When Also upon reading the Basic Law
When one look’s at Hong Kong there are many of questions that come to mind. How is China going to respond to citizens of Hong Kong holding protests? Will Hong Kong’s citizens be taken back by their lose of rights? Or will this more liberal form of government led the rest of China into a more democratic state? Instead of focusing on the unknown I saw this paper as an opportunity to study Hong Kong new form of government.
This paper will briefly look at Hong Kong from a historical prospective. It will explain how Hong Kong became a colony of Britain. It will briefly discuss the Hong Kong handover and possible implications. The paper will compare the governments of Hong Kong under the British and the new Special Administrative Region for China. The paper will also draw comparisons between the Basic Law, which will guide the Special Administrative Region, and the Constitution of the United States of America. I choose to compare the Basic law to these two governments, thinking that most people didn’t realize how similar the new and old system in Hong Kong really were. Also upon reading the Basic Law I was struck by the similarities with our own constitution.
It is when you read further into the Basic law that you discover how different the system of governments in the United States of America and the Special Administrative Region of Hong Kong are. I also plan to give perspectives of people living in Hong Kong a year after the handover. It is my desire that you take from this paper a new level of insight into the situation in Hong Kong and what it may mean to China. Hong Kong is located at the Mouth of the Pearl River. It is 90 miles south of the trading city of Canton.
Hong Kong can be divided into three parts; Hong Kong Island, Kowloon and Stonecutters Island, and the area referred to as the New Territories. The New Territories adds 355 square miles to the Hong Kong region, it consists of the mainland area and a large number of coastal islands. In the 19th century, China had a closed society, they controlled many aspects of trade with western societies. In Europe Chinese goods, like tea, silk and fine china, were in demand.
Unfortunately for Britain they didn’t produce anything that Chinese citizens wanted to trade for, creating a trade imbalance. The East India Company found a commodity that the Chinese citizens wanted. They began importing opium from India. Beginning to realize they had a problem the Chinese government issued the Imperial Order of 1836 to suppress the opium trade. In 1839, attempts made by the Imperial Commissioner Lin to destroy opium activities led to a military conflict between China and Britain who wanted to protect the interests of their merchants in the region. The conflict came to be known as the Opium Wars.
Britain easily dispatched the Chinese resistance and opened up China for even more trade with the western societies. One of Britain’s gains from the Opium War was that Hong Kong was ceded over to them. In 1860 the Chinese government also ceded Kowloon and Stonecutters Island to Britain.
Britain establish a colony in 1843, it capital was Victoria. In 1898, Britain leased the rest of present day Hong Kong from China, otherwise known as the New Territories. The New Territories were leased for 99 years. The city of Victoria was located on Hong Kong Island, but due to vast urbanization on the island it is impossible to make out any distinct city in the area where the city used to be located.
In the nineteen eighties, when Hong Kong was thriving as a free market economy, members of the British and Chinese governments began to become concerned about what might happen when the lease expired on July 1, 1997. Would China come marching in overrunning the city? Or would Britain refuse to relinquish control? It was in this environment of uncertainty that these two governments began working together on Hong Kong’s future. On September 26, 1984 a draft was agreed upon. The Prime Ministers of both countries signed the actual agreement, the Joint Declaration, on December 19, 1984. The Joint Declaration was registered with the United Nations on June 12, 1985.
In the Joint Declaration, the United Kingdoms pledge to restore Hong Kong to China on July 1, 1997. The People’s Republic Of China announces it will set up the Special Administrative Region of Hong Kong and put in place the concept of “One Country, Two Systems” to govern Hong Kong after the handover. The Joint Declaration also guarantees that the National People’s Congress will pass a constitution called “The Basic Law”. It will provide a framework for the new Hong Kong government. Finally China pledges that the Basic Law and the new Hong Kong system will remain in place for fifty years. There were critics of the Joint Declaration who thought that it was incomplete. Mark Roberti, author of The Fall of Hong Kong, said, “The two sides could not agree on a system of government that would enable Hong Kong to prosper.
