chan. Chan reportedly lectured Fenby on how the Post was neglecting its “responsibility” to the people of Hong Kong by taking a critical stance of the HKSAR and Beijing.[14] It is most likely that Chan’s visit was directed by officials in Beijing who alleged that the ROA controversy was being fanned by “certain” newspapers in Hong Kong. While visits from government officials were an annoyance, the paper’s boss, a prominent businessman with significant dealings with China, fired (via telephone) Fenby at the end of July 1999. While the reasons were not made clear to Fenby nor to anyone else, conventional wisdom puts that it was his critical editorials and his decisions that allowed the Post’s writers to be critical of Beijing. During the controversy, the Post was, in fact, the only major newspaper in Hong Kong (even among the Chinese-language papers) critical of the National People’s Congress’ reversal of the Court of Final Appeal.

With the Fenby firing fresh on people’s minds, another prominent personnel change at Radio Television Hong Kong (RTHK) also raised concerns in Hong Kong. While government-owned and operated, RTHK (like its British counterpart the BBC) was allowed not only to report on its owner, but also to criticize it and serves as the territory’s main broadcast service. Before and after 1997, RTHK was among the harshest of the local government’s critics, both under British and Chinese administration. In summer, 1999, its director, Ms. Cheung Man-yee, made many political enemies by allowing a high-level Taiwanese official ‘equal time’ in presenting former Taiwanese President Lee Tung-hui’s case for a state-to-state status with China on local television; an extremely volatile subject with the Chinese regime. Weeks after the broadcast and while she was on vacationing, it was announced that Cheung was to be “promoted” and reassigned to Japan as an economic and trade representative for Hong Kong. Critics accused the HKSAR of being willing to remove any ‘offensive’ critics of Beijing. HKSAR officials countered and vehemently denied any political motivations for the shift and said criticism of the decision, according to Anson Chan, was an “insult” to the HKSAR [15] Regardless, unlike Fenby’s departure from the Post, RTHK employees said her reassignment came as a surprise and that they were worried about their own positions within the organization. Pro-democracy advocates, led by Martin Lee, said this action spelled “the end of free-society” in Hong Kong. Indeed, RTHK has faced criticism from Beijing, one NPC member even calling for a mothballing of this “colonial remnant.” Perhaps even more telling of a the new atmosphere, sources in Hong Kong have indicated that the HKSAR is considering the formation of a watchdog group to monitor press coverage in Hong Kong. Officials state that the group would be created only to reduce Chinese-language newspapers from violating privacy rights of those in the media spotlight and from promoting sensationalism.[16]

These two incidents confirm the gradual gravitation on the part of media leaders and policymakers towards Beijing that many have observed over past few years. In fact, two China scholars noted this shift in 1991. Chan and Lee (1991) observed that the New China News Agency (Xinhua) was using its Hong Kong office as a staging point for the co-optation of Hong Kong’s leading newspapers by using traditional Chinese concepts as gaunxi and privileged access to Chinese sources and stories to enlist the editorial support in Hong Kong for Beijing.

Xinhua tries to incorporate the [Hong Kong] press into the changing political order with offers of benefits, resources and status. In turn, the press organization makes institutional policy—ranging from investment strategies to the internal routing of news work—to adapt itself to, and maximize its position in, a rapidly changing socio-economic context.[17]

The two argued that Hong Kong’s press had to be brought aboard if Beijing was to have any success in winning Hong Kongers over to its rule. Their campaign to co-opt, Chan and Lee note, was mostly successful with the notable exception of Hong Kong’s papers being united in denunciation of the Chinese leadership in the wake of the of the Tiananmen Square massacre.[18]

Therefore, in sum Chinese regime has practiced grab bag of policies concerning Hong Kong. It ranges from ignoring Hong Kong by not actively promoting its free society and independent rule of law, to also being heavy-handed with the NPC intervening in the Right of Abode Case. Very much like the “both hands aggressive” policy model for China of Deng Xiaoping, Hong Kong has seen the bi-polar nature of Chinese policymaking in contrast to the relatively uniform standard of British administration. Therefore, the conflict between a relations-based system and a rules-based system has become more and more apparent in Hong Kong since signing of the Joint Declaration in 1984. Haggard best summarizes these concerns in his analysis of the drafting process of the Basic Law.

… the joint Hong Kong-Chinese group [was] given responsibility for drafting the “constitution” that will govern Hong Kong after 1997. The Chinese notion of accountability differed, not surprisingly, from liberal democratic norms but found strong support among the conservative businessmen who made up the bulk of the Hong Kong delegation to the committee. The Chinese opposed a system of explicit checks and balances and the formation of political parties…. When the first draft of the Basic Law was circulated, it resembled the colonial system.[19]

That colonial system Haggard speaks had become somewhat of an anachronism by 1997, but was at the heart of the Basic Law drafting process. In 1990, fierce debate forced the elimination of clauses that were deemed to be giving too much power away to Beijing. Proposed Article 169, for example, would have allowed the NPC to legislate and intervene in Hong Kong’s affairs without any pretense. However, since the ROA controversy many question if an Article 169 is really a de facto article.

Many fret about Hong Kong’s market position vis a vis regional competitors such as Shanghai and Singapore. These critics point out that in China a separation between governance, industry, banking and the Party is emerging. In Hong Kong, however, they see a convergence of these interests and argue that it is not necessarily a good thing. Several questions remain unresolved though. First and foremost is this connection between democracy and economic growth, especially within the Asian context. Is the connection between affluence and democracy a viable one? Also, the role of increasingly sophisticated technology plays in the Hong Kong-Ching equation must be considered as well. The question of the British legacy and motivations remain. While many will agree that British rule was more democratic near the end of their tenure, earlier periods do not reflect this case. The British were, after all, running an empire built on trade and self-interested policies, whether or not these attitudes played into the Sino-British Joint Declaration of 1984 is something worthy of further exploration. Specifically, questions of how the community of interests formed between Beijing and Hong Kong business elites also remain. The question still remains of whether or not business was willing to cooperate with Beijing or whether they were being coerced about it, or being pragmatic about it, the case still remains unresolved as the literature conflicts with itself as well. Also, an exact chronology of events and opinions has not been adequately addressed, and several of these questions of influence and policy orientations might be resolved when such information is available and explored in greater detail. Therefore, without passing a judgment on the events and system, we have seen that if conclusions are to be drawn within a legalist interpretation (using the Basic Law as a guide) then the natural conclusion is that Hong Kong has been suffering under Chinese rule. The reality, though, speaks contrary to this conclusion and, as I have argued can be better thought of in practical terms. 

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