[Senate Hearing 108-480]
[From the U.S. Government Publishing Office]
S. Hrg. 108-480
DEMOCRACY IN HONG KONG
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON EAST ASIAN
AND PACIFIC AFFAIRS
OF THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
MARCH 4, 2004
__________
Printed for the use of the Committee on Foreign Relations
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COMMITTEE ON FOREIGN RELATIONS
RICHARD G. LUGAR, Indiana, Chairman
CHUCK HAGEL, Nebraska JOSEPH R. BIDEN, Jr., Delaware
LINCOLN CHAFEE, Rhode Island PAUL S. SARBANES, Maryland
GEORGE ALLEN, Virginia CHRISTOPHER J. DODD, Connecticut
SAM BROWNBACK, Kansas JOHN F. KERRY, Massachusetts
MICHAEL B. ENZI, Wyoming RUSSELL D. FEINGOLD, Wisconsin
GEORGE V. VOINOVICH, Ohio BARBARA BOXER, California
LAMAR ALEXANDER, Tennessee BILL NELSON, Florida
NORM COLEMAN, Minnesota JOHN D. ROCKEFELLER IV, West
JOHN E. SUNUNU, New Hampshire Virginia
JON S. CORZINE, New Jersey
Kenneth A. Myers, Jr., Staff Director
Antony J. Blinken, Democratic Staff Director
------
SUBCOMMITTEE ON EAST ASIAN
AND PACIFIC AFFAIRS
SAM BROWNBACK, Kansas, Chairman
LAMAR ALEXANDER, Tennessee JOHN F. KERRY, Massachusetts
CHUCK HAGEL, Nebraska JOHN D. ROCKEFELLER IV, West
GEORGE ALLEN, Virginia Virginia
GEORGE V. VOINOVICH, Ohio RUSSELL D. FEINGOLD, Wisconsin
JON S. CORZINE, New Jersey
(ii)
C O N T E N T S
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Page
Bork, Ms. Ellen, deputy director, The Project for a New American
Century, Washington, DC........................................ 43
Prepared statement........................................... 44
Brownback, Hon. Sam, U.S. Senator from Kansas, opening statement. 1
Feinerman, Prof. James V., James M. Morita Professor of Asian
Legal Studies, Georgetown University Law Center, Washington, DC 29
Prepared statement........................................... 31
Law, Mr. Yuk-kai, Human Rights Monitor Director, Hong Kong....... 20
Prepared statement........................................... 22
Lee, Mr. Cheuk-yan, Member of Legislative Council, Hong Kong..... 17
Prepared statement........................................... 18
Lee, Mr. Martin, Member of Legislative Council, Hong Kong........ 11
Prepared statement........................................... 13
Schriver, Mr. Randall G., Deputy Assistant Secretary of State,
Bureau of East Asian and Pacific Affairs, U.S. Department of
State, Washington, DC.......................................... 2
Prepared statement........................................... 6
Tkacik, Mr. John J., Jr., Research Fellow in China Policy, The
Heritage Foundation, Washington, DC............................ 46
Prepared statement........................................... 48
To, Mr. James, Member of Legislative Council, Hong Kong.......... 15
(iii)
DEMOCRACY IN HONG KONG
----------
THURSDAY, MARCH 4, 2004
U.S. Senate,
Subcommittee on East Asian
and Pacific Affairs,
Committee on Foreign Relations,
Washington, DC.
The subcommittee met at 2:32 p.m., in room SD-419, Dirksen
Senate Office Building, Hon. Sam Brownback (chairman of the
subcommittee), presiding.
Present: Senator Brownback.
opening statement of senator sam brownback
Senator Brownback. The hearing will come to order.
Today's hearing on Hong Kong is the first since 1999 and
only the second hearing since the transfer of sovereignty in
1997. This hearing will review how Hong Kong functions as a
special administrative region of China and it will examine U.S.
policy with respect to the evolving situation in Hong Kong.
The future of Hong Kong is of personal interest to me. I
enjoyed my trip to Hong Kong earlier this year where I had a
chance to meet with some of our witnesses today. The future of
Hong Kong is also of great interest to this committee, as well
as other Members of the Senate as a whole.
The source of U.S. policy on Hong Kong is the 1992 Hong
Kong Policy Act. That act allowed the United States to treat
Hong Kong as a distinct entity, even as we recognize that it is
legally a part of China. Hong Kong is a part of China, but its
system of government is understood to be distinct from the
system that governs the rest of the nation.
Our strong relationship with Hong Kong is based on this
distinction. Hong Kong is a key trading partner because of its
commitment to free markets. Hong Kong's open society is a
valuable example to other Asian peoples experimenting with
democratic reforms. Hong Kong is also a valuable ally on the
war on terrorism. These characteristics illustrate why the
United States supports a government in Hong Kong that is based
on democracy.
In recent days, we have seen Beijing use official media
sources to reject moves toward universal suffrage. Beijing also
has begun to question the patriotism of those favoring
democratic reforms. The reasons for these statements are
unclear to me, but whatever the reasons for Beijing's concerns,
they are unfounded. Patriotism and democracy go hand in hand,
and Beijing has nothing to fear from the development of
democracy in Hong Kong. After all, the people of Hong Kong are
not demanding independence and neither is the United States. In
fact, last July's demonstrations in Hong Kong, as well as those
in January, clearly indicate that people can air their
grievances without undermining stability.
Today's hearing is first and foremost a discussion of U.S.
policy. We will discuss how Hong Kong can build its democracy
and what role the United States should play in that
development. Hong Kong's residents continue to demonstrate the
power of the people, and that power should be affirmed through
democratic processes that make all government officials
accountable to a voting public.
An essential part of this discussion is the Basic Law, the
document that governs the Hong Kong Special Administrative
Region. There is much confusion about the Basic Law and I hope
we can have a meaningful discussion of it today. Whether the
Basic Law can help us reach the goal of real democracy in Hong
Kong remains an open question, but one thing should be clear:
our goal of democratic reform should be met sooner rather than
later.
In the end, Beijing must not obscure the meaning of two
systems in its ``one country, two systems'' formula. The U.S.
relationship with Hong Kong is based on the understanding that
it will have a separate system of government and our Hong Kong
Policy Act declares democratization to be a fundamental
principle for U.S. Hong Kong policy. If there is one thing
everyone can take from today's hearing, I hope it would be
this: If Hong Kong is forced away from autonomy and
democratization, U.S. policy will be forced to change as well.
We have three panels that will be presenting today on this
topic and on this discussion. We will have questions back and
forth. The first panel features Mr. Randy Schriver, who is
Deputy Assistant Secretary of State for East Asian Affairs at
the State Department. I look forward to his testimony.
Mr. Schriver, welcome to the committee. We are delighted
you are here. Your full written testimony will be put in the
record. You are free to summarize if you would choose to do so.
STATEMENT OF RANDALL G. SCHRIVER, DEPUTY ASSISTANT SECRETARY OF
STATE, BUREAU OF EAST ASIAN AND PACIFIC AFFAIRS
Mr. Schriver. Thank you, Mr. Chairman, and thank you for
the opportunity to speak to you today about a very important
topic at a very important time. We are here to talk about the
future of Hong Kong and, in particular, the prospects for
democratic development.
The underlying goal associated with U.S. policy has
remained consistent both before reversion and after, and that
is to help the people of Hong Kong preserve their way of life
and their prosperity, as well as to contribute to political
progress there. This is good for Hong Kong but also promotes
U.S. interests.
We view Hong Kong today as still a work in progress. It is
a unique political entity, established through source documents
that we know, the Joint Declaration of 1984, the PRC/UK Joint
Declaration, the subsequent promulgation of the Basic Law, but
it is also defined as an entity after nearly 7 years of
experience of the Hong Kong Government running most of its day-
to-day affairs on its own.
So this is a very sui generis situation we have with Hong
Kong. We have embraced this unique status, Mr. Chairman, as you
mentioned, through our legislation which does give us the legal
foundation to treat Hong Kong in a special way as an entity
distinct from the PRC, but in a special way with respect to
things like export controls. So this is unique. We have
embraced that unique nature, but yet it is a work in progress,
particularly when we start to look at questions related to the
political evolution of Hong Kong.
What we can say, as a consequence thus far in the
experience of the last 7 years, is that Hong Kong does remain a
very free economy. Civil liberties have been protected. There
remains freedom of the press, freedom of assembly, and strong
rule of law. Though political freedoms continue to lag--and
this is something that we will spend I think the majority of
our time on--these liberties and rights that Hong Kong
continues to enjoy are in fact very fundamental human freedoms.
I would note also that they are necessary elements, though not,
of course, sufficient in and of themselves, but necessary
elements to sustaining a vibrant democracy so when the
political elements follow, these other strong elements are
already in place and will be to the benefit of the people of
Hong Kong.
We do have profound interests in Hong Kong. There are over
50,000 Americans who work and live there, over 1,000 American
firms operate there. Hong Kong is our 14th largest trading
partner. There are significant foreign-directed investment of
U.S. origin, and this is a very strong trade and economic
relationship. Hong Kong is a modern, sophisticated economy, is
also a strong partner of ours in regional and international
economic and trade fora. They have been a partner, for example,
in promoting economic openness in the Doha Round. I think these
elements are well known and often cited, the economic and trade
aspects.
I think it is also important to note, as you did, Mr.
Chairman, in your statement, that we have been developing a
bilateral relationship in areas that are very key to U.S.
security interests as well. Hong Kong as a port is the No. 1
source of U.S.-bound sea containers. So their decision to join
the Container Security Initiative and the implementation
subsequent to that has been key to protecting our homeland, and
those that have been involved with that program would tell you
that Hong Kong is a model for those that are also beginning the
process of implementing the Container Security Initiative.
Hong Kong has been a key partner in the war on terror.
Particularly, they have played a very valuable role in counter-
terrorism finance efforts, and they, of course, chaired the
Financial Action Task Force in 2003, which plays a key role in
curbing financial resources for terrorists.
Our law enforcement cooperation across the board is
excellent. Hong Kong continues to be a port of call for U.S.
ships, and Hong Kong's autonomous and effective system of
export controls allows us to continue to rely on Hong Kong as a
partner in the protection of sensitive technologies, not
allowing those technologies to proliferate to places that they
should not go.
So it is one of the freest cities in the world, and in fact
the Index of Economic Freedom, which the Heritage Foundation
and the Wall Street Journal publish annually, ranks Hong Kong
as No. 1 as the freest and most open economy in the world out
of a list of 155 economies, and that is a place it has enjoyed
for a decade, the top place. So this creates a comparative
advantage for Hong Kong as an open economy. It also is to our
advantage because many American firms choose Hong Kong as its
Asia base of operation because of that openness and because
they can count on the rule of law there.
Of course, the people of China as well also benefit from
Hong Kong, and this is not just in the direct economic sense
and the development and modernization that China has enjoyed
through its relationship with Hong Kong, but it is also due to
the fact that Hong Kong and its institutions are an excellent
model for China to learn from.
But neither the Economic Freedom Indexes nor the economic
openness address the questions of political freedom, and that
is really where I would like to spend the rest of my time in
the statement.
Mr. Chairman, you noted that the events of the last year
have amply demonstrated the desire of the people of Hong Kong
for a greater voice and to advance the democratization process
that is their right under the Basic Law. The United States has
been very clear. Our longstanding policy is that Hong Kong
should move toward greater democratization and universal
suffrage. The Hong Kong people have shown their desire for this
and they have shown their strong interest in protecting their
civil liberties, most notably last July the half a million
people--Secretary Powell 2 days ago called them the brave
500,000 people--who took to the streets, who peacefully
protested the national security legislation which they feared
would impact their civil liberties, and again on New Years Day
this year with 100,000 demonstrators also voicing their desires
for greater democratization and political progress.
What is important at this juncture is that the Hong Kong
Government consult fully with the people of Hong Kong on
measures to move forward on democratization and toward a
government that more fully represents the people of Hong Kong.
The Hong Kong Government did the right thing last year when
they pulled the legislation related to national security. They
listened to the voice of the people. It is important now that
they listen to the people on other aspects of political
development and primarily we are speaking of the articles that
relate to democratization and universal suffrage, specifically
articles 45 and 68 of the Basic Law, which make clear that the
ultimate aim is universal suffrage.
Hong Kong is clearly ready for this. We have seen progress
at a more local level. We noted the November elections for the
District Council and the 400 seats there. This is the level, of
course, where the roots of the institution of democracy are
planted. Hong Kong has this experience with the District
Council elections. Hong Kong is a very sophisticated, mature,
cosmopolitan society. They are clearly ready to begin this
process of consultation and move in the direction we all hope
they will.
China has a vital stake in Hong Kong's evolution. If it is
true, as Premier Wen Jiabao said in Bali last year, that Hong
Kong people can govern Hong Kong well, then it is only natural
that the people of Hong Kong should have a voice in the
development of Hong Kong's democracy. What they are asking for,
as you noted, Mr. Chairman, is not a separate Hong Kong, not a
separate status or independence. What they are asking for is
for a voice and for a government that is responsive to their
will and what was promised to them and what is their right in
the Basic Law.
Today's disagreements in Hong Kong are not simply about
policy. They are a lot about process and about how to govern.
They are clearly not about whether one person or one group is
imbued with more or less patriotic fervor. Many residents in
Hong Kong feel as though their future and their future success
is best secured by political reform. An unproductive debate
about who is more patriotic or less patriotic or if there is
foreign interference in Hong Kong's development is at best a
diversion but, more troubling, could actually be destructive to
Hong Kong's political evolution and political progress.
Our view is that the people of Hong Kong have made this
point repeatedly and have expressed their desires very clearly
in the past 8 months, and it is time for the government of Hong
Kong to listen and it is time for China to listen as well.
Important decisions and choices will be made in Hong Kong, but
it is also true that important decisions and choices will be
made in Beijing with respect to Hong Kong's future. Chinese
sovereignty is a reality that will affect and heavily influence
the success of those that are dedicated to democracy in Hong
Kong.
Certainly some of the recent statements attributed to
authoritative voices in Beijing reflect a profound discomfort
with the development of democracy in Hong Kong. Some in China,
as I made reference to earlier, have gone so far as to say that
the demonstrations last July and on New Years Day were the
result of a shadowy foreign element or foreign hand. We feel
this reflects a very fundamental misreading of the role of
public debate in open society. We feel, of course, that public
debate serves to promote the kind of development that will, in
fact, secure Hong Kong's prosperity, but also the stability
which Beijing talks about. The key to stability is, in fact,
giving the people a voice and providing them a government that
is responsive to their will, as is their right under the Basic
Law.
These voices notwithstanding, there is one thing on which
we can all agree. We want, and we do need, Hong Kong to
succeed. Again, in our view the best way to ensure that success
is to continue the movement toward democratization. While
respecting Chinese sovereignty, we make these very points in a
straightforward manner in Hong Kong and in Beijing. It is
important that China understand our interests here and that our
interests are in the preservation of Hong Kong's current
freedoms, but also in the continued democratization of Hong
Kong. U.S.-China relations will suffer if the cause of freedom
and democracy in Hong Kong suffers. That outcome would not be
good for people in Hong Kong, in Beijing, or in the United
States.
In conclusion, despite all the changes in the past 11
months, what has not changed is our interest in Hong Kong and
our fundamental interest in the protection of human rights and
the promotion of democratic institutions. Hong Kong residents
can be proud of the work that they have done to try to secure
political progress and achieve political progress for their
future and what they have achieved.
As Secretary Powell stated 2 days ago at Heritage's B.C.
Lee lecture when he spoke about the brave half million people,
it is important to all of those who cherish democracy that Hong
Kong remain open and tolerant and that its political culture
continue to thrive under the Basic Law with China. This
administration will continue to communicate this view to Hong
Kong, to the people, the government there, as well as the
central authorities in Beijing.
With that, Mr. Chairman, I look forward to your questions.
[The prepared statement of Mr. Schriver follows:]
Prepared Statement of Randall G. Schriver
Mr. Chairman, thank you. I appreciate the opportunity to testify
before the Committee today about a subject that engages Americans and
America's interests directly: the future of Hong Kong, including the
prospects for democratic development in Hong Kong.
The underlying goal associated with U.S. policy toward Hong Kong
before and after the 1997 reversion has been consistent: it is based on
our desire to help the people of Hong Kong preserve their prosperity
and way of life. This also promotes important U.S. interests.
Hong Kong is a work in progress and the people of Hong Kong face
the challenge of redefining their economic and political structure. The
1984 Joint Declaration of the UK and the PRC, the subsequent
promulgation of the Basic Law, and Hong Kong's sustained, autonomous
management of its day-to-day affairs laid a foundation for Hong Kong's
continued economic success, as well as its political development. The
United States embraces and supports Hong Kong's uniqueness through
passage and implementation of the Hong Kong Policy Act of 1992 which
established the legal authority to treat Hong Kong as an entity
distinct from the People's Republic of China.
As a consequence of these agreements and legislation, Hong Kong in
the years since reversion has continued to enjoy economic freedoms,
civil liberties, freedom of press and assembly, and strong rule of law.
Though some political freedoms continue to lag--a trend I will address
in detail later on--the liberties and rights Hong Kong has enjoyed
contribute to the preservation of fundamental human freedoms. I might
also add that they are necessary, though not sufficient in and of
themselves, to sustaining a vibrant democracy.
America has a profound interest in commitment to the success of
Hong Kong. Some 50,000 Americans live and work there. Hong Kong hosts
more than 1,000 American firms there, 600 of which have regional
operational responsibilities and employ a quarter of a million people.
Cumulative American foreign direct investment in Hong Kong, a region
with nearly seven million residents, totaled over $35 billion at the
end of 2002. We also have considerable trade interests in Hong Kong.
Total exports of goods and services amounted to $16.8 billion in 2002,
while imports of the same reached approximately $13.3 billion, making
Hong Kong our 14th largest trading partner.
With global trade in goods at $408 billion, Hong Kong has a vital
interest in liberalizing trade internationally. During recent trade
discussions at Cancun, we counted Hong Kong among the most vocal and
effective supporters of open market principles, and, more generally,
Hong Kong has been at the forefront of efforts in the Doha Round to
reduce barriers to trade.
Beyond the trade and investment statistics, there exists an
evolving but vital bilateral cooperation with Hong Kong authorities
which greatly enhances America's security. Hong Kong, the single
largest source of U.S.-bound sea containers, joined the Container
Security Initiative in September 2002 and made its program operational
eight months later in May 2003. In joining the CSI, the Hong Kong
Government underscored our common interest in protecting the smooth
functioning of the global trading system in the face of terrorist
threats. In addition to CSI, Hong Kong, the second largest financial
market in Asia, has worked closely with us and through the premier
global institution for attacking money laundering, the Financial Action
Task Force, which Hong Kong chaired in 2003, to find ways to cut off
terrorist access to financial sources. Law enforcement cooperation,
across-the-board, has been excellent and targeted at protecting the
safety and well-being of the people of Hong Kong and America alike. And
Hong Kong has been a welcoming port-of-call for visits by American
ships; the carrier Kitty Hawk and its battle group will visit Hong Kong
later this week.
I would also note that Hong Kong has an effective, autonomous, and
transparent export control regime that is strengthened through pre-
license checks and post-shipment verification of Hong Kong companies by
U.S. Department of Commerce representatives. During the mid-February
visit to Hong Kong by Commerce Assistant Secretary Julie Myers, Hong
Kong government officials agreed to work with us to strengthen our
already close cooperation. They well understand the importance of
ensuring that the basic infrastructure supporting our export control
cooperation is in good shape. Our exports of high technology
commodities to Hong Kong depend on the integrity of Hong Kong's
separateness and on the effective and vigorous enforcement of Hong
Kong's export control rules and regulations.
What this all means is that in most respects the people of Hong
Kong remain in charge of the important aspects of their destiny. It is
one of Asia's freest cities and on the Index of Economic Freedom, a
measure that was co-published on January 9 by the Heritage Foundation
and The Wall Street Journal, Hong Kong ranks at the top of a list of
155 economies surveyed--and has been in the number one spot for ten
years. This economic openness matters. It is one of the reasons that
many American firms choose Hong Kong as their Asian base. They can
count on the rule of law to protect their investments and promote their
unfettered operation.
As a result, the people of Hong Kong look forward to a future based
on a continuation of today's freedoms and progress toward
democratization. The Chinese government in Beijing itself has said that
in the future, the people of Hong Kong will govern themselves and will
hold their leaders accountable.
Hong Kong's openness, its international status, its welcoming
attitude to business people throughout the world, its active
participation in economic organizations, including the World Trade
Organization--these are elements of Hong Kong's comparative advantage.
The people of mainland China benefit from Hong Kong's openness as
well. Hong Kong has played a key role in helping alter the landscape in
China, especially in South China, where ten million workers or more in
at least 65,000 Hong Kong-run factories are gainfully employed and
learning how to do business with an international focus, and according
to free market principles. Hong Kong provides access to capital markets
and listings on the Hong Kong stock exchange for PRC companies that are
also becoming more international in their orientation everyday. And
Hong Kong institutions such as the Independent Commission Against
Corruption are a model for the PRC government's own efforts in dealing
with corrupt practices.
But neither the Economic Freedom Index nor the economic openness of
Hong Kong measures political freedom and it is this subject and the
issue of democracy that I want to address in a bit more detail.