It was as if two companies decided to start a joint venture and agreed on where it would be based and what it would produce, but could not agree on who would run the enterprise and how.” (Roberti, 305) Roberti felt this was the critical flaw of the Joint Declaration. He believed that Britain should have held out until there was more concrete answers.Under the One Country, Two Systems approach the basic way of life should be unchanged over the next fifty years, however China will represent Hong Kong in matters of defense and foreign affairs, as Britain had previously done. In the One Country, Two Systems approach Hong Kong will remain capitalist.
Hong Kong will have an elected Legislature and the residents will retain some of their civil liberties. It was in an uneasy atmosphere that the British flag was lowered for the last time in Hong Kong and a new day for China had begun. “The world hasn’t realized that nothing has changed,” says Owen Chi, Assistant Executive director of Hong Kong Trade Development Council. “There are no soldiers on the streets,” he insist that laws and business climate remain the same. Chi stated that the greatest difference was that for the first time the people of Hong Kong govern themselves. He was referring to the May 1998 election of the Legislative assembly, the first assembly elected while under the rule of the People’s Republic of China.
(Dutton) While Chi remarks are accurate they don’t paint the whole picture. First, even though the people of Hong Kong were able to elect their own Legislative Assembly, they do not have the ability to govern themselves. They have no part in the process of selecting the Chief Executive of Hong Kong, and that where is the true power of Hong Kong’s government lies. The Chief Executive is not accountable to the citizens of Hong Kong, heanswers only to China. Second, the way the laws are interpreted has changed. To properly compare present day Hong Kong’s and British colonial Hong Kong’s governments we must begin with the head of each government.
When Hong Kong was a colony of Britain the Head of the government was the Governor. Now with the Basic Law the Head of State is the Chief Executive. The Prime Minister of England selected the Governor of Hong Kong. The Governor was accountable to the English Parliament and responsible for ensuring that Britain’s welfare was looked after.
The Chief Executive in present day Hong Kong is not so much different, he is selected by the Central’s People’s Government. He is responsible for ensuring China’s welfare is looked after in Hong Kong and is accountable only to the Chinese government.The Governor was given considerable power pertaining to what went on in the colony. He appointed all council positions, for both the Executive Council and the Legislative Council. These councils were designed to give the governor advice that he could follow, or overrule depending on his own opinion. Any legislation that the colony passed could overturned by the Parliament. In the Present day Hong Kong, the Chief Executive also has great decision making powers.
The Chief Executive is the head of the government. He is responsible for the implementation of law, he decides which bills, that the Legislative Council passed, to sign and make into laws and which to send back. He, like the British governor, can issue executive orders and set government policy for all of Hong Kong. The Chief Executive also appoints the judges and public offices holders. He also has the power to remove the judges and public office holders from their positions.
In both governments there are an Executive Council and a Legislative Council. In colonial times neither council had much more authority than the governor granted them. In the Present day Hong Kong the Executive Council is still only an advisory board, but Legislative Council has a more expanded role. The Legislative Council is made up of elected Hong Kong citizens who are permanent residents of Hong Kong. The Council is made up of Chinese nationals but can have up to 20% foreign born permanent residents.
It is the Legislative Council’s job to enact, amend and repeal laws. The council also has what the American government refers to as the power of the purse. The Council has to approve all budgets and taxes for Hong Kong. It is also the duty of the Legislative Council to debate questions that concern the residents of Hong Kong.The judiciary branch of Hong Kong is rooted in English law. When Hong Kong was a colony every citizen had equal access to the courts.
Even though the courts had an English background Chinese customs were permitted, providing they were not repugnant to the English. Present day Hong Kong will keep the same system of dispensing judgment for the present. They are maintaining the practice of trial by jury. The Basic law also states that “Anyone who is lawfully arrested shall have the right to a fair trial without delay and shall be presumed innocent until convicted. In these ways the governments are very similar, the difference are more evident in their philosophies.
