Hong Kong avoids Shanghai's fate

As it celebrates the second anniversary of its return to the motherland, the Special Administrative Region of Hong Kong is both worrying about its future autonomy and also welcoming a decision by China to overrule its highest court. The Jakarta Post's Harvey Stockwin explains the apparent paradox.

HONG KONG (JP): Right from the start, the current legal and political case concerning "right of abode" in Hong Kong has been a journalist's nightmare. Highly complex and profoundly nuanced, and containing contradictory strands, the case was impervious to easy simplification. Both sides to the dispute could legitimately claim to be concerned with Hong Kong's survival. The case pitted Beijing's enduring pursuit, since ancient times, of central control rather than autonomy, against Hong Kong's vital need for local autonomy rather than control.

Beneath the surface, the issue also set China's pragmatic need to preserve Hong Kong's prosperity against China's deep-seated yearning to develop One China. Above all, the dispute raises the issue -- it still does -- whether the impersonal rule of law can ever fully flourish amidst China's enduring addiction to more arbitrary rule by men. No one article can possibly deal adequately with all these, and several other themes.

Immediately, China has "solved" Hong Kong's future population problem, but only at the very high price of raising grave doubts about its ability to grant Hong Kong the "high degree of autonomy" which Beijing earlier pledged in return for the colony's return to the motherland.

Two years ago, as the most important symbol of that pledge, a Court of Final Appeal (CFA) was set up under which Hong Kong was to have the ability to finally adjudicate most of its legal cases. Previously, under British sovereignty, the court of final appeal for Hong Kong had, of course, been the Privy Council in London.

Under the terms of the agreement in which Britain agreed to Hong Kong's retrocession to China, Hong Kong was to retain its common law system inherited from the British, as distinct from the essentially political and centrally directed system in China itself.

Six months ago, on Jan. 29, symbolizing that high degree of autonomy, the CFA produced a lengthy and controversial decision in a case arising from various groups of mainland Chinese seeking the right of abode in Hong Kong by virtue of being children of qualified Hong Kong residents. Essentially, the decision rejected the government's case that such immigration should continue to be restricted, as it had been under British rule. Additionally, as part of that ruling, the CFA laid out the conditions under which it could adjudicate cases without prior reference to the Standing Committee of China's National People's Congress (NPCSC).

Under Hong Kong's post-colonial mini-constitution, the Basic Law, the NPCSC was designated the final arbiter on constitutional and legal issues arising between Hong Kong and China.

On June 26, symbolizing that China's political and legal system, as always, stresses control rather than autonomy, the NPCSC overruled that Jan. 29 CFA judgment. As expected, the NPCSC maintained that the CFA had misinterpreted the intent of the Basic Law. But, in an unexpected move, the NPCSC also said the Hong Kong court had violated the Basic Law by not referring the case to the NPC in the first place, before making its own judgment.

Critics immediately saw Hong Kong's legal autonomy as being gravely weakened, if not in tatters. And yet the Hong Kong Special Administrative Region (HKSAR) government, led by Chief Executive Tung Chee-hwa, which had never defended the original CFA ruling, enthusiastically endorsed the NPCSC decision. Further, while lawyers, democratic politicians and editorialists have heavily criticized the NPCSC decision, a majority of Hong Kong residents clearly approve of it, if public opinion polls are any guide.

The HKSAR government actually requested this NPCSC reinterpretation, and public opinion will probably endorse the seeming loss of judicial independence for one very basic reason: the over-turning of the CFA judgment makes it much less likely that Hong Kong will go the same way as post-revolution Shanghai.

Before 1949, Shanghai was a far more developed and dynamic city than Hong Kong. Shanghai slid back and fell behind Hong Kong, partly as a result of communist ideological folly and factional strife -- but also as it was inundated by waves of mainland immigrants.

The CFA January judgment, based upon impeccable human rights considerations, would have greatly increased the number of mainlanders entitled to come to Hong Kong, thereby raising fears that Hong Kong might be flooded with new arrivals, just like Shanghai once was. The Hong Kong government, worried over practical considerations, almost certainly exaggerated the likely massive and socially damaging inflow. It claimed that an additional 1.67 million mainlanders would now be allowed to enter Hong Kong under the CFA judgment. This would be in addition to the normal 150 immigrants from China allowed into Hong Kong every day (54,600 per year).

Under the June 26 NPCSC re-interpretation, it is anticipated that there will still be between 170,000 and 200,000 additional arrivals in the next few years.

At least China has demonstrated that it is willing to curtail the movement of people within its own borders, so as to preserve Hong Kong's prosperity. The CFA ruling, on the other hand, stressed that families should be united. The fact that Beijing has taken a stand against a freer flow of Chinese to China's Hong Kong is potentially unpopular within China, at a time when the regime is otherwise stressing nationalism.

But Hong Kong's population problem, as exposed by the right of abode cases, inadvertently gave China the opportunity to reduce a key aspect of Hong Kong's freedom and autonomy, without offending either the Hong Kong government or the majority of Hong Kong people.

Beijing has taken full advantage of this chance to limit Hong Kong's legal autonomy. While the former Chinese leader, the late Deng Xiaoping promised "one country, two systems" for Hong Kong, in the eyes of the present Chinese communist leadership, one country and its system obviously take precedence.

With equisitely bad timing, at the very moment when anxieties over future autonomy had been exacerbated by the NPCSC ruling, one leading Chinese official chose to emphasize control. On June 27 NPC Legislative Affairs Commission vice-chairman Qiao Xiaoyang expressed the hope "various sectors in the SAR will strengthen the concept of 'one country' in the 'one country, two systems' policy after (this) incident".

This statement, coupled with HKSAR Secretary of Justice Elsie Leung insisting that Hong Kong "must accept that there is a new constitutional order" expose the fragile foundations on which its autonomy now rests.