A reaction paper
Born, brought up and even finished education from University of Hong Kong, Johannes Chan Man-mun is a professor at his alma mater University of Hong Kong as well as the dean of Faculty of Law. A man who faced several hurdles because of his interests and writings on Human Rights, Constitutional and Administrative Laws in an authoritarian state, offers interesting insight of the political, cultural and legal system of the state, information of which is not easily accessible.
The piece at hand discusses multiple themes- tension between socialist/civil law system and common law system, independence of judiciary, localism, interpretation of basic law, oath of office and disqualifications of elected legislators, public demonstration and civil disobedience and more importantly holding the liberal values of common law amidst the rising authoritarian regime post 19th Congress.
Hong Kong celebrated its 20th anniversary as SAR (Special Administrative Region) of China. SAR offers some portion of a country to maintain some degree of political and economic independence. Hong Kong exists under China’s ‘One party, two systems’ doctrine which ensures non-interference of People’s Republic of China and its socialist system until 2047 as per the Sino-British Joint Declaration (negotiated and signed in 1984 and effective from 1997). However, over the years, the social and political freedom seems to be declining as reported by BBC news which reported missing booksellers, tycoon, press and academic freedoms, expelling US Journalists etc.
The contribution of Hong Kong in GDP due to free trade and certain liberties offered has increased for its termed as the ‘freest trade region’ and thus (correctly pointed out by author) troubled China, leading to the changes post 19th congress election of Xi Jinping. He reverted Deng Xiaoping’s doctrine of separation of power and revised party constitution to increase his power and make it most authoritarian state. This revision hampered with the independence of judiciary with Beijing’s pressure of authoritarianism via not releasing the arrested protestors and avoid ruling on core constitutional matters.
The doctrine of, ‘One party, two systems’ is governed by Basic Law. Uncodified constitutions extract constitutional powers from basic law. This rule of law remains strong in respect to protecting property rights and maintaining social order, however, post recent elections, fundamental rights have exhibited a deteriorating trend according to the WJP Index and democratic development remains stagnant, as shown by the Freedom House Index which stresses democratic development. As reported by BBC news, under Basic Law, Hong Kong’s courts are responsible – “within the limits of its autonomy” – for determining whether the government’s actions are legal, adding to which, the interpretation however lies in hand of ‘China’s stamp parliament, NPCSC’, which according to critiques is changing the law rather than interpreting it in a convincing manner as is illustrated by Chan w.r.t. to oath of office and disqualifications.
This autonomy has resulted in more of an authoritative legalism then liberal legalism. This dynamic of Hong Kong’s rule of law can be facilitated by the “capacity of the state to provide an arena of private law without any expansion of the public sphere”. It can thus be concluded that currently “The law serves market economy and does not facilitate the liberal political pluralism”.
“Legalisation without (full) democratisation” has been the core pillar of Beijing’s overall legal strategy for governing Hong Kong as local authorities are utilising judicial means to target separatism and constraining political space. (BBC news) Chan correctly pointed out that courts have substantially contributed in defending Hong Kong’s liberalism; however, in furtherance, courts have restricted legal and political mobilisation which directly challenges the central authoritarian regime. This has convincingly germinated doubts on Hing Kong’s rule of law which is being highly influenced by rising authoritarian legalism which led to such violent public demonstrations.
This led to emergence of localism, which essentially refers to (in context of Hong Kong) the commitment to protect prevailing interest and identities. Beijing in wake of aforementioned, disqualified elected legislators via interpreting the importance of oath of office. Courts too have facilitated centre in such task by deciding in very diplomatic manner over cases which involved this question. This undermines the ability of Hong Kong to maintain its identity as the ‘freest state’ in future. As the agreement of this arrangement ends in 2047, there is a rising concern for will Hong Kong be able to maintain its independence or would it succumb to the authoritarian regime of mainland?
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