In colonial Hong Kong the role of government was to ensure stability, to make trade with China as easy as possible, Therefore the colonial government granted its citizens the same rights citizens other parts of the British Empire would expect. On the other hand, China is more concerned with their future. Because the future is unknown to all of us they are taking a cautious approach to Hong Kong. They are not sure of what damage it might do to their nation, or what benefits might come from it.
They are less concerned with the stability of Hong Kong than they are with the instability it may cause China. This being the first time I read the constitution of a government other than the United States of America, I was struck by how similar the Basic Law and the Constitution sounded. On the surface they are very similar.
They both are the frameworks for their respective governments. They detail how the government will be organized, what functions each piece will have in the system, and explains what powers each branch will have to change the system. It is in comparing how these documents set up the functions of government that the differences come to the forefront. The Basic Law and the Constitution set requirements for people who would like to hold public office.
In the United States of America you must be at least 35 years old and be a natural born citizen to be President. In order to be the Chief Executive of Hong Kong you must be a Chinese citizen and be at least 40 years of age. The Chief Executive must also be a permanent resident of the region and ordinarily resided in Hong Kong for a continuous period of not less than 20 years.
The U.S. Constitution prescribes that the president be selected by the Electoral College, which is composed of delegates sent by each state in order to elect the president. The Basic Law is a little less clear about how the Chief Executive will be selected.
It states, “the Chief Executive will be elected or appointed by the Central’s People’s Government.” When I read that I wonder if they are leaving open a future where the citizens of Hong Kong may elect their own Chief Executive. For the time being the current Chief Executive was appointed by the Central’s People’s Government.
The powers and responsibilities of the Chief Executive and the President are also similar. The Chief Executive can veto bills from the Legislative Council, like the President can veto legislation from Congress. It is the responsibility of both positions to led their government and set public policy. They must implement the laws of the country.
Both the President and the Chief Executive appoints their advisory boards. The President appoints people to be members of his cabinet or to be judges, and then the Senate must approve them. The Chief Executive appoints people to be on the Executive Council, to be Department heads, Assistant Department heads, and all judges in the Hong Kong region.
It is also within the Chief Executives scope of power to remove any of the aforementioned people from office.Both executive positions derive their power to pardon from their respective constitutions. The Chief Executive like the President has the authority to dictate the military’s actions.The Basic Law is also similar to the United States Constitution in the powers and responsibilities it lays out for it Legislative Branch, known as the Legislative Council. The Legislative Council is there to assist the Chief Executive in governing Hong Kong, it is suppose to be the citizens voice, to speak about the issues facing Hong Kong.
The Basic Law, like the Constitution sets term limits on the length of time spent in office, by council members. Both documents put the power to set forth laws in the hands of the Legislative branch. In America and Hong Kong all taxes and government spending have to be approved by the Legislative branches. The Basic Law also intends for the Legislative branch to a place where government and public management is questioned. It states that one the Legislative Council’s responsibilities are “to receive and debate policy addresses of the Chief Executive.
” The Basic Law goes further and says another job of the Council’s is “to raise questions on the work of governments.” These on the surface make it sound like the Basic Law gives the Legislative Council the ability to check the Chief Executive, but the document goes no further. It doesn’t put forward a way for the Council to block an action of the Executive branch like the United States Constitution employs. The constitutions begin to differ when the presidential powers begin to be limited. In contrast the Basic Law authorizes the Chief Executive more control compared to The President. The United States constitution created three separate branches of government to ensure each branch was independent of the other, there by eliminating the possibility of one man taking control of the government. The three separate branches must work together to make the government function efficiently.
This separation is non-existent in the Basic Law. The Chief Executive has all the authority and the other branches of the government are there simply to support his decision. If the other branches of government are causing the Chief Executive difficulty the Basic Law has provided him a way to remove any obstacles. The Basic Law states that the Chief Executive has the power, “to decide, in light of security and vital public welfare, whether government officials or other personal in charge of government affairs will testify,” in court proceedings. Thereby, sidestepping legal actions against his administration. The Basic Law also gives the Chief Executive the option of dissolving the Legislative Council, if the council overrides his veto on a piece of legislation, which he did not want passed.
