Martin Lee: Betrayed by Beijing

After more than half a million Hong Kong people took to the streets last July in a peaceful and dignified demonstration for freedom and democracy, Beijing responded by showering economic benefits on the territory. It did so in the belief that these benefits would dampen Hong Kong people's aspirations for universal suffrage. But it was wrong.

In local elections last November, the democratic camp crushed its pro-Beijing rivals, showing that the desire for democracy remains undiminished. Beijing responded to the electoral defeat of its allies by launching a scathing attack on the leaders of Hong Kong's democratic camp, using language not heard since the Cultural Revolution of 1960s. I was called a dreamer, clown, liar and even a traitor.

China's fear is that in further elections -- due on Sept. 12 -- the pro-Beijing camp will lose control of Hong Kong's legislature, even though only half of its 60 members will be elected through universal suffrage. So last Friday, it was announced that a Chinese parliamentary committee is going to issue a fresh interpretation of key phrases in Hong Kong's mini-constitution, the Basic Law. These phrases allow the democratic election of the territory's chief executive -- who is currently chosen by a committee of 800 -- by 2007, and the entire Legislative Council by 2008.

That announcement shocked Hong Kong because it is not what we were led to expect by former Chinese leader Deng Xiaoping's principles of "one country, two systems" and "Hong Kong people ruling Hong Kong . . . with a high degree of autonomy." Those principles have supposedly governed the territory since it reverted to Chinese sovereignty in 1997. They date back to the Sino-British Joint Declaration of 1984, under which Britain agreed to return Hong Kong, a treaty warmly endorsed by many foreign governments at the time.

Among other things, the Joint Declaration provided for the continuation of the common law system in Hong Kong. And under common law, it is the courts that interpret a law, not the legislature that enacted it. The Basic Law even contains a provision reinforcing this. Under Article 158, the courts of Hong Kong are expressly allowed to interpret the Basic Law in many circumstances.

But that is not what is happening now. Taking advantage of the principle in the Chinese legal system that laws can be interpreted by the body that enacted them, the Standing Committee of China's National People's Congress (NPC) has taken on the task of interpreting these provisions so crucial to Hong Kong's democratic aspirations. Since Chinese law doesn't place any restriction on the scope of such interpretations, black can even be interpreted as white, if Beijing believes the circumstances warrant it.

Beijing has tried to reassure Hong Kong people that the proposed interpretation will be mild and acceptable to the public. But that does not answer the question of why there is a need for such a interpretation, and why it has not been left to the Hong Kong courts to carry out the task.

Under the mini-constitution, the people of Hong Kong were promised that the "ultimate aim" is the election of the chief executive and the entire legislature through "universal suffrage." The Basic Law does qualify this by saying that progress toward that goal will depend on the "the actual situation in Hong Kong" and "the principle of gradual and orderly progress." But it also clearly allows for universal suffrage to be introduced at any

time from 2007 onward, "if there is a need to do so."

And that's where the problem lies. One of the issues that the NPC Standing Committee is expected to interpret is who has the power to decide "if there is a need" for more democracy. And the Hong Kong government has already given its answer, saying that decision involves Beijing. If that interpretation is reinforced by the Standing Committee then China will be able to block any moves toward universal suffrage, simply by saying it is not in line with "the actual situation" in Hong Kong or "the principle of gradual and orderly progress."

Beijing's position has been aptly put by a pro-Beijing politician some years ago: "If the Democratic Party keeps on winning elections, Hong Kong will never have democracy. But if the pro-Beijing camp were to win, Hong Kong will have democracy tomorrow."

All this is not only wrong, but also completely unnecessary, as Beijing doesn't need an interpretation from the NPC Standing Committee to stall the development of democracy in Hong Kong. Any bill to amend existing electoral laws can only be put forward by the Hong Kong government. And under Annexes I and II of the Basic Law, it can only succeed with the endorsement of two thirds of legislators and the consent of the current chief executive. It also has to be reported to the NPC Standing Committee and, in the case of changes to the election of the chief executive, that body must give its approval.

What Beijing is now doing goes beyond simply interpreting some key words in the Basic Law with a view to controlling the development of democracy in Hong Kong. Instead it is reinterpreting the whole principle of one country, two systems. In doing so, it has provided an excuse for Taiwan President Chen Shui-bian to reject reunification on the basis of one country, two systems, which is a very sad thing for the people of Hong Kong who support reunification.

In emphasizing the one country part of the formula, Beijing is telling Hong Kong people that ours is the subservient system, and theirs is the dominant one. They are telling us that the promises of freedom and democracy and everything else contained in the Joint Declaration and the Basic Law are subject to Beijing's interpretation, an interpretation which Hong Kong courts are not allowed to dispute.

Hong Kong people can still hope, and they will no doubt be encouraged to hope, that they will continue to enjoy the same freedoms as under British rule. But that will only hold true for so long as there is no interpretation to the contrary by the NPC Standing Committee, an interpretation which can take place at any time and without notice.

Perhaps that is what Deng intended all along. But it is certainly not what Hong Kong people envisaged in 1984, or even after 1997. The question is would the U.S. government and so many other governments have so enthusiastically supported the Joint Declaration in 1984 if they had known of the real intentions of Beijing at the time?

Mr. Lee is a democratically elected member of Hong Kong's Legislative Council, and a former member of the Basic Law Drafting Committee.

(Published on 1 April 2004, The Asian Wall Street Journal)