Events of the past year have amply demonstrated the desire of the
people of Hong Kong to advance the democratization process, as is their
right under the Basic Law. The United States has been very clear: our
longstanding policy is that Hong Kong should move toward greater
democratization and universal suffrage. The Hong Kong people have shown
their desire for movement on this issue and the protection of civil
liberties. Last July 1, a half million Hong Kongers peacefully
protested national security legislation (Article 23), subsequently
withdrawn by the government, that had the potential to restrict their
civil liberties. The people of Hong Kong spoke, eloquently and
peacefully, of their desire for a more effective, more democratic, more
responsive government. The New Year's Day 2004 demonstration of 100,000
people in Hong Kong was another reflection of the desire of the Hong
Kong people to advance the democratization process.
What is most important at this juncture in Hong Kong's ongoing
evolution is for the Hong Kong Government to consult fully with the
public on measures to move toward a government that more fully
represents the interests of the people. We applauded the Hong Kong
Government's willingness last year, in the aftermath of the July
demonstrations, to consult with the governed before moving forward with
the proposed national security legislation. We think it is just as
important now to listen to the public with regard to enlarging Hong
Kong's democratic experiment, as envisioned in Articles 45 and 68 of
the Basic Law, which make clear the ultimate aim of universal suffrage.
In fact, Hong Kong's Secretary for Constitutional Affairs Stephen Lam
said on October 20, 2003 that ``we need to listen to views in society
on what proposals we should consider over the constitutional reform of
2007.'' I can think of no better argument for effective and continuing
public debate than this statement.
As Secretary Powell said in hearings on the budget in January, ``We
join the people of Hong Kong in urging open and frank discussion to
promote constitutional reform and democratization through electoral
reform and universal suffrage.''
In this context, we commend the Hong Kong Government's conduct of
late November elections for the District Council's 400 seats as
showcasing democracy at its best--at the grass roots where people live
and work and their representatives deal with mundane issues of popular
concern--from collecting garbage to the quality of the local school
systems. It is at this level that the roots of the institution of
democracy are planted, where political leaders emerge and are trained
and help build the kind of public consensus and unity that is necessary
in the life of any democratic society. Strengthening and encouraging
these building blocks of democracy will strengthen and expand the
quality of civic and political engagement in Hong Kong.
China has a vital stake in Hong Kong's evolution. In fact, Premier
Wen Jiabao recognized just that in remarks he made last October in
Bali. If, as the Premier said then, ``Hong Kong people can govern Hong
Kong well,'' then it is only natural that the people of Hong Kong
should have a voice in the development of Hong Kong's democracy. What
they are asking, it seems clear to me, is not for a Hong Kong separate
from the mainland; that issue was long settled before reversion in
1997. Hong Kongers are asking for government that is more responsive to
the will of the people.
Democracy is predicated on the assumption that there will be
disagreements, and disagreements are settled in democracies by the
ballot box. Today's disagreements in Hong Kong are over how best to
govern, not on whether one person or one group is imbued with more or
less patriotic fervor. I have little doubt that the people of Hong
Kong, government and citizens alike, are dedicated to maintaining
prosperity and stability in the context of the arrangements made for
the return of Hong Kong to Chinese sovereignty in 1997. Many of them
believe Hong Kong's future is best served by reform of the political
structure and better communication between government and the governed.
An unproductive debate on who is the most patriotic or whether some
people in Hong Kong are being influenced by outsiders is the last thing
that men and women of goodwill should engage in; what could work best
is for all parties, across the political spectrum in Hong Kong, to
forge responsible positions that contribute to the resolution of Hong
Kong's governing structure.
Our view is that the people of Hong Kong have made that point
repeatedly in the past eight months to their government and that it is
time for the governments in Hong Kong--and in China--to listen to them.
Important decisions and choices must be made by the authorities in
Hong Kong. Chinese policymakers in Beijing will also make decisions
regarding Hong Kong's future. Chinese sovereignty is a reality that
will heavily influence the success of those dedicated to democracy in
Hong Kong. Certainly some of the recent statements attributed to
authoritative voices in Beijing reflect a profound discomfort with the
development of democracy in Hong Kong. Some in China have gone so far
as to suggest that the peaceful demonstrations in Hong Kong in support
of universal suffrage are inspired by shadowy, foreign elements. This
notion reflects a fundamental misreading of the role of public debate
in an open society, which in fact serves to promote the kind of
political, economic, social and civic development that is essential to
Hong Kong's stability and prosperity and, we believe, to China's
interests as well.
Those voices notwithstanding, there is one thing on which we all
can agree--we want and need Hong Kong and its people to succeed. In our
view, the best way to ensure Hong Kong's sustained success is continued
movement toward democratization. Modern political rights and freedoms
are essential to the success of a cosmopolitan and sophisticated
society as found in Hong Kong. These attributes undeniably and
irrevocably go together.
While respecting Chinese sovereignty, we make these very points in
a candid, straightforward manner to our interlocutors in Hong Kong and
Beijing. It is important that China understand our strong interest in
the preservation of Hong Kong's current freedoms, as well as our
interest in the continued democratization of Hong Kong as called for in
the Basic Law. U.S.-China relations will suffer if the cause of freedom
and democracy suffers in Hong Kong. None of us--in Hong Kong, in
Beijing, in Washington or elsewhere--would benefit from such an
outcome.
Before I conclude, Mr. Chairman, let me quote from the 2003 Hong
Kong Policy Act Report which reviewed trends as of April 1, 2003, well
before the most recent ferment in Hong Kong. Despite all the changes of
the past eleven months, what has not changed is our interest in Hong
Kong. in ``the protection of human rights and the promotion of
democratic institutions. Hong Kong residents share many values and
interests with Americans and have worked to make Hong Kong a model of
what can be achieved in a society based on rule of law and respect for
civil liberties.''
It is important to us and to those who respect and cherish
democracy around the world that Hong Kong remain an open and tolerant
society, one with a vibrant and evolving political culture. This
Administration will continue to communicate this view to the Hong Kong
Government, the central government authorities in Beijing and the
people of Hong Kong.
With that, Mr. Chairman, I would be delighted to take your
questions.
Senator Brownback. Thank you very much, Mr. Schriver. Thank
you for the strong position the administration has taken. What
the Secretary said 2 days ago in the meetings, what National
Security Advisor Condoleezza Rice said yesterday with Mr.
Martin Lee, the lead democracy advocates, the administration
has been very clear and very forthright and I appreciate your
strong position and statement on this.
I wanted to ask you a couple of questions on it.
Considering the ambiguity of many of the provisions in the
Basic Law, are you satisfied that the Basic Law provides Hong
Kong with the means to meet the democratic aspirations of its
people? In other words, is the basis there in the Basic Law to
move toward universal suffrage for the people of Hong Kong for
their leadership in Hong Kong, the Legislative Council, the
leadership just within Hong Kong?
Mr. Schriver. I think if the Basic Law is faithfully
implemented, the foundation is there. I think, because of the
ambiguity, the key is what are the aspirations and the
expectations of the people of Hong Kong and what is it that is
being delivered to them. If there is a gap there and a
significant gap, then we have to call into question if this is
a foundation that is strong enough to get the kind of political
progress that Hong Kong needs and deserves. So because of
ambiguity, I think that is the key measure, what are the
expectations and what is actually being delivered to them, and
clearly there are some signs that are troubling and some
statements that are troubling. But the very basic point, yes,
if faithfully implemented, I believe the foundation exists.
Senator Brownback. The administration's view is that they
can move toward universal suffrage and indeed the Basic Law
provides for a movement to universal suffrage for the people of
Hong Kong.
Mr. Schriver. Yes, sir.
Senator Brownback. A number of people are watching,
obviously, what takes place in Hong Kong. How is the rest of
Asia viewing the events in Hong Kong and its public
demonstrations for democracy? Do you get a feel from your
position as Deputy Assistant Secretary on East Asian and
Pacific Affairs of how this is being viewed throughout Asia?
Mr. Schriver. I have some sense of it, Mr. Chairman. I
think it is watched very carefully not only by those who have
developing democratic institutions themselves, but those that
have developing relationships with China, and they want to make
judgments about how China will behave, how China will be
responsive to democracies. I think throughout Asia the key
point that has impressed people is that the economic freedoms
have been sustained and Hong Kong as a trading partner for the
respective Asian countries has essentially been unimpeded since
reversion.
But again, I think the kinds of concerns that we have about
democratization is shared by other democracies in Asia and I
think virtually every country is watching China, how it
responds, if it will respond in a sophisticated manner,
perhaps, worst case, a heavy-handed manner. People will make
judgments about how China might behave in their own bilateral
relationships, even though this is an internal matter from a
Chinese perspective.
Senator Brownback. When I was in Hong Kong in January, a
number of statements and accusations were put forward by the
Beijing Government. They put linkages between the development
of the Hong Kong policy and their view and ties toward Taiwan.
Can you articulate the view of the administration of any
parallels or any connections between U.S. views toward Hong
Kong and a relationship with Taiwan with the move toward
democratization in Hong Kong?
Mr. Schriver. Well, our support for democracy is universal,
whether it be in Hong Kong, Taiwan, or anywhere else. We have
been very supportive of the democratization in Taiwan. We have
been supportive of that development. There is an election
coming up there that is of great interest to us, but we are
proud and we admire what they have done there.
I think China has a certain view about the relationship
between the development in Hong Kong and events on Taiwan
because, of course, they would tell you that the model of ``one
country, two systems'' was developed with Taiwan in mind prior
to the Hong Kong experience. So they have some incentive to
want that to succeed, to do well, so it will be an attractive
model to Taiwan.
I think they are two very different cases and how we manage
the policy is very different. The similarity being, we have
guidance from the Congress and we have policies that are
embedded in U.S. law, but the Hong Kong Policy Act and the kind
of relationship we are able to develop with Hong Kong I think
is very different than the kind of relationship we develop with
Taiwan.
Taiwan's democratization has essentially been rapid and
been successful, and though Beijing has certainly been
uncomfortable with it and has adopted a posture that is at
times threatening and coercive, for the most part Taiwan's
democratization has been unimpeded from Beijing's intimidation.
Again, there has been remarkable progress in less than a
decade. Their first Presidential election was less than 10
years ago. So this has been a rapid development and essentially
I think unimpeded from events in Beijing.
Senator Brownback. It has been my assertion on this issue
that it is good for Beijing, it is good for Hong Kong, and it
is good for the world if Hong Kong is allowed to develop on
democratization. It sends the right signals to Taiwan, not the
wrong signals. It will move toward more stability and attract
probably more investment and more support for Hong Kong. And
yet, the Beijing Government continues to fight this, even
though there is a clear march of history toward democracy as
well. I do not understand the reticence on the part of the
Beijing Government. Can you give that to me in light of your
discussions with them on this issue?
Mr. Schriver. It is always difficult to speak with great
clarity and specificity when you are trying to give the Chinese
perspective on something. I think they do have an interest in
Hong Kong succeeding and this model succeeding, but they also
value the political control and keeping firm rudder control on
developments.
I think one of the ironic things is there really is so much
that we could agree on with China on matters related to Hong
Kong. We want it to succeed. We think Hong Kong's success would
best be ensured through implementation of the Basic Law, which
China would say the same, and we do want stability and
continued prosperity in Hong Kong. Our very strong view is that
stability is best ensured through democratization. Maybe that
is where the divergence is, that they have a different comfort
level with democratization, the pace and the scope, and how
that could affect stability.
I would posit that you are more likely to get people out on
the streets again if people continue to feel frustrated that
their voice is not heard, that they do not have a government
that is responsive to them, and that there is not progress on
implementation of these articles related to universal suffrage.
If stability is the ultimate goal, which is not our only goal,
but if it is part of what you are seeking, we are very clearly
of the mind that democratization is key to that.
Senator Brownback. Well, thank you very much for your
position and your view, and thank you very much for the
administration's strong statement. I hope this continues to be
a very high priority item within the administration to press
universal suffrage for the people of Hong Kong.
Mr. Schriver. Thank you, Mr. Chairman.
Senator Brownback. Our second panel includes four guests
from Hong Kong. I would like to make it clear at this point
that we extended invitations to officials from Hong Kong
Progressive Alliance and the Democratic Alliance for the
Betterment of Hong Kong to testify this afternoon. Those
invitations were declined. We do have three members of the Hong
Kong Legislative Council, including Mr. Martin Lee, the founder
of Hong Kong's largest democratic party, Mr. James To, and Mr.
Cheuk-yan Lee. In addition, we have Mr. Yuk-Kai Law, Executive
Director of the Hong Kong Human Rights Monitor.
Because of the number of witnesses we have today, it will
be necessary for all witnesses to observe the time limits and
to summarize their statements, if possible. I would note to all
of you that your written testimony will be included in the
record, so you are free to summarize in your presentations.
I also want to say a thank you to all of you gentlemen for
being here today. I know you have suffered personal name-
calling and characterizing that is completely unfair. I regret
that you have had to go through that, and I also want to thank
you for being here and for putting clearly as well that if you
could go to Beijing, you would cancel your trip to Washington.
It seems odd to me that I can go to Beijing and you cannot. I
look forward to trying to understand a little better why that
dichotomy exists.
With that, I am delighted to have each of you here. Mr.
Martin Lee, we look forward to hearing your testimony first and
then we will hear the other panelists in the order I introduced
them.
STATEMENT OF MARTIN LEE, MEMBER, LEGISLATIVE COUNCIL, HONG KONG
Mr. Martin Lee. Thank you, Mr. Chairman, for giving us an
opportunity to come to your country and explain to you what is
actually happening in Hong Kong.
I will start with the history of democracy in Hong Kong. It
really only started in 1985 when the legislature had our first-
ever elected members. Now, but in that year there were not
democratically elected legislators. I was elected by the
lawyers, and I remember after the votes came in and I was
declared the winner, I held my first-ever press conference as a
politician, and I was asked this question. What would you like
to do now that you are in the Legislative Council? I said, very
simple. Next time, that is, 1988, I do not want to be elected
by the lawyers. I wanted to be elected by the people of Hong
Kong. That was my first democratic dream. It was dashed because
there were no democratic elections in 1988. It only came in
1991 after the Basic Law was promulgated on the 4th of April
1990. On that occasion I did run for the Hong Kong island and I
was elected.
Then we look forward, Mr. Chairman, and I have to come,
therefore, to the Basic Law because that is our mini-
constitution. It was passed exactly 10 months after the tragic
events of Tiananmen Square on the 4th of June 1989. But in
spite of that, the way forward was clearly set out in article
45 and article 68 of the Basic Law which prescribed very
clearly that the ultimate aim is to have the Chief Executive to
be elected by universal suffrage and likewise the entire
legislature. Then Annex I says we could actually have a Chief
Executive to be democratically elected in the year 2007 and the
entire legislature in 2008.
This is the ongoing debate in Hong Kong. Mr. Chairman, you
should have watched the wonderful demonstration on the 1st of
July last year. It was, I suggest, the most dignified
demonstration the world has ever seen. The people were angry
when they went to the demonstration, angry with the government,
but when they saw there were so many other people here, they
became very happy. I was there, Mr. Chairman, and I saw
happiness written on every face. It was a dignified
demonstration because people had to wait on an average of 3
hours, at least, before they could actually start the march,
but they were patient. There was not any angry word spoken.
The question now is what do we do now about democracy in
Hong Kong. The Beijing Government thought at first that if they
would give a lot of economic benefit to the Hong Kong
community, that would dampen the enthusiasm for democracy. But
it did not turn out that way.
On the 23rd of November last year at our District Council
elections, the pro-Beijing parties were crushed. We won with a
very, very large margin that we did not expect to be so.
Beijing became worried, extremely worried, that in the
forthcoming Legislative Council election on the 12th of
September this year the democratic camp will be able to muster
a majority in the Legislative Council.
Beijing has, therefore, ordered the Hong Kong Government to
stop everything. The Beijing Government does not even want the
Hong Kong Government to announce a time table as to when the
Hong Kong Government will consult with the people of Hong Kong
as to the way forward. The general perception, therefore, Mr.
Chairman, is that there is too much intervention from Beijing
in this very internal affair in Hong Kong. Namely, do the
people of Hong Kong want earlier democracy or later?
But this should not be. The Beijing leaders should have no
fear about the results of democracy in Hong Kong. Nobody in
Hong Kong wants independence for Hong Kong, unlike Taiwan, and
our party, the democratic party, has always supported the one
China policy. We strongly support the ``one country, two
systems'' policy enshrined in both the Joint Declaration and
the Basic Law.
There are varying signals in the recent weeks, but we are
confident of the long-term future because we have confidence in
the new leaders in Beijing, President Hu Jintao and Premier Wen
Jiabao. Both of them have traveled overseas recently and both
of them have spoken of their desire and ambition to bring about
democracy to China. It may not be the same sort of democracy
that you, Mr. Chairman, are used to, but it is a very useful
beginning. They are talking about respecting the will of the
people, and that I would submit is the beginning of democracy.
Hong Kong people have learned to trust these new leaders.
Recent public opinion polls show that Hong Kong people have
more confidence in the Beijing leaders than our own leader, Mr.
Tung Chee-hwa in Hong Kong, but because of the strong criticism
of the advocates for democracy in Hong Kong, the most recent
poll showed that the popularity ratings of our top Chinese
leaders have come down slightly.
I hope and I am confident that the trouble we are facing in
Hong Kong is short-term. I have confidence that the leaders,
when they finally understand what is really happening in Hong
Kong, will put their fears away so that they can also learn to
trust the Hong Kong people, because what we need is mutual
trust. We have learned to trust them. I hope they will soon
learn to trust us.
My vision, Mr. Chairman, is not only for my country to
remain a big country. I want to see it becoming a great nation
where the human rights of the 1.3 billion people in China will
be respected by those in government and will be protected by
the rule of law.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Martin Lee follows:]
Prepared Statement of Martin Lee
Mr. Chairman and Members of the Committee:
Thank you very much for this opportunity to discuss the history and
importance of the development of democracy in Hong Kong.
Being one of the elected representatives of Hong Kong and having
been engaged in the campaign for democracy for more than two decades, I
am morally obliged to explain to the international communities the
ongoing situation of Hong Kong, and the aspirations of our people for
democracy.
I am perplexed when I hear criticisms in Hong Kong about my loyalty
to my country. But I will never be inhibited about speaking. All along,
it is well known that I have supported the reunification of Hong Kong
and Taiwan with my country; I oppose the independence of Taiwan and
Tibet, and I have the vision that the success of ``One Country Two
Systems'' policy in Hong Kong would be conducive to our reunification
with Taiwan and beneficial to the modernization of China.
On December 19, 1984, the Sino-British Joint Declaration was
signed, setting out the terms of the resumption of sovereignty of Hong
Kong to China. In this important treaty, our Chinese government pledged
to the international communities and to Hong Kong people that our
freedoms and way of life would continue unchanged for 50 years.
Hong Kong people were also promised ``a legislature constituted by
elections'' and that all of our present day rights and freedoms would
continue. These solemn international guarantees were used to seek the
support of the international and Hong Kong communities.
Since then, the international communities have taken a natural
interest in the development of democracy and the preservation of basic
freedoms in Hong Kong.
I welcome this hearing as a continuation of our regular provision
of information about developments in Hong Kong's historic transition.
THE BENEFITS OF DEMOCRACY
Hong Kong people have had democratic elections for a minority
number of seats in the Legislature since 1991, and we have a free
press, an independent judiciary and a lively civil society.
In order to preserve these rights and win the support of the
international communities, both the Joint Declaration and the Basic
Law, Hong Kong's mini-constitution, envision a gradual process of
democratization with a full democracy as the defined ultimate goal. The
Basic Law would allow the election of our Chief Executive in 2007, and
of the entire Legislative Council in 2008 by universal suffrage,
subject to a change to the electoral rules according to certain defined
procedures. A constitutional reform in 2007 is called for in the Basic
Law.
The poor performance of the Tung Chee-hwa's administration has
reminded Hong Kong people that a democratic and an accountable system
as promised is essential for our future. They are now understandably
eager to see the promises fulfilled. Public opinion survey after survey
show that Hong Kong people want to participate directly in electing
their own leaders for both the legislative and executive branches.
The latest public opinion poll, conducted last month by the Chinese
University of Hong Kong showed that 68.7% of Hong Kong people want the
Chief Executive to be elected by universal suffrage in 2007 and 75.6%
agreed that the Legislative Council should be directly elected in 2008.
Another poll undertaken last December (10-14/12/03) by the University
of Hong Kong showed similar findings. And a recent survey commissioned
by Civic Exchange and conducted by the Hong Kong Transition Project
showed that 88% want constitutional reform, with 81% supporting direct
election of the Chief Executive.
In short, Hong Kong people want democracy.
FREEDOM MATTERS
Why does democracy matter to Hong Kong people?
Freedom and the rule of law are not just abstract theories to us.
Hong Kong people truly understand that a free society protected by the
rule of law will enable them to plan and lead their own way of lives
without arbitrary interference from the government, to become
prosperous by their own hard work and to provide good opportunities for
their future generations. It is what enabled Hong Kong to become the
eighth largest trading center in the world.
