What if the law itself is unjust? Rethinking Basic Law

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Until last year, many believed that abiding by the Basic Law would deliver democracy and justice to Hong Kong. As frustration grows, some begin to ask: what if the law itself is unjust?

Rule of law is the bedrock of Hong Kong’s peace and prosperity. This is one of the few things that an overwhelming majority of the city’s population could agree on, whatever their political stripe.

But, what if the law itself is unfair and unjust?

For some time, doubt has arisen to question if the Basic Law, instead of strengthening freedoms and serving as framework to develop democracy, has become a tool, manipulated to serve Beijing’s interests and not Hong Kong’s.

Few would try to fundamentally nullify the constitutional document. It guarantees several principles so precious to Hongkongers that they cannot afford to abandon to document altogether: ‘One Country, Two Systems’, private property rights, and 50 years free from Communism are core principles valued by the people of Hong Kong.

However, some are starting to question the core. At a student forum outside the LegCo complex on June 17, Wong Ching-fung, President of Chinese University Student Union (CUSU) bravely declared his ‘no’ vote of confidence in Basic Law, a radical claim that most of his older allies, particularly the pan-democrats in LegCo, would recoil from.

“The Basic Law is ultimately colonial. It legitimises pre-selection of CE candidates by the election committee, which basically is a privileged class in our city,” he says, “It should be rewritten by Hong Kong people, for Hong Kong people.”

Rewriting the Basic Law

The injustice inherent to the Basic Law, according to Wong, is that the drafting process never really addressed the people of Hong Kong.

“In 1985, of the 59 members of the Hong Kong Basic Law Drafting Committee, only 23 were from Hong Kong,” he explains. “Although some say the appointment of the members was acceptably balanced since there were democrats like Szeto Wah and Martin Lee, but that does not invalidate the fact that the whole process is undemocratic.”

He claimed that the Basic Law was imposed on the people, not given standing by the consent of those to be governed.

“The drafting process did not involve holding a referendum to ask for Hong Kong people’s consent,” he says. “In this case, the Hong Kong people never had the right to determine their own fate.”

“The Basic Law is ultimately colonial.”—Wong Ching-fung, President of CUSU.

Furthermore, Wong believes that some clauses in the Basic Law constitute injustice, contrary to its original intention to make Hong Kong a fair and safe society.

“Some articles are outright harmful to Hong Kong people’s right to decide their own destiny,” he says. “For example, Article 23 creates the perfect excuse for the regime to prosecute anyone just by what they say. […] Article 74 prescribes a colonial system, in which the LegCo chairman has too much discretion over the members. Also, the CE has too much power, say in appointing members of the Town Planning Board.”

Goose, gander

What made him rethink about the Basic Law was Beijing’s 831 Decision last year. If Beijing is trying to push its agenda further by altering the Basic Law, why should not Hongkongers do the same?

“The regime has attempted to alter the Basic Law to its advantage many times, mainly by utilising the Standing Committee of the National People’s Congress’ (NPC Standing Committee) rights to interpret the document,” he says. “Apart from that, the White Paper and 831 Decision are essentially alterations as well. The articles in Basic Law that prescribes universal suffrage did not mean the way interpreted [by the White Paper and 831 Decision].”

The remedy for this unjust system, Wong believes, is to have the Hong Kong people rethink about the document, or even attempt to rewrite it.

“Many Hong Kong people are unaware that the Basic Law is so problematic. […] For years, the advocacy for democracy in Hong Kong blurred out this part.” he says. “The Basic Law was debated before the Handover, when it had not been carried out yet and people are wondering what would happen after 1997, but the discussion died out after the Handover really took place. Carrying on with what was discussed back then, this is the time when we should think what happens after 2047.”

This is our election

The promised ‘democratisation’ of Hong Kong is provisioned by the Basic Law in Article 45, Annex I, and the recent 831 Decision. Many Hongkongers, especially those who were pro-democracy, were in doubt whether the electoral system designed by Beijing could really bring democracy to Hong Kong.

