Hong Kong treads the democracy tightrope

by Frank Ching

The Hong Kong government announced earlier this month that it had nominated a leading jurist, Justice Geoffrey Ma, to be the next head of the judiciary, succeeding Chief Justice Andrew Li, who served in that post since the former British colony became a special administrative region of China in 1997.

The development reflects the paradox of Hong Kong. On one hand, it can be seen as evidence of the success of China’s policy of “one country, two systems,” with the choice of Justice Ma having been made entirely within Hong Kong, with no interference from Beijing.

At the same time, however, there is speculation that Chief Justice Li, who is taking early retirement, is stepping down to pre-empt any move by China in the coming years to rein in the Hong Kong judiciary to make it more responsive to Beijing’s wishes.

It is clear that Beijing is not very happy with the way the former British colony has developed in the last decade or so.

For one thing, Hong Kong has not implemented a key provision in the Basic Law, the region’s mini-constitution, which was enacted by the National People’s Congress, China’s parliament, in 1990.

This provision, Article 23, requires Hong Kong to enact legislation against political offenses, such as treason, secession, sedition, subversion and theft of state secrets.

While Beijing sees implementation as being necessary to prevent the city from turning into a base for subversion against the mainland, many people in Hong Kong fear that such legislation will result in an erosion of their basic rights and freedoms.

An attempt in 2002-2003 to pass such legislation backfired, with 500,000 people marching in protest. This ultimately led to the resignation of then Chief Executive Tung Chee-hwa and his succession by current Chief Executive Donald Tsang.

The former Portuguese colony of Macau, now also a special administrative region, has had no such problem. Although it reverted to Chinese rule two years later than Hong Kong, it passed Article 23 legislation last year without any fuss.

Chinese leaders have been loud in their praise of Macau, with implied criticism of Hong Kong. Chief Executive Tsang, whose term ends in 2012, has said that he has no plans to enact such legislation.

The independence of the judiciary is seen by observers generally as the fundamental difference between the former British colony and mainland China, vital to the maintenance of the residents’ rights and freedoms. And yet, it often seems like China does not understand the difference between its own party-controlled judiciary and that in Hong Kong.

In 2008, for example, when Vice President Xi Jinping visited Hong Kong, he publicly called on the administration, the legislature and the judiciary to “understand and support” each other. He was subsequently criticized in the media for not understanding the independent status of the judiciary, which is not a part of the administration.

But this is the man who is expected to succeed Hu Jintao when he steps down as the head of the Chinese Communist Party in 2012, the same year when Hong Kong will get a new chief executive. The fear is that Beijing may wish then to crack the whip and bring Hong Kong back into line, including a less independent judiciary.

Fear of that scenario, many observers think, is what prompted the 61-year-old Chief Justice Li not to wait until reaching the retirement age of 65 to step down. By retiring early, he is creating the opportunity for a much younger man, such as the 54-year-old Justice Ma, to succeed him and to appoint senior judges to replace other aging members of the Court of Final Appeal.

Moreover, the new chief justice will not reach retirement age until 2021. Meanwhile, Hong Kong is expected to elect a new chief executive by universal suffrage in 2017 and, hopefully, the entire legislature by universal suffrage in 2020.

If these things actually happen, then by the time the next chief justice steps down, the independence of the judiciary, like democracy in Hong Kong, would be so strongly entrenched that it would be difficult for Beijing to try to undo it.

Thus, while the appointment of a new chief justice can be taken as evidence that “one country, two systems” is doing well, it can also be viewed as an illustration that Hong Kong is not yet out of the woods and may still be faced with attempts by Beijing to crack the whip and impose its will not only on the executive but on the judiciary as well.

Frank Ching is a journalist and commentator.