With this, Hong Kong has become and maintained itself as an open
and vibrant society where people peacefully and freely express their
political views individually and through their elected representatives.
PEACEFUL PROTESTS
On July 1 of last year, more than half a million Hong Kong people
took to the streets to protest against proposed national security
legislation, known as Article 23, and to demonstrate in favor of
democratic elections. The bill would have rolled back freedoms,
including those of the press, and undermined other basic liberties.
For ordinary citizens in Hong Kong, this near-passage of the
pernicious bill was the catalyst in recognizing that the freedoms we
have long taken for granted could not be protected over the long term
without democracy. On January 1 of this year, more than 100,000 people
marched to demand constitutional reform.
Our Chinese government has recently had a leadership change. And
our government's initial reaction to these peaceful marches by Hong
Kong people was quite measured.
Our leaders President Hu Jintao and Premier Wen Jiabao have
appeared willing to listen to Hong Kong people's concerns about the
local economy and taken steps to help revive it. The bill was
eventually withdrawn.
Presently, the governance of Tung's administration is in crisis. We
have now come to the time when implementing full democracy is essential
in continuing not only to ensure effective governance by the
Administration, but to maintain freedoms and the rule of law.
PATRIOTISM
In Hong Kong in recent weeks, there has been a wide public debate
about the meaning of ``patriotism.'' This debate was launched by the
re-publishing of comments made by China's late leader Deng Xiaoping,
that only ``patriots'' who ``love the motherland'' should be allowed to
hold government office.
Equating our demand for democracy to the quest for independence is
groundless. In fact, far from seeking for independence, Hong Kong
people want to see our country, China, become not just a large nation,
but a great one.
We believe we are truly patriotic because as we see it, democracy
is the only way to make ``One Country Two Systems'' work in the long
term and the success of ``One Country Two Systems'' is conducive to the
reunification of Taiwan, and beneficial to the modernization of our
nation.
CHINA'S NEW LEADERS
Our new leaders President Hu Jintao and Premier Wen Jiabao, have
won the admiration of many people in Hong Kong for the way they handled
the SARS crisis last year. In his recent visit to Hong Kong, Premier
Wen has gained a good impression from Hong Kong people by showing
himself to be a caring and responsive leader.
President Hu delivered a speech to the Australian Parliament last
year, saying that the government was increasingly involving the Chinese
people in decision-making and would take concrete steps to safeguard
the legitimate rights of the people.
President Hu said, ``Democracy is the common pursuit of mankind,
and all countries must earnestly protect the democratic rights of their
people.''
I couldn't agree more.
In addition to our leadership change in China, there are other
factors that should lead to a more open approach to democracy. China is
now a member of the World Trade Organization, an achievement I strongly
encouraged on previous visits to Washington.
Beijing is already preparing to host the Olympic Games in 2008.
China has signed the International Covenant on Civil and Political
Rights, and signed and recognized the International Covenant on
Economic, Social and Cultural Rights.
BUILDING TRUST
On a visit to the United States in 2002, our President Hu spoke to
the U.S.-China Business Council. He said:
China needs to deepen its understanding of the U.S., so does
the U.S. of China. Enhanced understanding and trust between the
two sides will help boost a healthy growth of bilateral
relations.
I think those were very wise words and good advice from our leader
about U.S.-China relations.
Although the relationship between Hong Kong and China is not a
country to country relationship but rather Hong Kong being an
inseparable part of China, I also believe that these words are
excellent advice for how our leaders in China should deal with the
people of Hong Kong. After nearly seven years of reunification, we hope
to embark on a path of mutual trust and cooperation with our new
Chinese leaders.
And we hope that our Chinese leaders will in turn honor their own
promise that ``Hong Kong people will rule Hong Kong'' in a meaningful
way--through democratic elections.
Senator Brownback. That is a beautiful thought and a great
statement. I appreciate that greatly.
Mr. James To is a member of the Legislative Council from
Hong Kong. Thank you very much as well for traveling to be here
with us. The floor is yours.
STATEMENT OF JAMES TO, MEMBER, LEGISLATIVE COUNCIL, HONG KONG
Mr. To. Mr. Chairman, actually I, together with Martin Lee,
are of the same political party, the democratic party, and we
share the same value, vision, and also the analysis of the
recent situation of Hong Kong and the projected development of
the democracy of Hong Kong.
I just want to briefly talk about the recent patriotism
controversy. Recently the pro-Beijing newspaper in Hong Kong
just attacked many of our pro-democracy colleagues in the
Legislative Council, and some pro-Beijing newspapers even named
several persons and divided it into so-called four categories
of non-patriotism persons.
The first is to topple the Chinese Government. They are
talking about a pro-democracy movement in China when, at the
same time, in Hong Kong they formed a group to support the
students in Beijing in 1989 and led millions of Hong Kong
people at the time to protest against the massacre in Beijing.
We love our country. So we want not just in Hong Kong, but
in mainland China, for our fellow citizens to enjoy the human
rights protection and the freedom that we can enjoy in Hong
Kong. As citizens of one country, the PRC, we have every right
to demand our country to advance, demand our country to respect
the rights of people, not just in Hong Kong but in the
mainland. So I feel that, as a truly patriotic person of the
country, we should have the right to advance the cause.
The second category of the named non-patriotic persons
includes those who have only uttered a phrase in respect for
the Taiwan people's wish of their future. I think on this I
would say in Hong Kong we have the freedom of speech, so any
person who just utters a thing in respect for other people's
wishes is within the freedom of speech area. Of course, I would
say many of the Hong Kong people would support the peaceful
unification of Taiwan, but I think that the serious attack on
any person in Hong Kong within that freedom of speech area
should not be the right thing.
And the third category is to go to the foreign place to
bad-mouth Hong Kong. On this category my response is very
simple. We would tell the whole world about the truth of Hong
Kong. Especially being a representative of the Hong Kong
people, I feel it is my duty to inform the whole world about
the truth of Hong Kong, the development of Hong Kong, and so
any attack or any allocation of bad-mouthing Hong Kong is
misconceived.
And finally, about the category of persons who oppose
article 23 legislation. I can recite to you, Mr. Chairman, that
in a motion debate that I sponsored in December 2002, I said a
true patriotic person should oppose the article 23 legislation.
Why did I say that? Because I feel that all along Hong Kong is
more advanced in human values, in international norms in
comparison with the mainland. And our country needs a place--
and Hong Kong is always the place--to have that kind of
experiment in the more advanced system. So any article 23
legislation which restricts freedom would undermine that kind
of process and experimental view or possibility. So I feel that
true patriots of our country should oppose any article 23
legislation which would restrict our freedom.
These are my remarks.
Senator Brownback. Thank you very much, Mr. To. I
appreciate that.
We have a third and final member of the Legislative Council
elected in Hong Kong, Mr. Cheuk-yan Lee. Thank you very much
for joining us today, and a pleasure to have you here. The
floor is yours.
STATEMENT OF CHEUK-YAN LEE, MEMBER, LEGISLATIVE COUNCIL, HONG
KONG
Mr. Lee. Thank you, Mr. Chairman, for the invitation. I am
the General Secretary of the Hong Kong Confederation of Trade
Unions, the independent and democratic trade union center in
Hong Kong, representing 170,000 workers.
For the CTU, my organization, we believe that democratic
rights are part of workers' rights. Over the years, I have been
struggling for workers' rights for almost 25 years now, and in
Hong Kong I feel very much frustrated with the fact that before
the handover and after reunification with China, the whole
political system is totally skewed toward the business
interests. Therefore, we have always from the workers' side
been suffering, because of a lack of democracy, from a lack of
workers' rights. We have no minimum wage, no working hours
limitations, no right to collective bargaining, and we have a
very wide disparity between the gap of the rich and poor. That
is the backdrop that we in the trade movement have been, over
the years, fighting for our democratic rights because we
believe that this is the only fair thing to do.
Mr. Chairman, we are now at a very important time in the
history of Hong Kong. First, after 6 years under the Chief
Executive, elected by a small minority of 800 people, people of
Hong Kong, now very clearly realize that this whole political
system does not work because the Chief Executive does not have
the mandate to rule, and therefore cannot really rally the
people's support especially facing economic hardship. And it is
very difficult for one without a mandate to steer Hong Kong
toward the future, and the people very much realize that now.
Second, the people of Hong Kong have shown their aspiration
with more than half a million marching against the national
security bill and, of course, also marching for universal
suffrage. So the people have already spoken, and their
aspiration should be respected.
But again, it is also a very important time in history
because we also see obstacles toward democracy in Hong Kong. A
very clear example is what James To has mentioned, the recent
debates on patriotism. We in Hong Kong want to discuss the
substance, the Road Map toward a democratic future, but the
Chinese Government, the central government, has said that they
want to discuss principles first, abstract principles like
patriotism. Therefore, after talking about principles, lots of
power brokers in Hong Kong, and the vast interest groups,
jumped into this opportunity to put forward attacks on the
democratic camps for being unpatriotic or not supporting ``one
country, two systems.''
I would say these attacks are tactics of delay, delaying
tactics of avoiding discussion on the real substance, and also
very counterproductive, as you can see when people are being
attacked for not being patriotic enough. The whole society is
divided. Again, this is not good for Hong Kong when the society
is being divided.
And the second obstacle toward democracy, regrettably I
would say, is because of the business community. Some of the
business community, instead of pressing forward for the
necessary political reform, also try to hinder Hong Kong's
democratization to preserve their vested interests. I always
say that they are having the political free lunch because they
do not even have to pay for campaign money. They just control.
They are part of the 800 and they can control the whole
government. Some of them are talking about democracy leading to
a welfare state and the economy will collapse.
Of course, these arguments are absurd because experience
will show that democracy and economic prosperity go hand in
hand. I would say what local business leaders fear is, in my
view, a level playing field in which all Hong Kong people are
given a voice in the territory's governance. To them ``all
animals are equal, but some animals are more equal than
others.''
Mr. Chairman, after talking about the obstacles, I still
think there are grounds for optimism.
First, the Chinese leadership has so far not said or done
anything irrevocable. In other words, there are still chances
for consensus in Hong Kong's political future development and
universal suffrage in 2007 and 2008.
And second, Mr. Hu Jintao, the President of the PRC, has
stressed recently that there was no socialism without
democracy, and he talked about the people should be allowed to
monitor the government, should be allowed to participate in
government, and he has also revealed that the International
Covenant on Civil and Political Rights would be put to the
National People's Congress for ratification.
So it seems that things are opening up. It seems that there
is a process of modernization. These are all good signs. It is
not natural for the Chinese leadership to experiment with Hong
Kong in the area of democracy. It already has freedom and it is
``one country, two systems.'' So is it not natural to go
forward for further democracy to show to the Chinese leadership
it is good for prosperity and stability? So we believe that
having Hong Kong move forward with full democracy is both good
for Hong Kong and also for our country and our compatriots in
China.
Mr. Chairman, I think more than half a million people of
Hong Kong have spoken and their voice should be respected and
their aspirations for a democratic future should be respected.
Thank you.
[The prepared statement of Mr. Cheuk-yan Lee follows:]
Prepared Statement of Cheuk-yan Lee
Mr. Chairman, thank you for inviting me to present my views to you
and the subcommittee on Hong Kong's democratic development. I am the
General Secretary of the Hong Kong Confederation of Trade Unions (the
CTU), an independent workers' organization dedicated to the promotion
of decent work, social justice and democracy. The CTU, comprised of 64
affiliated unions, represents more than 170,000 workers from all major
industries and occupations. I am also a directly elected member of the
Legislative Council (the LegCo) of the Hong Kong Special Administrative
Region (the HKSAR), the People's Republic of China (the PRC).
The CTU and I believe that political right is an integral part of
worker's rights, and political democracy is an indispensable condition
for workers' full enjoyment of the rights to decent work, as stipulated
in the International Covenant on Economic, Social and Cultural Rights
and various conventions of the International Labor Organization. It is
the reason why the CTU and I have played an active part in Hong Kong's
democratic movement since the 1980s.
It is indisputable that Hong Kong's political system was, and still
is, skewed toward business interests. Under British colonial rule, the
Governor was appointed in London, and members of his cabinet, the
Executive Council, were almost exclusively recruited from a handful of
big business. In the first 10 years after China's resumption of the
exercise of sovereignty over Hong Kong, the Chief Executive is
selected, under the Basic Law, the mini-constitution of the HKSAR, by
an Election Committee, in which the business sector have a
disproportionate representation in their favor.
The detrimental consequences of this unfair political arrangement
on workers' welfare are evident. There are no laws regulating workers'
working hours in Hong Kong. Nor are there any statutory provisions on
minimum wages protecting workers from excessive exploitation. Employees
are still being denied a voice at work, and labor unions are deprived
of the right to bargain collectively with the employers. Hong Kong has
one of the most uneven distributions of income in the world (Hong
Kong's Gini Coefficient, a common measure of income inequality, reached
its record hike at 0.525 in 2001), while business profit's share of
national incomes is among the highest in all advanced economies (45% of
GDP in Hong Kong cf. 30% in the United States).
It is well established that an undemocratic society, where societal
conflicts could not be resolved through proper political means, is less
able to weather the storms at times of difficulties. Hong Kong is no
exception. Economic recession in past few years has triggered a crisis
of legitimacy and governance. Successive opinion polls reveal that more
than 60% of respondents have no confidence in the Chief Executive, and
majority of Hong Kong people register their dissatisfaction with the
executive branch of the HKSAR Government as well as the legislature.
All available evidences lead to the conclusion that the existing
political system no longer works, and it is not conducive to rallying
people's support for steering Hong Kong forward. Failure to institute
reforms will, sooner or later, adversely affect Hong Kong's stability
and prosperity.
Local political scientists and commentators rightly point out that
the present impasse has largely stemmed from the flaws in the design of
Hong Kong's political system. At the heart of the problem is the lack
of popular support due to its weak political mandate. The only logical
solution is: electing both the Chief Executive and all members of the
LegCo by universal suffrage. An overwhelming proportion of Hong Kong
people subscribe to this view. A recent survey finds that more than two
thirds of respondents agree that the Chief Executive should be
popularly elected in 2007, while over three quarters of the population
support electing the entire legislature by universal suffrage in 2008.
Hong Kong people's call for electing the Chief Executive and all
members of the LegCo on a one-person-one-vote basis in 2007 and 2008
respectively is in line with relevant provisions of the Basic Law.
Articles 45 and 68 of the Basic Law stipulate that the methods for
selecting the Chief Executive and forming the LegCo shall be specified
in the light of the actual situation in the HKSAR and in accordance
with the principle of gradual and orderly progress. The ultimate aim,
as promulgated in the Basic Law, is the election of the Chief Executive
(upon nomination by a nominating committee) and all members of the
LegCo by universal suffrage. Given our level of economic development,
tradition of the rule of law, free flow of information, a vibrant civil
society and experiences in organizing territory-wide polling (the
actual situation), Hong Kong is well equipped for introducing a
universal suffrage system (gradual and orderly progress) in 2007 and
2008. And Hong Kong people are, undoubtedly, more than capable of
choosing their own leaders.
Mr. Chairman, I would like to stress that the Central Government of
the PRC has definitely a stake in Hong Kong's political development.
Annex I of the Basic Law stipulates that,
If there is a need to amend the method for selecting the
Chief Executives for the terms subsequent to the year 2007,
such amendments must be made with the endorsement of a two-
thirds majority of all the members of the Legislative Council
and the consent of the Chief Executive, and they shall be
reported to the Standing Committee of the National People's
Congress for approval (emphasis added).
Hong Kong people, including the ``democratic camp,'' are prepared to
engage in a rational and meaningful dialogue with the Central
Government, with a view to reaching a consensus on the method of
electing the Chief Executive.
I have to admit, however, that there are grave differences between
local community and the Central Government over the pace of Hong Kong's
democratization, and resolving these differences is no easy task. Our
community would like to have a discussion more focused on the concrete
road map tackling Hong Kong's existing political impasse while the
Central Government insisted on reaching consensus over some abstract
principles. In fact, no one in the HKSAR would object to the principles
relating to Hong Kong's democratic reform raised by the Chinese
leadership, including the patriotism proviso and support for the ``One
Country, Two Systems'' model, provided they are construed in strict
accordance with the Basic Law. But local power brokers and vested
interest groups are fast in exploiting the opportunity to launch
attacks on us, the democratic camps, putting forward accusations of
unpatriotic or not supporting ``One Country, Two Systems.'' Some even
go further to suggest that we are not qualified to stand for the coming
Legislative Council Election. This is both counter-productive and
obviously a delaying tactics of avoiding discussions on substance.
Regrettably, some business community, instead of pressing the
territory forward into the necessary political reforms, also tried to
hinder Hong Kong's democratization to preserve their vested interests.
The business sector argues that Hong Kong is not ready for democracy,
because local politicians do not understand business. One prominent
business leader even warned that democracy would turn Hong Kong into a
welfare state, causing the economy to collapse. Their arguments are
simply absurd. The claims that direct election would result in a
drastic increase in welfare outlays is empirically unfounded and a
total disregards of serious debates in election campaign. What local
business leaders fear is, in my view, a level playing field, in which
all Hong Kong people are given a voice in the territory's governance.
To them, ``all animals are equal, but some animals are more equal than
others.''(George Orwell's Animal Farms)
Mr. Chairman, despite the above obstacles, there are also reasons
for optimism. First, the Chinese leadership has so far not said or done
anything irrevocable. In other words, there are still chances for
reaching a consensus on Hong Kong's future political development, and
universal suffrage in 2007 and 2008 is still a viable option.
Second, Mr. Hu Jintao, President of the PRC, had stressed recently
that that there was no socialism without democracy. In his address to
the French National Assembly early this year, Mr. Hu also revealed that
the International Covenant on Civic and Political Rights would be put
to the National People's Congress for ratification once all conditions
were in place. It is evident that present Chinese leaders had committed
themselves in China's political modernization process. Hong Kong's
democratization should be foremost and very much part of this
modernization process. Experiences of introducing a universal suffrage
system in the HKSAR will interact valuably with the Mainland. This is
both good for Hong Kong and our country.
Mr. Chairman, more than half a million Hong Kong people took part
in the historic rally on July 1, 2003. They stood up and defended their
fundamental rights, in a most dignified manner. Hong Kong people
showed, once again, solemnly, to the Chinese leadership as well as the
international community, that they have a strong sense of
responsibility and they care about the territory they call home. The
people of Hong Kong have spoken and their aspiration for a democratic
future should be respected. The Central Government's response to the
demonstration has been rational and restrained. This is the best
indication of its determination to maintain stability and prosperity in
Hong Kong. Against these backdrops, I am confident that a blueprint for
Hong Kong's democratic reform, which is beneficial to both the HKSAR
and the mainland, could be worked out.
Thank you very much, and I would be happy to answer any questions.
Senator Brownback. Thank you.
Mr. Law, Human Rights Monitor Director in Hong Kong. I hope
I pronounced your name correctly.
Mr. Law. Yes.
Senator Brownback. Very good. Thank you very much for
joining us today.
STATEMENT OF YUK-KAI LAW, HUMAN RIGHTS MONITOR DIRECTOR, HONG
KONG
Mr. Law. Thank you, Mr. Chairman. Thank you for inviting
the Monitor to testify before you.
We have to set out firstly that the right to democracy has
been promised to Hong Kong when China signed the Sino-British
Joint Declaration. It says that the International Covenant on
Civil and Political Rights shall remain in force. Article 25 of
the International Covenant on Civil and Political Rights
provides for the right to be elected and to vote by universal
and equal suffrage. Unfortunately, both the British and the
Chinese authority have failed to conform with these
international standards.
In fact, the U.N. Human Rights treaty body, the Human
Rights Committee, has severely criticized Hong Kong. In 1995,
the Human Rights Committee criticized Hong Kong's electoral
system as it does not meet the requirements of article 25 that
is on universal and equal suffrage, as well as article 2 on
non-discrimination, article 3 on gender equality, and article
26 on equal protection of the law.
The committee particularly underscored the concept of
functional constituencies which give undue weight to the will
of the business and professionals, discriminates against most
voters on the basis of poverty and functions. This clearly
constitutes a violation of articles 2, 25, and 26. That is
exactly what it said in a U.N. hearing.
Unfortunately, after the handover, that is, reunification,
the elections in Hong Kong have a further reduction in the
franchise in the functional constituencies. It is a reduction
by 90 percent. Also, 2 million people who were voters were no
longer eligible to vote in this kind of so-called functional
constituencies, thus making these small-circle elections even
more repugnant.
In 1999, the U.N. Human Rights Committee again reaffirmed
their criticism. So the violation continues even under Chinese
rule. And the way to elect a Chief Executive is no better, as
our friends have pointed out. Only 800 people are eligible to
vote for the Chief Executive. This is grossly unfair.
Luckily the Hong Kong people know their rights and try to
claim their rights. Two major incidents have significantly
highlighted these kind of rights, highlighted the people's
demand for democracy. On July 1 last year, more than half a
million people took to the streets to express their demand for
power to the people. And several months ago, in the District
Council elections, they turned out in an unprecedented amount
and voted for a lot of pro-democracy candidates. And according
to polls, it is quite clear that the Hong Kong public is in
favor of early reform.