The only two checks on the Chief Executive powers are that he must resign if after he has dissolved the Legislative Council over a piece of legislation and the new Legislative Council send it to him again and he still refuses to sign it. The second check on the Chief Executive of Hong Kong does not come from with in his government, but from the Basic Law, which requires him, “to implement directives by the Central’s People’s Republic.” This one line shows the true nature of Hong Kong’s, “One country, Two system,” concept; which is that China is running the show no matter what message the Hong Kong government is putting for the public to see. Byron Weng, chairman of the department of Governments and Public Administration at the Chinese University of Hong Kong, has called the New Hong Kong system a “birdcage democracy,” expressing his view that China was basically putting a show on for public consumption. Weng did an article for the CSIS Hong Kong Update, in which he discussed Hong Kong one year after the hand-over. He points out in his article that everyday-life in Hong Kong has not changed much in regards to the changes that have occurred in the government.
Weng did see some changes in the political process like the gradual politicization of government offices. For example, in present day Hong Kong the Civil Servant Secretaries no longer have to authority to respond to a problem or to insensate a solution. This is slowing down government services. Another trend Weng noticed was with economic downturn of the Asian market, there is a new demand for welfare.Gail Dutton, in her review Hong King, One year later, she points out that China is not censoring Hong Kong, instead it is Hong Kong’s businessmen who are censoring themselves.
The businessmen want to avoid making waves. Dutton points to Ming Pao as an example, a leading Chinese language newspaper, which fired columnists who had strong criticisms about the People’s Republic of China. The paper also advised it remaining columnist to tone down the rhetoric. Another change in Hong Kong’s government according to Dutton is that information may not be disseminated without government authorization, if it relates to government operations, government personal, international organizations, or even crimes and special investigations carried out under statutory warrants. Almost anything from plane crashes to fires may be with held from the media. During the last year privacy laws have been amended to limit information which is available about public figures. This concerns Dutton, she sees privacy as a disguise for hiding illegal practices.
It is also the step in centralizing the media, which would not be a far jump to the government of Hong Kong dictating how stories will be written. The liberty of freedom of the press is some thing that acts as check on every government. It keeps a limited amount of power in the people’s hands it lets them know what the government is doing in their name and make the government a little more accountable to the people.
While it is a surprise to no one that the Chinese media is state controlled, it was somewhat a shock when they started limiting access to the press in Hong Kong.While this self-imposed censorship is proscribed to by most businesses, those who do speak their mind are subject to recrimination for speaking out against the Chinese government. For examples, in 1994 when Jimmy Lai Chee-ying, owner of the infamous Apple Daily newspaper called Chinese Premier Li Peng a “turtle’s egg with a zero IQ,” the remark was taken as a grave insult. Following the remarks Chee-ying’s reporters were banned from China and his clothing business found itself with a “licensing problem” through out China.In this past year there have been no drastic changes. China appears to be cautious not to overact and make a mistake that could blow up in their faces.
The Chinese government prefers to work behind the scenes trying to convince the citizens of Hong Kong, it is in their best interests to work with China. This is not an uncommon situation for the residents of Hong Kong. England used the same argument in Hog Kong’s colonial period. The optimists in Hong Kong look at the handover as the first chance the people of Hong Kong have had to participate in self-government.
They are hopeful about their economic future and see this as an opportunity to act as a doorway for the world to the closed Chinese market place. The pessimists see the handover as the beginning of the end for Hong Kong. They fear political crackdowns, losing the economic freedoms they have enjoyed under British rule, and some simply worry about losing their identity as a world player and becoming just another Chinese province. It has only been a year and too early to tell if any of these fears or hopes have grounds to stand on. The current economic problems in Hong Kong cannot be blamed on China, they are instead a product of the economic downturn all Asia is suffering from.
I believe the most major change will most likely occur with people outside of Hong Kong and China, foreigners will no longer think of Hong Kong as a place independent of China, but instead a mere providence of China. Like most changes involving China, it will happen slowly.