June 17 Citizen Charter’s booth in Wan Chai during the July 1 rally this year. The yellow-shirted speaker is Alpais Lam Wai-sze, the teacher who confronted the police and spouted profanities when the police cordoned off Falun Gong’s booth in Mongkok in August 2013. June 17 Citizen Charter’s booth in Wan Chai during the July 1 rally this year. The yellow-shirted speaker is Alpais Lam Wai-sze, the teacher who confronted the police and spouted profanities when the police cordoned off Falun Gong’s booth in Mongkok in August 2013.

James Hon, convenor of the June 17 Citizen Charter, decided that Hong Kong needs its own election. He founded the June 17 Citizen Charter with Fung Chi Wood, an Anglican priest, and is attempting to to organise an unofficial CE election that would fit into their democratic expectations.

“The regime sets a 40 years old age restriction for CE candidacy [in the Chief Executive Election Ordinance],” He explains. “According to Article 26 of the Basic Law, all permanent residents of Hong Kong enjoy the right to elect and to be elected. […] This is what our unofficial election will adopt. Any Hong Kong permanent resident aged over 18 can run in our election.”

Frustrated with the year-long political reform drama, democrats like James Hon realise that the legislature is much restrained by the regime and the power structure prescribed by the Basic Law and other legal provisions.

According to Article 74 of the Basic Law, “Bills which do not relate to public expenditure or political structure or the operation of the government may be introduced individually or jointly by members of the Council.”

“The process of rewriting is going to be even more difficult than the political reform.”—Kevin Yam, member of Progressive Lawyer Group.

Under the prohibition of private bills related to the political structure, it is legally impossible for democrats to put forward their own political reform bill in LegCo. Hon believes that the change is only going to happen among the people.

“Re-opening the dialogue for political reform will not take us to anywhere. Something like the 831 Decision would be tabled again, and the chaos will start all over. The only thing we can do by then is to veto it again in LegCo,” he says. “What we can do now is to form an unofficial government, a discourse platform for us to design our own policies.”

Possible backlash from the regime

Activists and students are diligently preparing for their campaigns about the Basic Law, perhaps in vain. Kevin Yam, a member in the Progressive Lawyers Group, a collective of lawyers in favour of Hong Kong democracy, suggests the path to change is perilous.

“The process of rewriting is going to be even more difficult than the political reform,” he explains. “According to Article 159, to amend the Basic Law, you need get the approval from a two-third majority of the Hong Kong delegation of the NPC Standing Committee, then from another two-third majority of the LegCo, and from the Chief Executive. After that, the Hong Kong delegation at the NPC Standing Committee will submit the bill to the NPC for final approval.”

Students said they want to amend Article 159 to give the Hong Kong legislature greater discretion over the Basic Law. The act of amending Article 159 needs to go through the procedure itself as well.

If democrats are to launch a challenge to the constitutional standing of the law, it is not going to be easy as there exists a precedent of the Court acknowledging the NPC Standing Committee’s right to interpret the Basic Law.

“In 1997, there was the case HKSAR v. Ma Wai Kwan David,” Yam explains. “The judge decided that the Basic Law is an act of state. […] If we are to go for [lawsuit], it will take lots and lots of preparation.”

In the HKSAR v. Ma Wai Kwan David case, the judgement reads, “The Basic Law is Chinese law applicable to the HKSAR and is semi-constitutional in nature. It falls for the Hong Kong courts with specified limits to interpret its provisions. The whole tenor of the Basic Law – following the Joint Declaration – is to establish continuity save for those changes necessary upon the Chinese resumption of sovereignty.”

With all that being said, Yam agrees that the students have their point. “If they do this for the sake of provoking some sort of civil awakening, this makes perfect sense,” he says.

Existing constitutional framework aside, Yam suggests from the political perspective that if the students can summon sufficient public support for rewriting the document, changes might happen.

“[If they could] create so much public pressure, the government will have to address that, or more even, Article 159 might have to give way,” he says. “But that is, only if you have overwhelming public support.”

But then, Yam also believes that it is important to try to make their claims appeal to not only the existing supporters, but also people who are not used to agreeing with pro-democracy claims. “When you hold forums and assemblies, the participants would only be the people who have already awakened. It is an echo chamber,” he remarks.

Conflict over constitutional reform of the electoral systems produced the Occupation of Hong Kong. Conflict over the whole of the Basic Law may produce equally, or even more, contentious results.