In December 2003, the public opinion program at the
University of Hong Kong showed that 73 percent and 78 percent
of the respondents support universal suffrage for electing the
Chief Executive in 2007 and for all the Legislative Councilors
in 2008, respectively. Even after the very serious attacks by
the Chinese authority recently, these figures remain high. They
are still respectively, 68.7 percent and 75.6 percent in spite
of these vicious attacks.
We have to highlight to the committee that the recent
developments by the political campaign to attack these pro-
democracy politicians and social activists and the pro-
democracy citizens in Hong Kong has flattened the freedoms of
Hong Kong.
Instead of responding to the call for democracy, the only
thing the government had promised is to release a time table by
the end of last year, and that is not realized because the
Chinese authority intervened. They asked the Hong Kong
authority to hold a bit. And now we do not see any clear steps
forward.
The Chinese authorities have clearly orchestrated a
political campaign against pro-democracy candidates,
politicians, activists, and others. What they want to do is to
terrify these people, is to intimidate the public so that they
would desist from their demands. The chilling and intolerant
atmosphere is totally inconsistent with the promise of
maintaining a free Hong Kong way of life, as guaranteed by the
Basic Law.
Some people have been singled out: Martin Lee has been
singled out for soliciting foreign invention on internal
matters of Hong Kong; Szeto Wah for being the chairperson of
the Hong Kong Alliance in Support of Patriotic Movement in
China. It is clear that China is now testing a hard-line policy
toward Hong Kong. The objective is to silence everybody.
Unless the Hong Kong people speak out at this moment, we
will face the very likely situation that such hard-line policy
will be affirmed and continue and undermine Hong Kong's human
rights and future autonomy and our democracy deficit will never
be properly addressed.
Mr. Chairman, thank you for your invitation.
[The prepared statement of Mr. Law follows:]
Prepared Statement of Yuk-kai Law
Mr. Chairman and distinguished members of the Senate Subcommittee
on East Asian and Pacific Affairs, thank you for inviting me to testify
on the status of Democracy in Hong Kong.
The Hong Kong Human Rights Monitor is the largest indigenous
membership-based human rights organization in Hong Kong. We aim to
promote better human rights protection in Hong Kong, both in terms of
law and practical daily life, and to encourage greater human rights
awareness.
Our submission will focus on two areas: (a) the demand for
democracy by Hong Kong people; and (b) the recent developments which
have threatened freedoms in Hong Kong.
DEMAND FOR DEMOCRACY
The International Covenant on Civil and Political Rights was
extended to Hong Kong in 1976 by the United Kingdom while Hong Kong was
under Britishrule. Article 25 of the Covenant provides,
Every citizen shall have the right and the opportunity, without
any of the distinctions mentioned in article 2 and without
unreasonable restrictions.
(a) To take part in the conduct of public affairs,
directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic
elections which shall be by universal and equal
suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the
electors;
(c) . . .
In extending the Covenant to Hong Kong, the United Kingdom has made
the following reservation:
The Government of the United Kingdom reserves the right not to
apply sub-paragraph (b) of Article 25 in so far it may require
the establishment of an elected Executive or Legislative
Council in Hong Kong . . .
The Sino-British Joint Declaration between China and the United
Kingdom provides that the Covenant ``as applied to Hong Kong'', i.e. as
qualified by any declared reservations such as the above, ``shall
remain in force'' in Hong Kong after 1997. The continue application of
the Covenant ``as applied to Hong Kong'' was repeated in Article 39 of
the Basic Law.
In the Letter of Notification of treaties applicable to Hong Kong
after 1 July 1997, deposited by the Government of the People's Republic
of China with the Secretary-General of the United Nations on 20 June
1997, China informed the United Nations that the Covenant ``will
continue to apply to the Hong Kong Special Administrative Region with
effect from 1 July 1997,'' although China was not yet a party to it at
that time. China signed the Covenant in 1998.
Unfortunately, both the British and Chinese Governments have failed
to ensure that the electoral system in Hong Kong conform with their
international obligations under the Covenant.
The United Nation Human Rights Committee, the treaty body
responsible for monitoring the implementation of the Covenant by treaty
parties, concluded in their concluding observations in 1995,
The Committee is aware of the reservation made by the United
Kingdom that article 25 does not require establishment of an
elected Executive or Legislative Council. It however takes the
view that once an elected Legislative Council is established,
its election must conform to article 25 of the Covenant. The
Committee considers that the electoral system in Hong Kong does
not meet the requirements of article 25, as well as articles 2
[on non-discrimination], 3 [on gender equality] and 26 [on
equal protection of the law] of the Covenant. It underscores .
. . the concept of functional constituencies, which gives undue
weight to the views of the business community, discriminates
among voters on the basis of property and functions. This
clearly constitutes a violation of articles 2, paragraph 1, 25
(b) and 26. It is also concerned that laws depriving convicted
persons of their voting rights for periods of up to 10 years
may be a disproportionate restriction of the rights protected
by article 25. . . .
The Committee recommends that immediate steps be taken to
ensure that the electoral system be put in conformity with
articles 21, 22 and 25 of the Covenant.
``Functional constituency elections'' are an unfair system whereby
business or professional groups elect a member or two of the
Legislative Council to represent their interests on a special
restricted franchise. Currently half of the 60 seats in the Legislative
Council are reserved for functional constituencies.
Unfortunately, the United Kingdom has done nothing to bring the
electoral system in line with the international standards laid down in
the Covenant in response to the UN criticisms.
Even worse, under Chinese rule, the Hong Kong SAR Government has
abandoned the reforms initiated by the last Governor of Hong Kong. As a
result, in the Legislative Council elections on 24 May 1998, the
franchise in functional constituency elections in Hong Kong has been
further reduced more than 90% by the Hong Kong SAR Government.
Approximately 2 million voters were deprived of their votes in the
functional constituencies, thus making these ``small circle elections''
even more unrepresentative.
In November 1999, after hearing a report on Hong Kong by the
Chinese Government, the UN Human Rights Committee again concluded,
The Committee reiterates its concern, expressed in paragraph
19 of its concluding observations, adopted at the end of the
consideration of the [previous] periodic report, that the
electoral system for the Legislative Council does not comply
with articles 2, paragraphs 1, 25 and 26 of the Covenant. . . .
The HKSAR . . . should take all necessary measures to
maintain and strengthen democratic representation of HKSAR
residents in public affairs.
In 2001 the UN Committee on Economic Social and Cultural Rights
also stressed in its concluding observations after considering the
report submitted by China on behalf of Hong Kong on the implementation
of the International Covenant on Economic Social and Cultural Rights
that the ``undemocratic features'' of the Legislative Council made it
difficult for the HKSAR to fully realize economic, social and cultural
rights.
It is clear that the current electoral system for returning the
Legislative Council continues to violate the Covenant. Most of the 800
persons who are given the power to elect the Chief Executive are
themselves returned by a system similar to functional constituencies.
Therefore the electoral system for returning the Chief Executive is in
no way better. These electoral systems all fall foul of international
standards and perpetuate the democracy deficit in Hong Kong.
Notwithstanding that there are provisions in the Basic Law which
continue to deny universal and equal suffrage to Hong Kong people, the
system continues to violate international standards.
HONG KONG PEOPLE'S DEMAND FOR DEMOCRACY
Two major events that took place in 2003 highlighted Hong Kong
people's desire for democracy: the July 1st demonstration and the
District Councils Election 2003.
On July 1, 2003, more than half a million Hong Kong people took to
the streets to protest against the national security legislation under
Article 23 of the Basic Law, the mini-constitution for Hong Kong, and
to demand for ``power to the people''. The way the Chief Executive and
his supporters in the Legislative Council have attempted to push
through the national security legislation has made a lot of Hong Kong
people realize that without democracy, existing rights can easily be
taken away by legislation. They have also been reminded that without
democracy, it is very difficult for the people to have the required
checks against abuses by the authorities in their enforcement of such
laws. It has become very common knowledge that protection of freedoms
and human rights requires democracy.
The repeated failures of the government in various livelihood
areas, including health, housing, employment and education have
indicated a lack of competency of the Hong Kong SAR Government and a
lack of ability for it to take public opinions and people's interests
seriously. These in turn have pointed to the fact that without
democratic elections, we cannot create a government sensitive enough to
the opinions and demands of the general public. Worst of all, people
have come to feel so hopeless that, without democracy, there is no way
to get rid of an incompetent and insensitive Chief Executive who to a
great extent has to be held responsible for failing to address their
livelihood issues thus far, as long as he maintains support from
Beijing. A lot of Hong Kong people have found that their livelihood
difficulties are closely related to the lack of democracy, or have
demanded democracy in order to remove leaders they do not consider fit
for such important political positions.
Hong Kong people came to realize that when the Government does not
listen to our demands, we are forced to take our destiny into our own
hands. As a result, they took to the streets to demand democratic
changes.
Another key event which has highlighted the strong demand for
democracy was the District Councils Elections on November 23, 2003.
Although the District Councils are more of an advisory body with very
limited political power, people still chose to use their voting powers
to support pro-democracy candidates. 1.07 million voters cast their
ballots in the Election, a turnout rate of 44%, both numbers the
highest in Hong Kong's history of district elections. Many of the pro-
Beijing candidates were voted out because of their political
affiliation to the pro-Beijing faction.
Opinion polls also showed a high demand for universal suffrage. In
December 2003, the Public Opinion Program at the University of Hong
Kong released survey results showing that 73% and 78% of the
respondents supported universal suffrage for the Chief Executive in
2007 and for all Legislative Councilors in 2008, respectively. Even
after a series of public opinions attacks from the Central Government
and pro-Beijing figures, the demand for universal suffrage remained
high. According to a more recent poll in February 2004 by the Hong Kong
Institute of Asia-Pacific Studies at the Chinese University of Hong
Kong, 68.7% and 75.6% of the respondents agreed or strongly agreed to
elect by universal suffrage the Chief Executive in 2007 and all of the
Legislative Councilors in 2008, respectively.
As a result, since the Re-unification with China, the demands for
universal and equal suffrage to elect the Chief Executive and all seats
of the Legislative Council in Hong Kong have never been as high as they
have recently been.
However, even before the Hong Kong people have had the chance to be
consulted, Beijing, through its followers and official media, have
closed off the possibility of universal suffrage in 2007/2008.
FREEDOMS IN HONG KONG THREATENED BY THE RECENT DEVELOPMENTS
After the two key events mentioned above, the Chinese authorities
seem to be very determined to tighten political control over Hong Kong
while assisting Hong Kong economically at the same time.
The Hong Kong SAR Government's plan to release a timetable for a
consultation on constitutional review by the end of 2003 has been
shelved after the Chinese Government approached the Chief Executive in
December 2003. Instead, a Constitutional Development Task Force was set
up by the Hong Kong authorities to clarify the concerns of Beijing.
The Chinese authorities have orchestrated a political campaign
against pro-democracy politicians and activists in Hong Kong who
opposed Article 23 legislation, criticized one-party dictatorship of
the Chinese Communist Party, expressing their views and demanding
universal and equal suffrage.
In particular, the Pro-Beijing media and figures have singled out a
number of pro-democracy Legislators, including Martin Lee, for
soliciting foreign ``intervention'' on internal matters of the HKSAR
Szeto Wah for being chairperson of the Hong Kong Alliance in Support of
Patriotic Democratic Movement, Margaret Ng for speaking out against the
legislation of Article 23; Emily Lau for supporting the wishes of the
people of Taiwan.
People have begun to compare the Hong Kong of today to China during
the time of the Cultural Revolution. This campaign has taken up the
theme of attacking political opposition to Beijing as being
``unpatriotic'' and characterizing it in the form of a ``political
movement''.
The Hong Kong Human Rights Monitor is concerned that the Chinese
authorities have started to change their policy towards Hong Kong. They
are now testing a hard line policy towards Hong Kong with the objective
of intimidating pro-democracy politicians, activists and ordinary
citizens, and of dampening the demand for democracy. The chilling and
intolerant atmosphere is totally inconsistent with the promise of
maintaining a free Hong Kong way of life. The freedoms of conscious,
political opinions, expression, assembly and association guaranteed
under the International Covenant on Civil and Political Rights are
under threat.
Unless Hong Kong people speak out against the hardline policy
currently being tested, such policy will be continued and undermine
Hong Kong's human rights and future autonomy. Our democracy deficit
will not be properly addressed.
Mr. Chairman, this concludes my formal testimony. Thank you.
Senator Brownback. Thank you very much, Mr. Law. Thank you
for your thoughts too. This is an excellent panel, quite
illuminating to me.
In the essence of time, because we have got a vote called
at 4 o'clock, I am going to truncate some of the questions that
I would ask here.
Mr. Lee, first, I appreciate all of you coming here and the
bravery with doing this, and I am sorry that you have had to
suffer the attacks that you have. One thing I have just not
understood--and maybe you can explain it to me--is why I can go
to Beijing and you cannot.
I have been to Beijing several times, most recently less
than a year and a half ago. It is a beautiful city, if you ever
get to go there. It is quite an impressive place, and I believe
it has grown substantially since the first time I was there in
1985.
But can you explain this to me? I do not understand this.
Mr. Martin Lee. Mr. Chairman, in 1985, I too went to
Beijing. It was all right. I was then a member of the drafting
committee of the Basic Law, and so I had to go to the China
mainland about a week every month.
Until the 4th of June, 1989, when I, with many others in
Hong Kong, strongly condemned the Tiananmen massacre, and since
then I was not allowed to go back. It is as simple as that.
Now, of course, recently the Chinese leaders and also Mr.
Tung, our Chief Executive, have asked the Hong Kong people to
forget about those terrible events on the 4th of June. Of
course, it is impossible to forget. But they have certainly not
forgotten. They have remembered and those of us who dared to
criticize Beijing will not be allowed back. I certainly cannot
see why this should be so. If I have committed any criminal
offense, I am quite prepared to be charged and prosecuted for
whatever offense I might have committed. But they are not
charging me with anything. They just do not allow me into
mainland China.
Senator Brownback. What is so striking to me about this is
you have got the discussion taking place on the interpretation
and the time table for the Basic Law. It seemed the three of
you, representing the majority of those who have voted in the
electorate, should be the people talking with the Beijing
Government. I do not know of a more credible voice that could
speak for the people of Hong Kong. And yet, they still refuse
to hear your voice.
Mr. Martin Lee. I think the leaders in Beijing are much
happier to listen to those who say the words that they like to
hear and not the words that we would speak if we were to go to
Beijing.
I have got to say, though, I think article 41 of the
Chinese Constitution gives the right to every Chinese citizen
to criticize his or her own government in Beijing. But for our
criticisms, we are now condemned to remain in Hong Kong. We
could go to Macao. We could go to Taiwan, but not to mainland
China.
Senator Brownback. I believe you even offered to cancel
your trip to Washington if they would let you go to Beijing. Is
that correct?
Mr. Martin Lee. And Beijing's representative in Hong Kong
said that I was dreaming.
And my response was the great Martin Luther King had one
dream. This Martin Lee has two dreams. The first dream is to
see democracy come to Hong Kong, and the second dream is to be
able to go back to my native land. I think it is a shame that
Hong Kong people are not allowed back to mainland China. I
think this shows one of the very many failings of our Chief
Executive. Even after 6\1/2\ years, he could not make sure that
Chinese citizens can go to mainland China.
Senator Brownback. This seems like a complete positive to
me to move toward universal suffrage in Hong Kong. It seems
positive to Hong Kong. And this is an outsider looking at it. I
admit that. It seems positive for the people of Hong Kong. It
seems positive to the people of China and the leadership in
Beijing. You are not asking to separate from China. You seek to
be a loyal citizens of China. It helps and is positive with the
relationship with the rest of the world. I do not understand.
Why is the Beijing Government fighting this and not willing to
talk to you about time tables or specifics but wanting to talk
about nebulous concepts like patriotism?
Mr. Martin Lee. I think probably, Mr. Chairman, the answer
lies in this, that when the Basic Law was finally promulgated,
the Chinese Government thought that they would take about 10
years to make sure that they could groom the pro-Beijing party,
the DAB, so that it could win elections. And this is why they
thought after 10 years of grooming this party, they could let
Hong Kong have democracy. That was the plan I believe.
But they have recently woke up to the idea that their
party, the party DAB, was not getting the support of the Hong
Kong people at all. And I believe many people in Beijing then
thought of moving the goal posts and postponing the arrival of
democracy to Hong Kong.
Now, I believe it is wrong. They should let things develop
naturally because, as I said, whoever forms a majority in the
Legislative Council after there are democratic elections in
Hong Kong, whichever party wins is not going to bring about
instability.
At the moment we have the most terrible and unworkable
political system in the world. We have a Chief Executive who
was actually chosen by Beijing through a Beijing-controlled
election committee. And all the senior officials were appointed
by Beijing, but at the sole suggestion and nomination of Mr.
Tung. So he is accountable to Beijing and they, that is, these
ministers, are accountable to him. And none of them is
accountable to the people of Hong Kong or to the legislature.
And that is why the thing does not work. Mr. Tung does not
have any party in the Legislative Council who is committed to
supporting him. Even the pro-Beijing party would abandon him if
they believe that it is too costly a price to pay for
supporting the government on any particular issue.
Now, we want to change the system. Let the Hong Kong people
decide as to who should govern, who should be the Chief
Executive, and who should be in the Legislative Council, and
together when both the Chief Executive and the legislators have
the mandate of the people, then you have a workable system.
But I entirely agree with you, Mr. Chairman. I think the
Beijing leaders should be persuaded that the only possible way
forward for Hong Kong is to bring about democracy. They have
nothing to fear. I can assure you, and I only hope that
somebody can assure the Beijing leaders that they have nothing
to fear.
Senator Brownback. Mr. To or Mr. Lee, do you have anything
to add to those statements?
Mr. Lee. Mr. Chairman, our fight for democracy in Hong Kong
is also a fight for democracy in China. That is my view because
I believe that if there is a Hong Kong democratically elected
government, it is a good demonstration for the whole China that
democracy does work. There will be freedom and it will be a
better China. I sincerely hope the Chinese leadership sees
things as we do, that it is good for China itself.
But I think the problem is, as you have observed, we have
no chance, no opportunity at all to speak to Chinese leaders
face to face to gain their trust, to gain a good communication
through face-to-face talks so that they know we are the real
patriots. They know that we are working for the good of Hong
Kong and the good of China.
And there are always these power brokers/middlemen who are
trying to smear the pro-democracy camp in Hong Kong, and I
think that explains why when we come here there are a lot of
names of names, attacks on us. So when the Chinese leadership
looks at all these things, they will gradually have a mistrust
of us, and I think that is the basic problem, that there are
always those who want to divide the people of Hong Kong and the
Chinese leadership, instead of bridging. So I think the power
brokers who are working for their own interests want to
maintain Hong Kong as it is without real democracy and they are
working toward that. I think they are an obstacle toward
democracy in Hong Kong and China.
Senator Brownback. I appreciate your thoughts about the
lack of democracy hurts workers and worker rights. I had not
fully thought through that because I am so used to a democracy
here and the expression of many people. But if we did not have
a democracy here, you would have fewer workers' rights because
you would have more control by those that are able to get into
the system rather than the people voting and politicians
putting forward policies that resonate with the people. So an
excellent point.
Mr. To.
Mr. To. Mr. Chairman, when the late Chinese leader, Mr.
Deng Xiaoping, invented the concept of ``one country, two
systems,'' he was thinking about solving the problem of Taiwan,
reunification of Taiwan. Now, you know Taiwan has a ``one
person, one vote'' to elect their leader. But in Hong Kong I
think the international community all along is thinking about
that except for foreign affairs and defense. Hong Kong people
ruling Hong Kong means a real thing that Hong Kong people
should choose their own leader of Hong Kong.
However, if Beijing is not determined enough to let the
Hong Kong people realize their wish under the Basic Law
permissible in 2007 and 2008 for full democracy, I think it
will not even undermine the demonstration effect of Hong Kong
to Taiwan, but the Taiwan people would feel that, well, it is
only several years after the resumption of exercise of
sovereignty of Hong Kong. China is doing something like that.
And how can the Taiwan people feel very good about the good
effect of ``one country, two systems''?
So I think I share the same feeling with the chairman in
your introductory remarks, that it is difficult to comprehend
that, why Beijing would not allow Hong Kong to have a full
democracy in order to really demonstrate the promise of ``one
country, two systems'' and Hong Kong people ruling Hong Kong.
Senator Brownback. Mr. Lee, let me get to the specifics on
this. Beijing is not willing to discuss when to go to universal
suffrage in Hong Kong at all, or do they say this is provided
for in the Basic Law, but we cannot do this by 2007, and yes,
we are going to go to universal suffrage, but we are going to
put the timeframe off? What is the specific status that they
have said toward universal suffrage?
Mr. Martin Lee. Well, the top leaders, that is Hu and Wen,
have not departed from the language of the Basic Law. So they
merely repeat the key words, which is development must be
gradual according to local conditions. But you can interpret
those phrases in whichever way you like.
However, there are a number of people from Beijing, as well
as in Hong Kong, the pro-Beijing people, who have put all sorts
of twisted meanings to those words and they interpret those
words to mean, therefore, if you go to a direct election in
2007 and 2008, then you are doing it by taking one step only.
They said whereas you should do it by a number of steps.
But even then they are wrong because we actually started in
the year 1997, and at that time the Chief Executive was
selected by a committee of 400 people. Then the second time was
2002. This time it was enlarged to 800 people. So you can say
there is already development. For the election of the
legislators too, there have been steps moving forward from 24
democratically elected members to 30, and then from 30, you
could actually move up to 60, or somewhere in between.
So the top Chinese leaders I believe have not actually come
to a decision on this important issue. They are still listening
to all sorts of people. They have sent people down to Hong Kong
to find out the general feelings in Hong Kong. I hope they can
come to a decision soon, and I hope the decision will not be
too far away from the clear wishes of the Hong Kong people as
was shown on the 1st of July demonstration last year. So I do
hope the Beijing leaders will finally see the wisdom of
allowing Hong Kong people to have democracy because, as you
said, the Hong Kong people want it and they deserve it.
If you look at the conditions of Hong Kong and you ask
yourself which country in the world had democracy with the
people they had and if you compare it with Hong Kong people
now, the civil society and the very dignified way of their
demonstration and the intelligence of the people of Hong Kong,
if you put them all together, and you say which people in the
world deserve democracy more than the people of Hong Kong.
Senator Brownback. They are ready and it is capable of
happening. Your party's position is universal suffrage, direct
elections, all eligible people entitled to vote by 2007. Is
that correct?
Mr. Martin Lee. Office of the Chief Executive, and by 2008
of all the legislators.
Senator Brownback. And there is no doubt in your mind but
that Hong Kong can achieve that, that the system can be put in
place as well.
Mr. Martin Lee. Absolutely no doubt. We are ready.
Senator Brownback. Thank you all very much for being here.
I deeply appreciate it. This is an issue of great concern here.
We have the third panel that I am going to call up, and I
am going to try to do this quickly, by 4 o'clock on the third
panel. Then I will adjourn at 4 o'clock.
The third panel is going to consist of Professor James
Feinerman, Professor of Asian Legal Studies at Georgetown
University Law School; Ms. Ellen Bork, Deputy Director of the
Project for a New American Century; and Mr. John Tkacik,
Research Fellow in China Policy at the Heritage Foundation.
If I could, with the three panelists coming up, I am going
to ask you to really truncate your comments so that we can
conclude at 4 o'clock. I believe there is a press conference
planned with the legislators at 4 o'clock just outside and we
will try to conduct that then and ahead of the vote.
Mr. Feinerman, thank you very much for joining us. As I
said, we are running about on 13 minutes. So if each of you
would please just take about 4 minutes for your comments. I
apologize for truncating you, but if you could comply with
that, I would be deeply appreciative.
STATEMENT OF JAMES V. FEINERMAN, ASSOCIATE DEAN, INTERNATIONAL
AND GRADUATE PROGRAMS, JAMES M. MORITA PROFESSOR OF ASIAN LEGAL
STUDIES, GEORGETOWN UNIVERSITY LAW CENTER
Mr. Feinerman. I will be very brief. Thank you, Mr.
Chairman and the subcommittee, for holding these hearings and
providing an opportunity for us to present our views about the
important things that are happening in Hong Kong and the
mainland right now.
I have already submitted an extensive written statement, so
I will just try and summarize.
Senator Brownback. Those will be put in the record for all
the panelists.
Mr. Feinerman. Of course, as you well know, the United
States has enacted a domestic law in the Hong Kong Policy Act
of 1992. You yourself were cosponsor of a joint resolution last
year, and Hong Kong and its future are a matter of great
interest to the U.S. Government and people.
In recent weeks we have seen also in Hong Kong that the
people have taken to the streets again to call for greater
democracy in the territory, and I think that there is reason
for us to share their concerns and hope that the central
government in Beijing will see the merit of the claims they are
making.
This, of course, follows on the half million people that
protested last July when the Chief Executive was attempting to
ram through the draconian security legislation in the face of
public opposition.
I would also note that I think that in many ways what is
being threatened on the part of Beijing really flies in the
face of both the letter and the spirit of both the Joint
Declaration and the Basic Law. The Joint Declaration is a
solemn international legal obligation between the People's
Republic and the Government of Great Britain, and the Basic Law
was drafted by the PRC side with the assistance of Hong Kong
people and I think also should be honored.
It is also ironic that in a time when just next week or the
following week the National People's Congress in China will
meet for its annual 2-week session and amend the constitution
of the People's Republic of China to include, for the first
time, the phrase, ``human rights,'' in the rights that are
respected and enshrined in the PRC constitution, that human
rights are in danger of being denied in their advancement in
Hong Kong. I think that given the fact that Hong Kong has long
enjoyed, even before the 1997 handover, through the
incorporation of British common law and elements of the English
constitution, many of the aspects of democracy and human
rights, that it would be a shame if those promises to continue
that same system in force for 50 years after the handover were
denied.
I would just mention two things that are discussed
extensively in my written testimony. The provisions that were
mentioned already by the Deputy Assistant Secretary with regard
to both article 45 and article 68 of the Basic Law that provide
for the direct election eventually without a specific time
table being spelled out for both the Chief Executive and the
legislature. Here again, I think there is room for some
disagreement, honest or otherwise, about whether any time table
was ever intended, whether there were expectations on both
sides about what the timing would be.
But it is important to note that the aim is clear in that
legislation, and the aim that is stated, with regard to the
legislature, is that the ultimate aim is the election of all
the members of the Legislative Council by universal suffrage. I
think there is no reason to delay or deny that right.
So, in conclusion, I would say that since the Basic Law
provides for the possibility of instituting direct popular
democracy as early as 2007 and because of where Hong Kong
stands today, it makes eminent good sense to look forward to
implementing these political arrangements as soon as possible,
that the intentions of the Sino-British Joint Declaration and
other attendant legal documents should be put in force.
Finally, I would just say, ironically, that although
Beijing often decries foreign interference in its internal
affairs and takes great umbrage whenever that happens, it seems
to be interfering right now in the internal affairs of Hong
Kong, and particularly the promise that it made at the time of
the handover that there would be a ``gang ren zhi gang,'' Hong
Kong administered by Hong Kong people. And I think that it
should follow its own preaching and get out of the way.
Thank you.
[The prepared statement of Mr. Feinerman follows:]
Prepared Statement of Prof. James V. Feinerman
Mr. Chairman and Members of the Subcommittee:
Thank you for holding these hearings and for providing an
opportunity for me to present my views and to share information
gathered on recent visits to the Hong Kong Special Administrative
Region (HKSAR) of the People's Republic of China (PRC) and in ongoing
work in the field of the rule of law in China. Given Hong Kong's
population, strategic position, and economic importance, it remains
necessary to focus upon a number of other significant considerations in
formulating United States policy towards the HKSAR. Of course, the
United States has enacted in domestic law the Hong Kong Policy Act of
1992,\1\ to indicate our continuing interest in economic and political
relations with the territory and in the well-being and prosperity of
its citizens. In addition to United States actions and responses to
moves taken by the PRC, recurrent questions surrounding the PRC's
intervention in the HKSAR's governance despite promises that Hong Kong
would enjoy at least fifty years of autonomy following its return to
PRC sovereignty remain difficult to answer.
---------------------------------------------------------------------------
\1\ United States-Hong Kong Policy Act of 1992, Public Law 102-383,
102nd Congress [S. 680]. (codified at 22 U.S.C. 5701 et seq.) Sec. 2,
para. 6, ``Findings and Declarations,'' states:
The human rights of the people of Hong Kong are of great
importance to the United States and are directly relevant
to United States interests in Hong Kong. A fully successful
transition in the exercise of sovereignty over Hong Kong
must safeguard human rights in and of themselves. Human
rights also serve as a basis for Hong Kong's continued
economic prosperity.
---------------------------------------------------------------------------
In recent weeks, thousands of Hong Kong residents have once again
taken to the streets to call for greater democracy in the territory.
Six years after the handover, the populace is calling for the semi-
autonomous Hong Kong government to speed up reforms that would grant
them more say in the choice of leaders and legislators. The first
series of protests last summer was triggered by the Hong Kong
government's attempts to pass a security law designed to prevent
subversion against the central government in Beijing--seen by many as
signal of an erosion of the freedoms the territory was promised under
Hong Kong's mini-constitution, the Basic Law. After an estimated half-
a-million people protested on July 1, Hong Kong's Chief Executive Tung
Chee-hwa backed down and delayed a vote on the controversial security
bill, originally scheduled for early July, 2003.
Introduction
An increasing cause for concern in the international community is
the Chinese government's antagonism towards the desire of the Hong Kong
people for the establishment of a modicum of the democratic political
process as expected under the terms of the Sino-British Joint
Declaration and Hong Kong's Basic Law by 2007. Hong Kong's future has
become even more problematic in the wake of the failed attempt to enact
draconian national security legislation pursuant to Article 23 of the
Basic Law by means of a truncated legislative process and the
sympathetic reaction of many Hong Kong residents to the goals of pro-
democracy forces. Harsh rhetoric from Beijing has been addressed to
those in Hong Kong who publicly voiced their support for dissident
elements, boding ill for the enjoyment of promised civil liberties.
This drama has been played out in Hong Kong before, so the
residents of Hong Kong are understandably worried. A protracted series
of negotiations lead to the adoption of the Basic Law, a ``mini-
constitution'' for post-1997 Hong Kong. Three successive drafts were
circulated, and public comment was invited. Strong public reaction to
the undemocratic nature of the government proposed for Hong Kong after
1997 in these drafts led to strident statements from both PRC and Hong
Kong representatives. Officials from China threatened to impose a
framework on Hong Kong unilaterally if its representatives persisted in
their ``intransigence.''
To allay fears in Hong Kong over the prospect that the United
Nations International Covenant on Civil and Political Rights, in force
in Hong Kong as a result of British colonial rule, would no longer
apply after the Chinese takeover, China agreed to its incorporation in
the territory. Although British attention to human rights in Hong Kong
had been rather limited, the threat of the removal of this basic
underpinning for civil liberties was nonetheless troubling. Adherence
to international human rights standards and the conventions enunciating
them since the handover of Hong Kong has been generally good, with a
few glaring exceptions which will be noted below.
The Legal Framework
On July 1, 1997, the United Kingdom relinquished sovereignty over
Hong Kong to the People's Republic of China according to an agreement
between those two nations reached in 1984.\2\ As an international
agreement between the two nations which have had the most direct
control over Hong Kong's fate, this document is the starting point for
any analysis of Hong Kong's post-1997 legal system. Yet, the Joint
Declaration itself merely anticipated the construction of a new
framework to implement the broadly-worded, precatory document that
established the process for the transfer of sovereignty.
---------------------------------------------------------------------------
\2\ Joint Declaration of the Government of the United Kingdom of
Great Britian and Northern Ireland and the Government of the People's
Republic of China on the Question of Hong Kong, Dec. 19, 1984, Gr.
Brit. T.S. No. 20, reprinted in 23 Int'l. Leg. Mats. 1366 (1984)
[hereafter ``Joint Declaration''].
---------------------------------------------------------------------------
On April 4, 1990, the Chinese National People's Congress in Beijing
passed a Basic Law for the Hong Kong Special Administrative Region,\3\
which came into effect in 1997; the President of the PRC subsequently
promulgated this law. Among other provisions, this Basic Law contains
guarantees of individual rights, leaving to future determination the
precise means for enforcement of these rights.
---------------------------------------------------------------------------
\3\ The Basic Law of the Hong Kong Special Administration Region of
the People's Republic of China, adopted on 4 April 1990 by the Seventh
National People's Congress of the People's Republic of China at its
Third Session. [hereafter ``Basic Law''].
---------------------------------------------------------------------------
Current Rights Situation in Hong Kong
Despite its status as one of the United Kingdom's last remaining
colonies (or ``Dependent Territories,'' in quaint British usage), Hong
Kong had come to enjoy considerable economic prosperity and rather
extensive civil and political liberties during the two decades
immediately preceding its return to Chinese sovereignty. The formal
instruments of government were controlled by the appointed Governor;
the nominal legislature, Hong Kong's Legislative Council, was hardly a
democratic body. Its 56 members were either personally selected by the
governor (20 non-official members) or elected by professional bodies
and district boards (26 non-official members). An additional ten
members were public servants, who served by virtue of their official
positions (10 official members). Yet, despite the undemocratic nature
of their selection, in the decade preceding 1997, the membership of the
Legislative Council had come to include (by appointment and election) a
reasonably large group of younger, outspoken members who voiced the
concerns of the Hong Kong citizenry. Moreover, the obvious concern of
the Hong Kong government for the wellbeing of its people--manifest in
its commitment to public housing projects, mass transit and other
infrastructural improvements and public health and social welfare--
convinced the populace of the benign intentions of their nonelected
overseers.
As a British colonial dependency, Hong Kong also enjoyed many of
the protections of the unwritten English constitution and common law as
well as the rule-of-law tradition. These were--to a great extent--
transplanted to Hong Kong and have taken root. The Hong Kong judiciary,
particularly at its higher levels, was scrupulously honest and
independent of (and resistant to) any executive or legislative
interference with its adjudication. Significant indigenization of the
judiciary and the legal profession has occurred over the past twenty-
five years; local Chinese professionals are well trained and already
largely in control of these institutions. Until 1992, final appeals
from the Hong Kong Court of Appeal were taken to the Privy Council in
London; since that time, in preparation for Hong Kong's return to
Chinese sovereignty in 1997, a new Final Court of Appeal was
established. The Chinese government, among other guarantees, promised
that Hong Kong could retain this legal system for at least 50 years
after China recovers sovereignty over Hong Kong.
Some Issues Arising from Hong Kong's Return to Chinese Sovereignty
As already noted, the United Kingdom and the People's Republic of
China concluded a Joint Declaration with three annexes in 1984 under
which Britain has agreed to restore Hong Kong to China on July 1, 1997.
Hong Kong then became, pursuant to Article 31 of the Chinese
constitution, a Special Administrative Region (SAR) of China and, in
the words of the Joint Declaration, was expected to ``enjoy a high
degree of autonomy, except in foreign and defense affairs, which are
the responsibility of the Central People's Government.'' Following the
ratification of the Joint Declaration in 1985, the National People's
Congress of China, through an appointed Basic Law Drafting Committee
(BLDC), undertook the writing of a Basic Law--in effect, a constitution
for post-1997 Hong Kong--which was (among other things) to insure Hong
Kong's autonomy: ``[T]he socialist system and socialist policies shall
not be practiced in Hong Kong, and . . . Hong Kong's previous
capitalist system and lifestyle shall remain unchanged for 50 years.''
In connection with the transfer of sovereignty, the British
government in Hong Kong attempted to establish a toehold for
representative government in Hong Kong before 1997 by aiming for the
direct election of at least ten members to the Legislative Council by
1991, with further increases before 1997. Members of the pre-1997
Legislative Council had proposed that at least 50 percent of the seats
there should be directly elected by 1997, with a mechanism put in place
to provide for 100 percent direct election by 2003. The last British
Governor of Hong Kong, Chris Patten, proposed speeding up this
timetable to provide more representative rule by 1995. China threatened
to ``react'' to any precipitous rush toward participatory democracy in
Hong Kong before 1997 as a hostile act. In crude, almost scatological,
language that echoed the denunciatory harangues of the worst days of
the Cultural Revolution, Patten, the British and any Hong Kong Chinese
who sided with them were vilified repeatedly and at great length. The
parallels with recent rhetoric emanating from Beijing is ominous.
Moreover, before 1997, in response the outpouring of popular
support in Hong Kong for the mainland pro-democracy demonstrators in
1989 and thereafter, thinly veiled threats against Hong Kong
individuals and groups issued from both the Chinese government and its
representatives in Hong Kong. China stated that it would not allow Hong
Kong to become a ``base for subversion'' against the People's Republic,
although it has never made clear what activities it would count as
subversive. Three successive drafts of the Basic Law were publicized,
with little attempt to answer substantive criticisms of earlier drafts
by responsible Hong Kong parties (and Hong Kong members of the BLDC).
Two members of the BLDC who were also current members of the
Legislative Council at that time, teachers' union leader Szeto Wah and
lawyer Martin Lee, were expelled from the BLDC and accused of
``counter-revolutionary activities'' for their involvement in protests
against the 1989 massacre in and around Tiananmen Square. A Bill of
Rights for Hong Kong, which was supposed to be published in January
1990 by the Hong Kong Government, was delayed because of mainland
pressure. When it was eventually adopted in June, 1991, the Chinese
authorities announced that it would not bind them after 1997 and that
they felt free to reject any or all of it after the resumption of
Chinese sovereignty. So much for guarantees that Hong Kong's pre-1997
legal system would continue in force!
A Brief History of PRC Interference in Hong Kong Governance
Almost immediately after the establishment of the People's Republic
of China on the mainland in 1949, the Chinese government began a
program of infiltration and sought to wield influence over the affairs
of the British colony which remained in Hong Kong. Once it became clear
that the British were not leaving Hong Kong, China reached a modus
vivendi with the British colonial government which permitted China,
isolated from much of the world after the Korean War, to use Hong Kong
as a kind of entrepot for contact with the non-socialist world. Much of
China's foreign exchange was earned through Chinese-controlled
enterprises based in Hong Kong and from direct sales to Hong Kong of
basic commodities. Surplus population and individual malcontents were
allowed to flee across China's border with Hong Kong; eventually,
almost two million refugees entered Hong Kong from 1949 until the late
1960s. Whatever hopes China might have had that such an influx would
destabilize Hong Kong and encourage the British to leave were dashed by
Hong Kong's resilience; resources were mobilized to house and maintain
at a subsistence level the colony's swelling population.
At the end of the 1960s, China's ``Great Proletarian Cultural
Revolution'' washed over into Hong Kong briefly, as political radicals
sought to achieve--in line with then-current political thinking on the
mainland--the immediate revolutionary transformation of Hong Kong and
the expulsion of the colonial power. Militant trade unionists and other
pro-mainland activists tried their best to turn the populace against
the British, but to no avail. After a brief period of disorder, the
government firmly re-established its control. Successive temporary
waves of immigrants from the mainland recurred, but they were easily
absorbed by Hong Kong's growing economy.
By the early 1980s, attention began to focus on the 1997 deadline
for return of the leased New Territories (which account for over 90
percent of Hong Kong's total land area) to China under the terms of an
1898 treaty. China made it clear that it would not countenance any
continuation of British control and that it intended to resume
sovereignty. As a practical matter, the rest of Hong Kong would have to
revert along with the New Territories. Initial resistance to China's
stance, contemplated by then-British Prime Minister Thatcher (flush
from her victory in the Falklands), was later prudently abandoned in
the face of Chinese resolve. A handful of senior Hong Kong Chinese
officials were promised full British passports and residency in
Britain, but only a pitiful number availed themselves of the offer. On
the other hand, the basic human rights of the rest of Hong Kong's
people were left to the determination of the same Chinese leaders who
ordered the People's Liberation Army to fire on students in Tiananmen
Square. From an international human rights perspective, this was
clearly unacceptable; however, the international community, which at
that same time was scarcely bestir itself to worry about Bosnia and
Somalia in the throes of all-out war, proved unable to focus upon a
possible crisis in Hong Kong years before its return to the mainland.
Reasons for the Current Concern Over Democracy in Hong Kong
Hong Kong's Basic Law, often described as a ``mini-constitution,''
which was agreed by both sides before the handover, allows the
possibility of direct elections for the Chief Executive and all of its
Legislative Council from 2007. But it also says Beijing must approve
any electoral changes, which means China has the final say. China's
Communist Party clearly fears growing demands for full democracy could
threaten its control over the territory and possibly spread to mainland
China. Some mainland officials have said they doubt Hong Kong's
patriotism after a massive protest against the local Bejing-backed
government last year. The march drew half a million people into the
streets to denounce attempts by Hong Kong leader Tung Chee-hwa to push
through an unpopular anti-subversion bill. As the Chairman well knows,
having co-sponsored a Joint Resolution in the Senate last summer
expressing support for democracy in Hong Kong, both the legislative and
executive branches of the United States government have expressed
serious concerns about compliance with, and implementation of, the
Joint Declaration and the Basic Law in the light of these
experiences.\4\
---------------------------------------------------------------------------
\4\ S.J. Res. 14, ``Expressing support for freedom in Hong Kong,''
In the Senate of the United States, 108th Congress, 1st Session, June
27, 2003.
---------------------------------------------------------------------------
Notwithstanding these wide-ranging differences, there remains a
great deal of common interest between the United States and the PRC in
the resolution of other numerous issues which may make the PRC heed
expressions of concern over the smooth transition in Hong Kong in the
runup to 2007. On the regional level, continuing peace and prosperity
in East and Southeast Asia and even free access to the high seas to the
east and south of the PRC will require China to maintain stability,
balance and positive engagement with the international community.
Below, I attempt to examine just a few problem areas with regard to
pace of democratization in Hong Kong, and the legal underpinnings of
the claims made by both pro-democracy forces and representatives of the
PRC insofar as the gradual introduction of self-governance was promised
to Hong Kong, to evaluate their current status and to weigh various
options for possible progress.
THE LEGAL AND POLICY BASES FOR DEMOCRATIZATION IN HONG KONG AFTER 1997
Under the Sino-British Joint Declaration of 1984, Hong Kong
returned to Chinese rule in 1997 with the understanding it would
maintain limited self-government and be allowed to enjoy its capitalist
way of life at least until 2047. The current Chief Executive, C.H.
Tung, was installed for five years, and again in 2002 for a second
term, after being selected by a pro-Beijing electoral committee. Hong
Kong's local laws are passed by a 60-member Legislative Council, but
only 24 of its members are directly elected by Hong Kong voters. The
rest are selected by an electoral committee or by groups called
``functional constituencies,'' representing a small segment of the
total population of seven million. Ironically, the same Basic Law that
required the government to enact the security legislation which proved
so broadly unpopular last summer also calls for it to pursue greater
democracy by 2007. Yet Tung's attempts to push ahead with the security
laws, while not moving on the democratization, has left many in the
territory frustrated and suspicious.
Rev. Louis Ha, a Roman Catholic priest, has said that the aim of
the protests has been to promote the drive for universal suffrage, as
well as to educate people about democracy, and encourage democratic
values such as tolerance and respect in peoples' everyday lives. The
Catholic bishop of Hong Kong, head of Hong Kong's 230,000 Catholics,
has also appealed to the government to listen to the voices of the
people. ``Hong Kong people have the quality and ability to rule
ourselves,'' he has been quoted as saying. ``Give us a chance to show
the whole world that we will do well on our own.'' \5\
---------------------------------------------------------------------------
\5\ Fr. Ha is editor of the Catholic periodical, Kung Kao Po, as
well as a member of the Democratic Development Network (DDN) that
formed last summer in Hong Kong. See
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RECENT DEVELOPMENTS AFFECTING PROSPECTS FOR HONG KONG'S DEMOCRATIZATION
Communist China welcomed back Hong Kong in 1997 under its ``one
country, two systems'' policy, whereby Hong Kong people could still
enjoy a bustling free press, freedom of speech and religion, and rule
of law. It promised a fair degree of autonomy, and with Britain drafted
Hong Kong's the basic law. But when it comes to the ``one country, two
systems'' policy under which Britain handed Hong Kong over in 1997,
there's a wide gulf between the aspirations of the majority in Hong
Kong and China's authoritarian rulers. What's happening now in China is
about the next steps toward democratization in Hong Kong in 2007.
Democracy is being debated. What's being talked about is the right of
Hong Kong citizens in 2007 to elect a Chief Executive, like an American
state governor, of their own choice.
Hong Kong is not a full democracy. Under a complex system carried
over from British colonial days, only some politicians are freely
elected, while trade groups and China also have their say. People do
not directly elect the Chief Executive. But over the past year,
hundreds of thousands of Hong Kong citizens have expressed their desire
for greater democracy. As many as 100,000 people took to the streets on
New Year's day, and 500,000 did so on July 1st last year. Under
pressure, Chief Executive Tung Chee-hwa, last year promised to draw up
plans for a consultation process on the possible introduction of direct
elections in 2007. Pursuant to the Basic Law, 2007 is the earliest
chance for constitutional reform and movement towards the ultimate goal
of direct elections. The Basic Law provides that after 2007 major
changes to the constitutional framework in Hong Kong may take place,
the ultimate aim of these changes being the election of the Chief
Executive and the Legislative Council by direct election.
Last month, a Hong Kong task force finished three rounds of talks
with leaders in Beijing on the future of democracy in the territory.
Hong Kong's Chief Secretary for Administration Donald Tsang and his
team completed the talks after their meeting with the Chinese
parliament, the National People's Congress, to seek their advice on
holding full elections in Hong Kong by 2007. The Chief Secretary said
of his mission, ``The most important thing of the trip is to give us an
opportunity to express the public opinion. I think we have reached that
target,'' he told reporters, calling the result of the meeting
``satisfactory.'' Tsang said Beijing wants thorough discussions on
principles before Hong Kong proceeds with its constitutional
development and a web page would be established to seek further public
opinion on the issues. Chinese leaders have appeared non-committal on
the issue, questioning only whether Hong Kong actually wanted universal
suffrage.
The task force was created by Hong Kong Chief Executive Tung Chee-
hwa early this year, following the street protests last summer calling
for a speedier transition to universal suffrage in the territory.
Reportedly, China will not allow Hong Kong to choose its next
leader through full elections, according to a local press report that
quoted unnamed sources close to the Beijing leadership. Also a
consultation exercise to seek the public's view on increased democracy
in the city was just a ``show'' intended to placate the pro-democracy
camp, the South China Morning Post (SCMP) has reported. The source told
the SCMP that Beijing would draw up its own plan to guide what form the
next selection process for the city's chief executive would take in
2007.
A three-day trip to Beijing last month by a task force charged with
seeking the Chinese leadership's opinion on the issue ended in near
farce when China's top leaders snubbed the delegation. Beijing later
poured cold water on democracy hopes, saying it would have the final
say in how Hong Kong chooses its next leader and that ``patriots''
would rule the territory. That sparked hot debate on what defined a
patriot and whether China would consider anti-government campaigners
patriotic enough to allow them to stand in any election. Beijing is
also expected to take a tougher position on Hong Kong if pro-democracy
forces become the dominant power in the territory's top law-making body
in elections in September and then work against China-backed leaders,
according to unidentified sources. In 1997, Beijing established a
provisional legislature and effectively dismantled electoral changes
made by Britain in the waning years of colonial rule.
Post-2007 Political Reform and Democratization in Hong Kong.
Hong Kong's constitutional journey has been unique. Most former
colonies were released from their imperial power decades ago; Hong Kong
was almost the last major territory to achieve such status.
Furthermore, these former colonies became independent and replaced
their former colonial administration with the institutions of
democratic government. Hong Kong was absorbed by another sovereign
power, and preserved its former administration almost unchanged. In
Hong Kong's case, in fact, a virtue was made of continuity with the
colonial era. Many civil servants simply carried over.
Then, why does Hong Kong need reform? Hong Kong has an established
system of rights and operates by the rule of law. It enjoys a high
standard of living and--aside from the recent recession--consistently
high levels of economic growth. Although many people express discontent
with the Government, there are no signs of mass unrest. And the PRC, as
sovereign, would have to be persuaded of the benefits of any reform. Is
it worth expending energy on the constitutional reform project? Some
have suggested that the current system might continue for several more
decades, with full suffrage and direct elections coming at the end of
the fifty-year period, say in 2037, rather than ``as early as'' 2007.
Hong Kong's governance today is essentially that of a colonial
administration, a form more appropriate to the nineteenth than to the
twenty-first century. The relatively favorable outcome of this
governance to date--at least in terms of living standards and rights--
should be regarded as exceptional. Particularly in the light of the few
spectacular glaring failures of the Tung administration, it is
definitely not something that can be relied upon for the long term.
Also, under British rule there were certain checks and balances on Hong
Kong's colonial governance system, such as accountability to the
democratically-elected British Parliament. In that position today is
China's National People's Congress, a far different institution. It is
not clear that in Hong Kong's present situation the continued enjoyment
of human rights, the rule of law, and ultimately of living standards,
can be assured.
By its own terms the constitution mandated by the Basic Law should
begin to change--with a gradual expansion of directly elected seats in
the legislature and a progression, albeit without a definite timetable,
towards full democracy. As Hong Kong approaches the ten-year
anniversary of its handover, it is only common sense to plan for these
changes. Secondly, Hong Kong's governance structure increasingly seems
inherently unstable: a legislature enjoying an gradually growing
mandate from the people but little power, facing an executive selected
by a narrowly-based committee which wields very considerable power. It
is highly unlikely that such a situation can accommodate the changes
that lie ahead. Finally, recent experience with the HKSAR's response to
SARS and the Article 23 legislation reveals how far Hong Kong needs to
reform over the long term.
The Chief Executive
Hong Kong's executive model is that of a colonial administration,
similar to the former administrations of Britain's other ex-colonies.
The civil service wields both substantial power of policy-making and
power to administer policies. The Chief Executive is selected by an
Election Committee which is in turn selected by the Mainland Chinese
authorities or under their auspices--the latter process being conducted
in secrecy. With the departure of British administrators, many Hong
Kong residents believe that the executive tends to represent the
interests of local business elite. At the same time, the
democratically-elected portion of the legislature appear to represent
the ``have-nots,'' pressing for social-welfare policies such as a
minimum wage, more public housing, lower government charges and fees.
This tends to polarize policy debates in the HKSAR.
As provided in the Basic Law, the Chief Executive is expected to be
chosen by direct election eventually, even though the initial selection
process provides for the narrower and less democratic committee-
selection process. Article 45 spells out the details:
Article 45
The Chief Executive of the Hong Kong Special Administrative
Region shall be selected by election or through consultations
held locally and be appointed by the Central People's
Government.
The method for selecting the Chief Executive shall be
specified in the light of the actual situation in the Hong Kong
Special Administrative Region and in accordance with the
principle of gradual and orderly progress. The ultimate aim is
the selection of the Chief Executive by universal suffrage upon
nomination by a broadly representative nominating committee in
accordance with democratic procedures.
The specific method for selecting the Chief Executive is
prescribed in Annex I: ``Method for the Selection of the Chief
Executive of the Hong Kong Special Administrative Region.'' \6\
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\6\ The text of Annex I is appended at the end of this testimony.
Moreover, the Basic Law envisages an executive accountable to the
legislature (Article 64).
The Legislature
The Basic Law sets out a program for increasing the proportion of
legislators elected by direct election. This was meant to increase the
popular mandate and legitimacy of the legislature. Increasing power for
the Hong Kong Legislative Council, or Legco, might follow the
trajectory of the European Parliament, which when established had
little power, but gradually took more power. Also, being directly
elected, the European Parliament enjoyed greater legitimacy than the
other European governmental institutions, parallel to the experience in
Hong Kong.
The majority of Legco's members are not directly elected and tend
to side with the government. Legco's voting procedures also handicap
its effective performance. The Hong Kong Legco also has almost as many
committees as a large developed country parliament like the UK, but
only one-tenth as many legislators. In the 2000 Legco, 30 seats are
from Functional Constituencies (professional groups, business and other
sectors) and 10 are selected by an Election Committee. In countries
with bicameral legislatures, frequently members of one chamber are
selected other than by geographical direct election. For example, the
House of Lords in Britain includes not only hereditary and appointed
Lords but also bishops. The United States Constitution provides every
State with two Senators, while member of the House of Representatives
are elected proportionally to population. Yet, in most countries, these
second chambers are with another chamber which is fully directly-
elected. Hong Kong's Functional Constituency and Election Committee
elections to the legislature are almost unique.
The Election Committee will not be used again. But by 2007, unless
there is some change, the 30 Functional Constituency seats will
continue to exist. This functional constituency system is highly
anomalous. In 1998--among other shortcomings--10 out of 28 functional
constituencies were unopposed, while many others were returned by a
``small circle'' of individual voters or by companies under common
control. Three ways have been suggested to address the issue of Hong
Kong's functional constituencies: abolition (arguing that they are
anachronistic and should simply be abolished); reform (to make them
more democratic and representative of the people); or dilution (to
reduce their influence by creating more directly elected seats). Any of
these solutions would be preferable to maintenance of the status quo.
Here again, the Basic Law contemplates eventual movement towards
fully representative government. Article 68 makes clear its ``ultimate
aim'':
Article 68
The Legislative Council of the Hong Kong Special
Administrative Region shall be constituted by election.
The method for forming the Legislative Council shall be
specified in the light of the actual situation in the Hong Kong
Special Administrative Region and in accordance with the
principle of gradual and orderly progress. The ultimate aim is
the election of all the members of the Legislative Council by
universal suffrage.
The specific method for forming the Legislative Council and
its procedures for voting on bills and motions are prescribed
in Annex II: ``Method for the Formation of the Legislative
Council of the Hong Kong Special Administrative Region and Its
Voting Procedures.'' \7\
---------------------------------------------------------------------------
\7\ The full text of Annex II is appended at the end of this
testimony.
---------------------------------------------------------------------------
The Judiciary
As the post-1997 experience has made painfully clear, the
independence of the judiciary cannot be relied upon when the power of
the Executive is as pervasive as it is in Hong Kong. It is ultimately
unreasonable, in the absence of other strong institutions of
government, to expect individual judges to resist the executive. The
independence of the judiciary needs to be buttressed by strengthening
other institutions such as the legislature.
Most notoriously, the judiciary's independence was circumscribed
after 1997 by the outcome of the Ng Ka Ling case, which arose out of a
challenge to a local Hong Kong immigration statute severely inhibiting
right of abode in Hong Kong (guaranteed in the Basic Law) for children
born to parents resident in Hong Kong.\8\ Exercising its power of
constitutional judicial review to overturn several provisions which
derogated that right, the Court declared it would take a purposeful and
generous approach to interpreting constitutional rights guaranteed in
the Basic Law. In its judgment, the Court also explicitly declared that
in deciding such disputes the Court of Final Appeal (CFA) would have to
determine when to refer provisions respecting local-central relations
or matters of central authority to the Standing Committee of the
NPC.\9\ The court concluded it was not required in this case.
---------------------------------------------------------------------------
\8\ Article 24 of the Basic Law (the first Article in the chapter
entitled ``Chapter III: Fundamental Rights and Duties of the
Residents'') provides that Hong Kong residents include ``persons of
Chinese nationality born outside of Hong Kong'' of Hong Kong residents.
Under the Article, such residents are entitled, as are other Hong Kong
residents, to the right of abode and a permanent identity card. Suit
was initiated by several children who claimed that their basic right of
residence was effectively denied under a newly enacted immigration
ordinance which required them to apply on the mainland for an exit
permit.
\9\ Basic Law, art. 158.
---------------------------------------------------------------------------
The HKSAR government, at Chief Executive Tung's direction, filed a
motion for the CFA to ``clarify'' its judgment declaring its power to
examine acts of the NPC. In a second brief judgment, the Court
explicitly stated that it did not hold itself above the NPC,
essentially restating its original position.\10\
---------------------------------------------------------------------------
\10\ Ng Ka Ling v. Director of Immigration, Court of Final Appeal,
Final Appeal No. 14 of 1998 (Feb. 26, 1999).
---------------------------------------------------------------------------
A more serious attack on the judgment and the rule of law occurred
in May 1999 when the government, after issuing a report claiming the
judgment would produce a flood of 1.67 million migrants into Hong Kong,
made a request to the Standing Committee of the NPC to interpret the
relevant provisions of the Basic Law, effectively seeking to overturn
the CFA judgment.\11\ As a result of this end-run around the CFA, the
finality of judgments of the CFA in Hong Kong has clearly been called
into question and the rule of law has been put in doubt. Full
confidence in the rule of law requires both respect for the authority
of the CFA and confidence in its genuine ability to render final
judgments.
---------------------------------------------------------------------------
\11\ The government's decision to undermine a Final Court Judgment
has produced strong condemnation from the Democratic camp, the Bar and
leading constitutional scholars. Michael C. Davis, ``Home to Roost,''
South China Morning Post, May 16, 1999, at 10.
---------------------------------------------------------------------------
A Note on Human Rights
These are enshrined in the Basic Law and in statute, and protected
by the courts. However, Article 23 of the Basic Law on subversion--
which occasioned such controversy last summer when attempts were made
to push through legislation implementing it--and other provisions such
as those enabling the Chinese Central Government to intervene in Hong
Kong's affairs (Article 18) and to interpret the Basic Law (Article
158), the superior privileges of ``Chinese citizens'', set limits on
the enjoyment of human rights. In practice, the non-democratic nature
of government and the power of the executive pose further dangers.
Also, with regard to the media, there are important issues of
newspapers' self-censorship and censorship by newspaper owners which
affect the actual enjoyment of freedoms guaranteed by the Basic Law and
international human rights agreements.
Conclusion
The Basic Law of Hong Kong provides for the possibility of
instituting full direct popular democracy in 2007. Hong Kong is,
therefore, at a stage where it makes eminent good sense to look
forward, to ask what type of political arrangements should be made for
the next steps in its democratic development, and to begin planning.
For Hong Kong, the issue is not whether to have or not have democracy
or constitutionalism; these institutional commitments are provided in
an international agreement, the Sino-British Joint Declaration.
Furthermore, Hong Kong's own popular commitment to democracy, human
rights and the rule of law favors liberal constitutional democracy.\12\
Fundamental to Hong Kong's economic future is the widely acknowledged
fact that human rights and the rule of law give economic actors more
confidence in the system. Moreover, democratic countries are better
able to respond to crises such as the late-1990s' East Asian economic
crisis and the more recent SARS.
---------------------------------------------------------------------------
\12\ Michael C. Davis, ``Constitutional Theory and Hong Kong
Practice,'' paper delivered at Hong Kong Democratic Foundation seminar
titled ``Thinking about 2007,'' October 21, 2000. See
---------------------------------------------------------------------------
The 1984 Sino-British Joint Declaration provides for democratic
rights, as well as incorporating in Hong Kong international human
rights covenants.\13\ In practice, since the hand-over, there have been
some problematic developments and failures to make progress. The
current electoral system works to the advantage of a tiny elite. A two-
thirds majority of the Legco would have to vote to institute full
universal suffrage after 2007. Even amendments to government bills,
proposed by legislators, require the Chief Executive's approval to be
considered. Even more problematic is the fact that amendment of the
Basic Law is vested in the National People's Congress (NPC).\14\
---------------------------------------------------------------------------
\13\ Joint Declaration, para. 3(5) & Annex I, art. XIII.
\14\ Basic Law, art. 159.
---------------------------------------------------------------------------
Attacks on the judicial independence is probably the greatest
causes for concern about continued protection of human rights. On the
other hand, continued exercise of freedom of speech and association is
the greatest cause for optimism. The 1991 Bill of Rights Ordinance
remains in force after the handover, minus certain key provisions; it
copies almost verbatim the International Covenant on Civil and
Political Rights (ICCPR).\15\ At least, the PRC government continues to
file reports on behalf of Hong Kong under the international human
rights covenants. Yet, as is clear from the concerns expressed above
about the willingness of both the PRC and Hong Kong governments to
follow through on settled expectations about the pace of
democratization in the HKSAR, much more remains to be done. Judiciously
applied, foreign pressure to maintain the pace established by the
HKSAR's foundational documents can encourage progress for the millions
of Hong Kong residents whose democratic aspirations should not be
dashed.
---------------------------------------------------------------------------
\15\ Hong Kong Bill of Rights Ordinance, No. 59 (1991) reprinted in
30 Int'l. Leg. Mats. 1310 (1991); International Covenant on Civil and
Political Rights, 6 Int'l. Leg. Mats. 368 (1967).
The Basic Law of the Hong Kong Special Administrative Region of the
People's Republic of China
ANNEX I: METHOD FOR THE SELECTION OF THE CHIEF EXECUTIVE OF THE HONG
KONG SPECIAL ADMINISTRATIVE REGION
1. The Chief Executive shall be elected by a broadly representative
Election Committee in accordance with this Law and appointed by the
Central People's Government.
2. The Election Committee shall be composed of 800 members from the
following sectors:
Industrial, commercial and financial sectors--200
The professions--200
Labour, social services, religious and other sectors--200
Members of the Legislative Council, representatives of district-based
organizations, Hong Kong deputies to the National People's
Congress, and representatives of Hong Kong members of the
National Committee of the Chinese People's Political
Consultative Conference--200
The term of office of the Election Committee shall be five years.
3. The delimitation of the various sectors, the organizations in
each sector eligible to return Election Committee members and the
number such members returned by each of these organizations shall be
prescribed by an electoral law enacted by the Hong Kong Special
Administrative Region in accordance with the principles of democracy
and openness.
Corporate bodies in various sectors shall, on their own, elect
members to the Election Committee, in accordance with the number of
seats allocated and the election method as prescribed by the electoral
law.
Members of the Election Committee shall vote in their individual
capacities.
4. Candidates for the office of Chief Executive may be nominated
jointly by not less than 100 members of the Election Committee. Each
member may nominate only one candidate.
5. The Election Committee shall, on the basis of the list of
nominees, elect the Chief Executive designate by secret ballot on a
one-person-one-vote basis. The specific election method shall be
prescribed by the electoral law.
6. The first Chief Executive shall be selected in accordance with
the ``Decision of the National People's Congress on the Method for the
Formation of the First Government and the First Legislative Council of
the Hong Kong Special Administrative Region.''
7. If there is a need to amend the method for selecting the Chief
Executives for the terms subsequent to the year 2007, such amendments
must be made with the endorsement of a two-thirds majority of all the
members of the Legislative Council and the consent of the Chief
Executive, and they shall be reported to the Standing Committee of the
National People's Congress for approval.
ANNEX II: METHOD FOR THE FORMATION OF THE LEGISLATIVE COUNCIL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION AND ITS VOTING PROCEDURES
I. Method for the formation of the Legislative Council
1. The Legislative Council of the Hong Kong Special Administrative
Region shall be composed of 60 members in each term. In the first term,
the Legislative Council shall be formed in accordance with the
``Decision of the National People's Congress on the Method for the
Formation of the First Government and the First Legislative Council of
the Hong Kong Special Administrative Region.'' The composition of the
Legislative Council in the second and third terms shall be as follows:
Second term
Members returned by functional constituencies--30
Members returned by the Election Committee--6
Members returned by geographical constituencies through direct
elections--24
Third term
Members returned by functional constituencies--30
Members returned by geographical constituencies through direct
elections--30
2. Except in the case of the first Legislative Council, the above-
mentioned Election Committee refers to the one provided for in Annex I
of this Law. The division of geographical constituencies and the voting
method for direct elections therein; the delimitation of functional
sectors and corporate bodies, their seat allocation and election
methods; and the method for electing members of the Legislative Council
by the Election Committee shall be specified by an electoral law
introduced by the Government of the Hong Kong Special Administrative
Region and passed by the Legislative Council.
II. Procedures for voting on bills and motions in the Legislative
Council
Unless otherwise provided for in this Law, the Legislative Council
shall adopt the following procedures for voting on bills and motions:
The passage of bills introduced by the government shall require at
least a simple majority vote of the members of the Legislative Council
present.
The passage of motions, bills or amendments to government bills
introduced by individual members of the Legislative Council shall
require a simple majority vote of each of the two groups of members
present: members returned by functional constituencies and those
returned by geographical constituencies through direct elections and by
the Election Committee.
III. Method for the formation of the Legislative Council and its voting
procedures subsequent to the year 2007
With regard to the method for forming the Legislative Council of
the Hong Kong Special Administrative Region and its procedures for
voting on bills and motions after 2007, if there is a need to amend the
provisions of this Annex, such amendments must be made with the
endorsement of a two-thirds majority of all the members of the Council
and the consent of the Chief Executive, and they shall be reported to
the Standing Committee of the National People's Congress for the
record.
______
Thinking About 2007
The formal institutions of government, namely the constitution, the
executive, the legislature, the judiciary, and the electoral system.
Hong Kong's constitutional journey is in specifics unique. Most former
colonies were released from their imperial power decades ago; Hong Kong
was almost the last major territory to achieve such release. Further,
these former colonies mostly achieved independence and replaced their
former colonial administration with the institutions of democratic
government. Hong Kong was absorbed by another sovereign power, and
preserved its former administration almost unchanged. Indeed, in Hong
Kong's case a virtue was made of continuity with the colonial era.
THE NEED FOR REFORM
Hong Kong has an established system of rights and operates by the
rule of law. It enjoys a high standard of living and--the recent
recession apart--a high level of economic growth. Although many people
express discontent with the Government, there are no signs of mass
unrest. And Mainland China, the sovereign, would have to be persuaded
of the benefits of any reform. Is it worth expending the energy of the
people on the constitutional reform project?
Hong Kong's governance is essentially that of a colonial
administration, a form more appropriate to the nineteenth than to the
twenty-first century. The relatively favorable outcome of this
governance to date in terms of living standards and rights should be
regarded as exceptional--more a matter for congratulation than
something that can be relied upon for the long term. It should perhaps
also be remembered that under British rule there were certain checks
and balances on Hong Kong's colonial governance system, such as
accountability to the democratically-elected British Parliament. It is
not clear that in Hong Kong's present situation the continued enjoyment
of human rights, the rule of law, and ultimately of living standards,
can be assured.
Even on its own terms the constitution mandated by the Basic Law is
in the process of change--with a gradual expansion of directly elected
seats in the legislature and a progression, albeit without a definite
timetable, towards full democracy. It would seem imprudent not to plan
for these changes. Secondly, Hong Kong's governance structure would
appear inherently unstable: a legislature enjoying an increasing
mandate from the people but little power, facing an executive selected
by a narrowly-based committee which wields very considerable power. New
ideas and mechanisms are surely needed to make even the current
structure operate successfully, let alone to accommodate the changes
that lie ahead. Thirdly, the review of contemporary constitutional
experience provided by the Workshop reveals just how far Hong Kong is
from being an optimal polity. Reform can bring substantially greater
fulfillment to the people, and assure greater stability and prosperity
for community in the long term.
1. Institutions of Government
1.1 Constitution
Comparison of Hong Kong's constitution, the Basic Law, with those
of other polities reveals shortcomings. However, it should first be
asked, what kind of a document is the Basic Law? Most constitutions are
written by and on behalf of the peoples of states that are independent,
or that are to become independent. Hong Kong, however, is an entity
within a state, and its constitution was written for it by
representatives of the current sovereign power, China, within
parameters agreed with the former sovereign, Britain. The Basic Law, as
a document, thus has characteristics of a charter conferred on the
people by the sovereign, perhaps analogous to the charters granted to
certain cities in Medieval Europe. At any rate, development or
replacement of the Basic Law cannot be considered in isolation, but
involves the consent and perhaps the participation of the sovereign
power. Ultimately, there must be the question of convergence between
the constitution of the satellite and that of the sovereign.
The Basic Law does not express the aspirations or fundamental will
of the people. Hence it does not show how power flows from the people.
It does not show what in deepest terms Hong Kong is about. Most
constitutions set out such aspirations in their preamble to provide a
framework for the specific provisions that follow.
1.2 Executive
As already stated, Hong Kong's executive largely follows the form
of a colonial administration, similar to the former administrations of
Britain's other ex-colonies. The civil service wields both substantial
power of policy-making and power to administer policies. The Chief
Executive is selected by an Election Committee which is in turn
selected by the Mainland Chinese authorities or under their auspices--
the latter process being conducted in secrecy.
Essentially, with the departure of British administrators, it would
appear that the executive tends to represent the interests of local
business elite, the ``haves''. The thrust of the executive's policy
formulation--for example, in areas such as land use, the absence of a
competition law, neglect of anti-pollution regulations, etc.--rends to
align with the wishes of the business elite. And the democratically-
elected portion of the legislature would appear to represent the
``have-nots''. These legislators tend to press for welfare-type
policies such as a minimum wage, more public housing, lower government
charges. This already anomalous situation could be exacerbated by any
further concentration of power within the executive. Such further
concentration might be more divisive to Hong Kong society, and result
in more polarised debate over policy.
Rather, the Basic Law envisages an executive accountable to the
legislature (Article 64).
1.3 Legislature
Power of legislature
The Basic Law sets the direction of increasing the proportion of
legislators elected by direct election. As discussed above, this means
increasing the popular mandate and legitimacy of the legislature. If
stability and proportionality in the governmental system--and in
society as a whole--is to be maintained, it would appear that the
increasing mandate of the legislature should be matched by its
increasing power. Speakers at the Workshop drew attention to the
European Parliament which on establishment had little power, but
gradually took more power to itself because, being directly elected, it
had higher legitimacy than the other European governmental
institutions.
The composition of Legco.
The majority of its members are not directly elected and tend to
side with the government. Legco's voting procedures--the requirement
for the geographical seatholders and the others to approve separately
each motion--are also a handicap to effective performance. This was
demonstrated by the failure in October 2000 to come to a view on
whether or not to approve the vote of thanks for the Chief Executive's
Policy Address.
Committee procedure. It was pointed out that in the UK,
Parliamentary committees do most of the work in debating and if
necessary modifying a bill, so that when it comes to the House for a
reading, it's rare for further amendments to be made or for significant
further debate to be necessary. However, in Hong Kong, amendments are
rarely made as a result of committee input. As a result that the
reading of the bill in the full session of Legco to some extent
duplicates, or renders redundant, the work of the respective committee.
Ratio of committees to legislators. The Hong Kong legislature has
almost as many committees as a large developed country parliament like
the UK, yet one-tenth as many legislators. This means heavy demands on
the time of individual legislators, and presumably correspondingly
lower quality of input into debate. One option would be to increase the
number of Legislative Council seats. However, in order to maintain
public confidence in value for money, any such increase in the number
of legislators should probably not come before an increase in the
powers and functions of the legislature.
FUNCTIONAL CONSTITUENCIES
In the 2000 Legco, 30 seats are from Functional Constituencies and
10 are selected by an Election Committee. In polities with second
chambers, the second chamber frequently does have members selected
other than by geographical direct election. For example, the House of
Lords in Britain includes not only hereditary and appointed Lords but
also bishops. However, such narrowly-based second chambers are
supplementary to the primary chamber which is fully directly-elected.
Hong Kong's Functional Constituency and Election Committee elections to
the legislature are almost unique.
The Election Committee will not be used again. But by 2007 there
will still be 30 Functional Constituency seats. The Workshop felt the
functional constituency system to be highly anomalous. Among the
shortcomings noted was the fact that in 1998, 10 out of 28 FCs were
unopposed, while many others were returned by a ``small circle'' of
individual voters or by companies under common control. The Workshop
suggested three ways to address the issue of Hong Kong's functional
constituencies.
Abolition (anachronistic and should simply be abolished); reform
(make them more democratic and representative of the people); dilution
(reduce their influence by creating more directly elected seats).
1.4 Judiciary
Two points were made:
Firstly, Hong Kong needs a constitutional court.
Secondly, the independence of the judiciary cannot be relied upon
when the power of the Executive is as pervasive as it is in Hong Kong.
It is ultimately unreasonable, in the absence of other strong
institutions of government, to expect individual judges to resist the
executive. The independence of the judiciary needs to be buttressed by
strengthening other institutions such as the legislature.
Human rights. These are enshrined in the Basic Law and in statute, and
protected by the courts. However, Article 23 of the Basic Law
on subversion, and other provisions such as those enabling the
Chinese Central Government to intervene in Hong Kong's affairs
(Article 18) and to interpret the Basic Law (Article 158), the
superior privileges of ``Chinese citizens'', set limits on the
enjoyment of human rights. In practice, the non-democratic
nature of government and the power of the executive pose
further dangers.
Media. Important issues include the proliferation of newspapers, self-
censorship, censorship by newspaper owners, the role of the
press council, training and quality of journalists, shortfall
of investigative journalism, and the social standing of
journalists.
Senator Brownback. It is a good point.
Ms. Bork.
STATEMENT OF ELLEN BORK, DEPUTY DIRECTOR, THE PROJECT FOR A NEW
AMERICAN CENTURY
Ms. Bork. Thank you very much. It is a pleasure to be here.
I am going to move right to a couple of points, developing
a point that Jim Feinerman made about Beijing's interference in
Hong Kong and the appropriate U.S. response. For a number of
years I have observed that the United States policy effectively
embraces Beijing's terms for Hong Kong's governance and this
creates a real problem. If the United States' top priority, as
it should be, is to promote freedom and democracy in Hong Kong,
it is very difficult to do so while relying on the framework
that Beijing itself has developed for Hong Kong's governance. I
can certainly understand and respect why Hong Kong democrats
work within that framework. Certainly they do not mean to
challenge Beijing's sovereignty and I do not think the United
States does or anyone else does. But that does not preclude
people from criticizing the mechanism that Beijing has put in
place and the reality that this mechanism has created.
I would suggest that we defer much too much to the language
of ``one country, two systems.'' In fact there is one country,
but the two systems is not nearly as distinct as many of us
would hope, and I think that that is what Hong Kong's democrats
are trying to bring about by asserting their democratic rights
and that is what U.S. policy should also do. So in short, there
is a bit of a contradiction. It concerns me.
I am very pleased that Randy Schriver raised the attacks on
the patriotism of Hong Kong democrats. I think it was essential
that the United States, as a democratic country, speak up on
that point. In no way does it imply interference in China's
affairs.
But at the same time, U.S. officials have to resolve this
fundamental contradiction that they have been operating under
since well before the Bush administration. For a long time,
U.S. policy has been geared toward avoiding a confrontation
with Beijing. I do not think a confrontation has to be such a
scary thing. It is a truthful thing if the United States and
other democratic countries that pledged to defend Hong Kong's
rights and freedoms speak up for them and stop accepting that a
system that Beijing has put in place is likely to lead to
democracy. We hope that it might, but there are many ways in
which Beijing has tried to ensure that it will not.
So I would just leave it there.
[The prepared statement of Ms. Bork follows:]
Prepared Statement of Ellen Bork
I am grateful for the opportunity to speak here today about the
struggle for democracy in Hong Kong and U.S. policy on that subject. It
has been my privilege to work in support of Hong Kong's democrats and
rights activists in a number of positions, including as a staffer on
this committee under the chairmanship of Senator Helms, and for the
Hong Kong Democratic Party and Its chairman Martin Lee.
THREE POINTS
There are three points I would like to make. First, this year will
be decisive for the Future of freedom and democracy In Hong Kong. Hong
Kong's people have expressed their desire for an elected legislature
and chief executive in every way possible--through elections, marches
and opinion polls. Meanwhile, Beijing has laid down a tough line
against democracy and started a campaign of character assassination
against Hong Kong's pro-democracy camp. Beijing has even raised the
specter of dismantling the Hong Kong legislature in the event that pro-
democracy candidates do well in upcoming legislative elections in which
30 out of 60 seats will be determined by democratic methods.
Second, the attractive-sounding ``one country, two systems''
formula for Hong Kong's governance under mainland sovereignty, is a
fiction. The international community, including the United States, sees
in the ``one country, two systems'' formula the prospect that Beijing
will tolerate democratic expansion in Hong Kong. In fact, Beijing never
intended to grant real autonomy and maintains significant control over
the most important levers of power. By its own account full democracy
is not in the cards any time soon.
Third, the U.S. must stop accepting Beijing's blueprint for Hong
Kong. It flies in the face of President Bush's support for democracy
throughout the world. Beijing's position that democracy is not possible
in Hong Kong and its attacks on Hong Kong democrats as ``unpatriotic''
must be a priority for U.S. policy. Now that Beijing has indicated that
democracy is not possible for decades, the U.S. has a choice to make--
either to try to advance democracy now, or to acquiesce to a situation
that has grave consequences for Hong Kong, for the rest of China and
for Taiwan.
CRITICAL MOMENTS FOR HONG KONG
Last July, Hong Kong was swept up in the most dramatic events since
its 1997 return to Chinese rule. Well over one-half million people
marched to protest new national security laws that would threaten
rights of association, press, and religion. This pressure led to the
withdrawal of the legislation and the resignation of two very unpopular
government officials, one of whom was deeply involved in the national
security laws and widely known to be hostile to democracy and civil
liberties. A few months later, Hong Kong's democrats made a strong
showing in low-level elections for the district councils.
Popular discontent in Hong Kong over Beijing's efforts to implement
the new national security laws--the effort to impose them was kicked
off by Qian Qichen, the vice premier--went much deeper than the
specific laws themselves or the unpopular officials Beijing installed
to run Hong Kong. ``People in Hong Kong can see that the problem isn't
just with an individual, but with the structure,'' Yeung Sum, an
elected legislator and chairman of the Hong Kong Democratic party, told
The Washington Post. Hong Kong's people have shown once again, as they
often have, that they favor full democracy now. Poll results taken by
the respected Hong Kong Transition Project at Hong Kong Baptist
University show the same thing.
Beijing sees the upcoming elections in September for the
Legislative Council as a threat. Thirty of 60 seats will be up for
democratic election. Their political party allies--the Liberal Party
and the Democratic Alliance for the Betterment of Hong Kong have lost
support politically owing to their stance on the national security
legislation. The leader of the DAB, Tsang Yok Sing resigned after the
party fared poorly in the district councils elections. While James Tien
of the Liberal Party gained some favor for withdrawing support for the
national security legislation at a critical moment, he has recently
endorsed the mainland position that democrats are unpatriotic.
In response, Beijing has launched an intimidation campaign based on
accusations of disloyalty against Hong Kong's democrats. To be sure,
Beijing's methods in Hong Kong are different than they are on the
mainland. There, members of Falun Gong, the China Democracy Party and
labor activists and Tibetans and Christians find themselves arrested,
locked up, and even tortured. Just last week, two protesters were
arrested and charged with allegedly obtaining state secrets, a charge
which the organization Human Rights in China believes is related to
their efforts to document an ongoing crackdown on unofficial Christian
churches.
However, while its methods in Hong Kong are so far much less harsh,
Beijing is still determined as it is on the mainland. Members may have
read Tuesday's story in The Washington Post about Beijing's arrests of
Hong Kong residents with British citizenship. It is impossible to say
that Hong Kong's democrats are not in danger of some form of punishment
or imprisonment or what kinds of charges they may face for their
activities in the near future.
WHAT ``ONE COUNTRY, TWO SYSTEMS'' REALLY MEANS
Most analyses of Hong Kong concentrate on trends, asking whether
Beijing is interfering or not and whether Hong Kong is less free than
it was under British rule. While I would submit that the trend in Hong
Kong is not good, and Beijing is interfering in Hong Kong affairs, I
would like to suggest that members look at the situation in Hong Kong
another way: Beijing never intended Hong Kong to enjoy a high degree of
autonomy and definitely not democracy. Indeed, from the beginning
Beijing set up Hong Kong's system of governance to prevent that.
In the terms of Sino-British Joint Declaration, a treaty signed In
1984, China offered guarantees for Hong Kong's autonomy and freedom,
including an independent judiciary, a free market, civil liberties,
freedom of the press and a ``legislature constituted by elections.'' Of
course, in the lexicon of the Chinese Communist Party, democracy and
elections mean very different things than they do in Western usage.
Great Britain and China agreed that these guarantees would be codified
in a Basic Law, drafted by the Beijing-controlled committee and enacted
by the National People's Congress without the consent of the Hong Kong
people.
The system Beijing set up through the Basic Law gives itself
crucial direct and indirect controls over Hong Kong's affairs--
including the executive branch, the legislature and important aspects
of the judiciary. The chief executive is appointed by Beijing. As a fig
leaf, there is a choice made by a small ``Election committee'' of 800
people overwhelmingly dominated by pro-Beijing appointees. In visits to
the United States, Tung Chee-hwa has told Members of Congress and
others that he won a hard fought election campaign. In fact, the
indication that he had won his first term came when Jiang Zemin singled
him out for a handshake in a meeting in the Great Hall of the People.
China also has indirect control of the legislature. Only twenty-
four of its 60 seats are currently selected through democratic
elections. Thirty seats are assigned to functional constituencies that
are chosen by business, professional and other groups, many of which
are very small. Six seats are chosen by the ``Election Committee.''
While a few of these constituencies return pro-democracy candidates,
most are dominated by very conservative, business people who take
Beijing's line.
In the next elections in September, there will be 30 seats up for
democratic election, and 30 for the functional constituencies. Beijing
has already threatened to dissolve the legislature if it does not like
the outcome of the elections. Incidentally, when China took control of
Hong Kong, it dissolved the outgoing legislature constituted under the
British, undid the very minor reforms of Chris Patten, and on July 1,
1997, installed the ``Provisional Legislature.'' One of the things this
appointed legislature did was to revise the election law to establish a
system of proportional representation that was designed to reduce the
power of pro-democracy candidates.
As for the future, Beijing's Basic Law has does not provide for
full democracy. Indeed, there are various barriers within the Basic Law
to achieving democracy, including the provision that any changes to the
methods for choosing the chief executive and constituting the
legislature must get a two thirds vote of the current legislature and
the approval of the sitting chief executive.
There is quite a lot of discussion going on in Hong Kong now about
what Deng Xiaoping, and the legal experts who drafted the Basic Law,
thought or meant about its provisions. One of the legal experts
recently said, Hong Kong might have democracy ``in the 2040's'' or even
``the 2030's, but absolutely not as soon as 2007.'' As the Oxford
scholar Steve Tsang has written, ``To a Westerner, the idea of Hong
Kong people administering Hong Kong within the framework of `one
country, two systems' may imply that after 1997 Hong Kong will be free
to run its own domestic affairs with no interference from Beijing as
long as PRC sovereignty is acknowledged. Such an interpretation is
totally unacceptable to Beijing.''
However, U.S. policymakers and Members of Congress should not
engage in this exercise too much. It is highly problematic for
democratic politicians and policymakers to rely on the intent of senior
cadres of the Chinese Communist Party in trying to decide what should
or should not happen in Hong Kong. Which brings me to my third point--
that Washington has relied much too heavily on the Basic Law and
China's own framework for governing Hong Kong in formulating U.S.
policy.
CRITICAL MOMENT FOR U.S. POLICY
U.S. policy toward Hong Kong has reached a critical moment. For
many years, the U.S. has accepted Beijing's blueprint for Hong Kong's
political development. In fact, Secretary Powell did so just yesterday
at the Heritage Foundation when he expressed his desire that Hong
Kong's ``political culture continue to thrive under the `Basic Law.' ''
On the few other occasions on which top U.S. officials have spoken
publicly about Hong Kong, they too have linked U.S. support for
democracy to the provisions of the Basic Law.
This is part of a pattern. The U.S. has for many years tried to
avoid confronting Beijing over Hong Kong. Before the handover, the U.S.
felt that it could stay in the background while Great Britain
negotiated its way out of Hong Kong. The U.S. tried to take the
position that while it wanted Beijing to respect its commitments in the
Joint Declaration, the U.S. had no claim to be able to determine that
any particular Chinese action violated those commitments. On one
occasion, assistant secretary of state Winston Lord told this
committee, ``The United States does not offer legal interpretations of
agreements to which it is not a party.'' This overly legalistic
approach enabled the U.S. to stay silent at important times.
To be fair, the U.S. does more than any other country to expresses
support for the ideal of democracy in Hong Kong. President Bush raised
Hong Kong with General Secretary Jiang Zemin during their meeting at
the president's ranch In Texas when the effort to pass the national
security laws was just getting underway. But it was also problematic
that President Bush did not raise Hong Kong with General Secretary Hu
Jintao at the last G-8 meeting. In other words, the U.S. has a short
term approach to Hong Kong, which tries to mitigate the worst
developments, while not challenging Beijing on the big picture, or
pursuing a democracy agenda of its own.
A stronger response, and a broader vision, is necessary. First, the
U.S. should respond to the intimidation campaign against democrats. Not
doing so lends credence to the attacks on people, including Martin Lee,
for associating themselves with democracy and seeking support from the
international community of democracies, including the United States.
Second the U.S. must resolve the inherent contradiction in its
policy. The U.S. cannot advance democracy in Hong Kong according to
terms set forth and interpreted by Beijing. Questioning the provisions
of the Basic Law is not a challenge to Beijing's sovereignty, no matter
how much Beijing suggests that. However, so long as Washington seeks to
advance democracy within the constraints set down by Beijing, two
things will be true: democracy will not advance, and Hong Kong's
democrats will face serious jeopardy.
Senator Brownback. That is a good thought.
Mr. Tkacik.
STATEMENT OF JOHN J. TKACIK, JR., RESEARCH FELLOW IN CHINA
POLICY, THE HERITAGE FOUNDATION
Mr. Tkacik. Thank you very much for having me here, Mr.
Chairman. I first want to say how much I admire you and the
leadership you have shown in forming American policy in Asia,
and I hope that this panel continues that.
One of the things I would like to do at the beginning is
pick up on what both Jim and Ellen said, which is the United
States policy embraces Beijing's terms, when we look at China
policy, when we look at Hong Kong policy, when we look at
Taiwan policy even. Hence, we wring our hands about whether
Beijing is being fair to attack Hong Kong political figures as
being unpatriotic because let us remember, patriotism in
Beijing does not mean love of China. Patriotism in Beijing
means love of and loyalty to the Chinese Communist Party. That
is their business. But let us make sure we are looking at this
in the proper framework.
Second, ``one country, two systems'' does not mean that
Hong Kong is free to run its own affairs. ``One country, two
systems'' merely means that Beijing will treat Hong Kong pretty
much the same way it treats Tibet or Xinjiang.
I was asked to put the Hong Kong issue in a broader
strategic perspective. I have a six-page statement and I was
sort of hoping I could read it, but what I will say is that the
two major American concerns I think with Hong Kong are being
eroded.
One is 15 years ago, America saw Hong Kong as a beacon of
freedom to China, and I have to say that over the last 7 years,
we have seen that flicker out. It is a very dimming light, if
it still shines at all in China.
Second, I would say anybody that looked at the ``one
country, two systems'' model has to be embarrassed by what is
going on in Hong Kong. Anybody that argued that Hong Kong's
successful transfer to Chinese sovereignty under the ``one
country, two systems'' model would reassure democratic Taiwan
that it too would be free to thrive and run its own affairs has
to be completely discredited at this point.
The real question I think American leaders have to ask
themselves now is what are you going to do about it. What is
America's executive leadership, what is its legislative
leadership going to do? And I am not sure there is a whole lot
left to be done for Hong Kong's people at this point. Hong Kong
is already under Chinese sovereignty. There is little that you
can do beyond the mere symbolic. If the United States, however,
is serious about giving the people of Hong Kong the leverage
they need in their bid for a government responsive to the
people via universal suffrage, I think our leadership in the
United States has to take some kind of action, not just words.
I suggest substantively that the administration and
Congress could, for instance, make China's implementation of
its promises for democratization in Hong Kong a touchstone of
our overall strategy toward China. Unfortunately, I am afraid
that the United States really does not have a clear strategy
toward China aside from watching and waiting. I was heartened
by Secretary Powell's comments on Tuesday at the Heritage
Foundation encouraging China to become democratic but there was
no ``if not, then what do you do?''
One thing you could do is adopt Secretary Powell's language
on Taiwan, for instance. He said many times whether China
chooses peace or coercion to resolve its differences with
Taiwan will tell us a great deal about the kind of role China
seeks with its neighbors and seeks with us. I think if you
substitute Hong Kong into that, you have a very effective
symbolic gesture.
One thing that is I think concrete that you could do, that
the administration and Congress could do I think, is refrain
from calling China a ``partner in diplomacy to meet the dangers
of the 21st century.'' This is how the administration refers to
China now despite China's massive military buildup opposite
Taiwan. I think you have to use sticks as well as carrots with
the Chinese. I think it is important that the United States
continue to reiterate its strong support for the Hong Kong
people.
Give substance to your verbal expressions of concern. I
think a persuasive measure would reside in an informal
cessation of Presidential or Vice Presidential visits to or
from China until progress on Hong Kong's democratization in the
spirit, not the letter, of the UK-PRC Joint Declaration and the
Basic Law is clear. The Congress I think could also adopt a
similar stance, either explicitly in a resolution that House
and Senate leaders refrain from visits to China while Hong
Kong's continued processes of democratization is in question,
or implicitly as senior members find it ``inconvenient'' to
visit China or to host visits from Chinese counterparts while
Hong Kong's democratization is in question.
There is another small demonstration of concern. I think
Congress should, indeed, mandate the Commerce Department to
reexamine the integrity of our dual-use and advanced technology
exports to Hong Kong. I think such a reexamination might
reflect that Hong Kong's law enforcement agencies are, indeed,
capable of maintaining the insulation between the SAR and China
that is necessary to satisfy the United States that such
technologies are protected from improper use or re-export. But
then again, it might not. You will never know, but I think it
is an important issue.
I think finally we just have to be realistic in our China
policy. China's leaders must be made to see that, like Taiwan,
how China chooses to realize its pledges on universal suffrage
and democracy for Hong Kong will tell us a lot about China's
respect for democracy. At some point, the scales must fall from
our eyes and China must be dealt with as she is, not as we hope
she might possibly become some day.
In sum, I would just raise one last point. I think it was
today that Hong Kong's Chief Executive, C.H. Tung, asked what
is unpatriotic, and his answer was ``listen to one's words,
watch one's behavior.'' ``One country, two systems'' is a
family affair. It is a country's affair. A country's affair. It
is our own affair. Foreigners should not interfere, nor should
foreign interference be tolerated.
My point is that this is not a matter of patriotism. This
is a matter I think of freedoms and it is a matter of the
commitments that China made not just to the people of Hong
Kong, not just to the British Government, not just in a
declaration that now resides in the United Nations. I think it
made an implicit contract with the international community, and
I think it is up to us to demonstrate our support for the
people of Hong Kong.
Thank you very much.
[The prepared statement of Mr. Tkacik follows:]
Prepared Statement of John J. Tkacik, Jr.
Chairman Brownback and Members of the Subcommittee:
Thank you for the opportunity to appear before you today to discuss
U.S. policy towards Hong Kong in the broad context of America's
interests in China and East Asia. Mr. Chairman, your outstanding
efforts to put the expansion of freedom and democracy at the top of
America's agenda and to help repressed peoples of countries like Iran,
North Korea, and Burma, are a tremendous contribution to American
foreign policy. I hope that today's hearing on Hong Kong will serve to
remind Beijing's leaders that their commitments to preserve Hong Kong's
freedoms were not just to the people of Hong Kong but enshrined in an
international agreement that is deposited with the United Nations, and
that the world's democracies have a stake in the survival and success
of Hong Kong.
THIRTY YEARS OF HONG KONG WATCHING
My first professional glimpses of Hong Kong came thirty years ago
as a Vice Consul based in Taipei working on U.S. visa and immigration
matters, and after serving nearly a decade in Taiwan and China, I
returned to Hong Kong as Deputy Chief of the Consular Section at the
U.S. Consulate General. After the Tiananmen Incident in June 1989, I
was the Deputy Consul General in Guangzhou, with responsibility for all
State Department political and economic reporting from south China,
including the Special Economic Zones (SEZs) of Shenzhen and Zhuhai
which are adjacent to Hong Kong and Macao in China's prosperous Pearl
River Delta. From Guangzhou, I was transferred to the State Department
in Washington where I was Chief of China Analysis in the Bureau of
Intelligence and Research. I retired from the Foreign Service in 1994
and later worked for a year as a vice president of RJR Nabisco China
based in Hong Kong, and then did private consulting work on China
business opportunities. I have been with The Heritage Foundation since
June 2001 as a resident fellow in China research.
I tell you this because I have watched Hong Kong evolve from the
West's peephole on Maoist China in the 1960s and 1970s, to China's most
important financial, trade and shipping center in the 1980s and 1990s.
Since the Retrocession of Hong Kong to China in 1997, I have seen
Shanghai move in to rival Hong Kong as China's commercial nerve center,
and I expect Hong Kong's importance in East Asia to diminish as two
dynamics take place.
First, the Central People's Government in Beijing will continue to
make Shanghai ever more attractive to international businesses--not to
mention Chinese commercial enterprises--with ever expanding
telecommunications, transport, shipping, aviation, electric power and
water infrastructures.
Second, Hong Kong will gradually merge with China's adjacent
Special Economic Zones and become seamlessly integrated with the Pearl
River Delta economy and with South China's political and defense
structures.
HONG KONG, A DIMMING BEACON OF FREEDOM TO CHINA
If these two processes continue unchecked, it will likely mean that
by the year 2047, Hong Kong will have merged totally with China,
politically and strategically as well as economically and socially. The
ultimate effect, all things being equal, will be the disappearance of
Hong Kong as an entity distinct from the rest of the People's Republic.
Of course, this was not what was contemplated by the United Kingdom,
nor the people of Hong Kong or the international community at the time
the UK-PRC Joint Declaration of 1984 was signed. At the time, China's
leader Deng Xiaoping reassured the world that after 1997, ``Hong Kong
People would rule Hong Kong,'' and that for ``fifty years, there would
be no change.''
Since 1997, however, China's policies toward Hong Kong have
undermined both those pledges. The other witnesses today will certainly
give more eloquent testimony than I can to that effect. My modest
contribution to this hearing will be to consider some of the ways that
this affects America's broader strategic interests in East Asia.
First and foremost, America's primary strategic interest in Asia
must be the democratization of China. As Secretary of State Colin
Powell said Tuesday March 2 in his B.C. Lee lecture at The Heritage
Foundation, ``We believe, too, that if the democracies of Asia can be
consolidated and strengthened, and if new Asian democracies join them,
then when China comes inevitably to accept systematic political reform,
its leaders will see democracy in the same light that they have seen
market economics.''
15 years ago, China watchers in the United States, both in and out
of government, saw Hong Kong as a beacon of freedom for China and an
inspiration to political reform. Indeed, their hopes were justified by
the vibrant political debates in China, especially in South China where
I was reporting, in the year or so before the Tiananmen crackdown. Not
only had Hong Kong's mature legal system been an anchor for contracts
and business agreements that facilitated outside investment in the
Pearl River area, but Hong Kong's legal guarantees for broader civil
and human rights began to change the way Chinese thought about
governance. Hong Kong's influence was subtle.
When I first arrived in Guangdong, Hong Kong's Cantonese language
television and radio programs were wildly popular, and South China's 63
million Cantonese speakers vastly preferred Hong Kong programming to
domestic Chinese broadcasts. I recall watching a rerun of an American
detective series called ``Hunter'' in which a malefactor was collared
by the police and read his ``Miranda'' rights, the right to remain
silent, to have an attorney, and the caution that anything said could
be used against him. The program was faithfully dubbed into Cantonese
with Mandarin subtitles. And by the time I left Guangzhou three years
later, this sort of exposure to Western legal procedures was standard
fare for South China television viewers.
But it was about that time that the Central Government in Beijing
began to take measures that ensured Hong Kong's ``well water'' would
not interfere with China's ``river water'' after 1997. China resolutely
prohibited British attempts to push Hong Kong's political institutions
toward full, universal suffrage, and in the end even disbanded the last
Hong Kong Legislative Council that was supposed to provide the
``through-train'' across the July 1, 1997 transition to Chinese
sovereignty. After 1997, self-censorship in Hong Kong's news media
became commonplace (although Hong Kong still boasts several popular
printed journals that continue a lively political debate, even on the
ultra-taboo topic of Taiwan). Television and radio programming is tame
and even halfway daring programming is punished--by the media owners
themselves.
In 2002, at Hong Kong's flagship English newspaper, the South China
Morning Post, for example, the independent-minded editor, Jonathan
Fenby, was replaced, followed by the features editor, Charles Anderson,
and then Willy Lam, the China editor and prominent China-watcher, who
was replaced by an editor trained at the mainland's China Daily. Other
dismissals followed. The paper's Beijing correspondent, Jasper Becker
was fired for ``insubordination'' when he described Chinese President
Jiang Zemin's unimpressive performance at a joint press conference with
President Bush.
Last year, the Hong Kong Broadcasting Authority fined a popular
talk-show host for expressing the opinion that the city's deputy
director of housing was a ``dog.'' Multinational satellite TV
corporations carefully water-down their Chinese language programming
out of Hong Kong to permit their transmission into China. And proposed
anti-sedition legislation under ``Article 23'' of Hong Kong's Basic Law
would have permitted the Hong Kong government to silence a journalist
who questioned the government's mishandling of the SARS epidemic.
The latest controversies over the ``Article 23'' legislation and
demands for constitutional reforms in Hong Kong are now under full-
scale assault from Beijing and Beijing's appointees in Hong Kong's
government. In short, Hong Kong has not proved to be the beacon of
democratic values into China that we once thought it might be. if
Beijing's tactics are successful in cowing legitimate dissent in Hong
Kong, and if the international community sits on its hands in
acquiescence, China will instead become the beacon of authoritarian
control to Hong Kong.
``ONE COUNTRY, ONE SYSTEM''
Similarly, those who argued that Hong Kong's successful transfer to
Chinese sovereignty under the so-called ``one Country, two systems''
model would reassure democratic Taiwan that it too would be free to
thrive and run its own affairs in a similar ``one country, two
systems'' structure, must surely be embarrassed.
When I was in Guangzhou in 1992, Beijing's overt strategy for the
Shenzhen SEZ was ``internationalization.'' The Shenzhen SEZ could claim
special privileges because ingress and egress from the rest of China
involved transiting a ``soft line'' border-crossing between the SEZ and
Guangdong Province. Beijing's ultimate goal was to strengthen that
``soft line'' while lowering the ``hard line'' between Hong Kong and
the SEZ.
By 2002, the Hong Kong government began to ease barriers to
economic flows with mainland China, particularly those affecting the
flow of ``people, cargo, capital, information and services'' from China
back into Hong Kong. As such, Hong Kong's labor force, which lost
650,000 manufacturing jobs to mainland China over the past decade,
began to feel the pain of integration with China's lower-cost
manufacturing and services base. Integration will also equalize
property values (further depressing Hong Kong's real estate market),
enable Chinese from Shenzhen to compete directly in the Hong Kong labor
market, and begin the process of gradually integrating Hong Kong and
Shenzhen into one seamless zone.
Many Hong Kong businesses still urge the government to streamline
traffic across the border and better coordinate infrastructure
development with Shenzhen. Last year, China began to implement a
``Closer Economic Partnership Agreement'' (CEPA) which basically sealed
Hong Kong's demise as a manufacturing base. But with it immigration
rules barring Chinese workers from migrating to Hong Kong were relaxed,
so that Chinese were treated equally with all other foreigners.
Restrictions on Chinese tourists coming to Hong Kong were eased and the
amount of money they could spend in Hong Kong was more than doubled.
The result has been a dramatic influx of cash that has returned the
color to Hong Kong's anemic economy, but at the same time has
encouraged an inflow of PRC citizens.
The degree of integration between Hong Kong and the rest of China
raises serious concerns that blurring the line makes it increasingly
difficult to justify keeping the two jurisdictions separate for export
purposes, particularly the export of advanced technology products that
have dual civilian-military uses. Such separate treatment is authorized
by Section 103(8) of the Hong Kong Policy Act of 1992. It is no secret
that People's Liberation Army front companies operate extensively in
Hong Kong, and I have heard concerns that they make use of Hong Kong's
special status to import denied technology that is unavailable via
other channels. Because export licenses are not required for advanced
technology shipments to Hong Kong, there is no record-keeping, much
less verification or follow-up, on such exports.
Although, I have heard nothing but praise from U.S. officials who
interact with their Hong Kong counterparts in the Customs and Excise
Service and Trade and Industry Department. It is too much to ask even
of these dedicated and professional law enforcement officers to enforce
Hong Kong's regulations against the interests of Beijing's military and
security services.
I have heard only the highest praise for the professionalism and
cooperation of Hong Kong's Joint Financial Intelligence Unit in sharing
its intelligence on money-laundering. Indeed, Hong Kong's participation
in the Financial Action Task Force's Asia/Pacific Group on Money
Laundering and the Egmont Group of financial intelligence units. Hong
Kong has proven itself to be the Asian linchpin for terrorism-related
money-laundering intelligence.
In general, Hong Kong's participation in international criminal,
terrorism and narcotics intelligence has set the standard for Asia.
Some argue that Hong Kong's participation has also resulted in more
professional participation by China, although the State Department's
latest report on ``Money Laundering and Financial Crimes'' indicates
that China's cooperation in such activities remains comparatively weak.
CONCLUSION
Following Hong Kong's 1997 handover to China, the Special
Administrative Region suffered twin blows from the Asian Financial
Crisis and the 2001 global recession. Its manufacturing base has
basically migrated to China, its position at the center of Asian
finance has been eroded by steady competition from Singapore, and its
role as the ``Gateway to China'' has been supplanted by Shanghai. There
is a marked trend toward integrating the Shenzhen SEZ with Hong Kong
via ``internationalization'', the CEPA and the lowering of immigration
and customs barriers with China. China has begun the process of
imposing its defense, internal security and intelligence priorities on
Hong Kong via the so-called ``Article 23'' legislation. Finally, the
idea of ``Hong Kong People Ruling Hong Kong'' has been debased by
Beijing's reneging on the spirit of its pledges in the Basic Law to
implement ``universal suffrage'' in the period ``after 2007''.
Hong Kong is already fully integrated into China with the CEPA, and
all indications are that the trend is toward a Hong Kong SAR that is
integrated into China politically. At bottom, this is the essence of
``one country, two systems.''
RECOMMENDATIONS
I am not sure there is much left that can be done for Hong Kong's
people. Hong Kong is already under Chinese sovereignty, and there is
little to be done that goes beyond the merely symbolic. If the United
States is serious about giving the people of Hong Kong leverage in
their bid for a government responsive to the people via universal
suffrage election, then our political leaders must take action.
(1) Substantively, the Administration and Congress should:
Make China's implementation of its promises for
democratization in Hong Kong a touchstone of our overall
strategy toward China. Unfortunately, the Administration does
not seem to have a clear strategy for China aside from watching
and waiting.
Adopt Secretary of State Powell's language on Taiwan as a
model. The Secretary has declared that ``whether China chooses
peace or coercion to resolve its differences with Taiwan will
tell us a great deal about the kind of role China seeks with
its neighbors and seeks with us.''
Refrain from calling China a ``partner in diplomacy to meet
the dangers of the 21st Century.'' This is how the
Administration now refers to China despite China's massive
military build-up opposite Taiwan.
Use sticks as well as carrots. Just this past Tuesday
Secretary Powell noted ``half a million brave people marched
through the streets of Hong Kong to peacefully oppose
legislation that would have curbed their civil liberties,'' and
proclaimed that ``it is important to all those who cherish
democracy that Hong Kong remain open and tolerant, and that its
political culture continue to thrive under the `basic law' with
China.'' But he offered no ``or else.''
(2) Give substance to your verbal expressions of concern. A
persuasive message would reside in an informal cessation of
Presidential or Vice Presidential visits to or from China until the
progress of Hong Kong's democratization in the spirit--not the letter--
of the UK-PRC Joint Declaration and the Basic Law is clear. The
Congress could also adopt a similar stance, either explicitly in a
resolution that House and Senate leaders refrain from visits to China
while Hong Kong's continued processes of democratization is in
question, or implicitly as senior members fine it ``inconvenient'' to
visit, or to host visits from Chinese counterparts.
(3) As another small demonstration of concern, the Congress should
mandate that the Commerce Department reexamine the integrity of our
dual-use and advanced technology exports to Hong Kong. It may reflect
that Hong Kong's law enforcement agencies are indeed capable of
maintaining the insulation between the SAR and China necessary to
satisfy the United States that such technologies are protected from
improper use or reexport.
(4) Finally be realistic in our China policy. China's leaders must
be made to see that, like Taiwan, ``how China chooses to realize its
pledges on universal suffrage and democracy for Hong Kong will tell us
a great deal about China's respect for democracy in the rest of Asia.''
At some point, the scales must fall from our eyes, and China must be
dealt with as she is, not as we hope she might possibly become someday.
Senator Brownback. Thank you very much. Because the vote
has been called, I will not be able to ask any questions of
this panel. I do appreciate very much your presentations.
I want to say in conclusion I have been to Hong Kong
several times. It is a beautiful city. It is and can be a
leading city. I think it is going to be key to how we frame our
policy toward it in the future and recognize the difficulties.
I look to this panel and to others to advise us if we need
to take steps to amend the Hong Kong Policy Act, the 1992
policy act, to try to frame and put forward more of our
concerns on universal suffrage. I am pleased with the
administration's aggressive statements. I think those are
important in our long-term relationship with Hong Kong. I think
what happens in Hong Kong is going to be viewed and watched
around the world, and it is very important that it move toward
universal suffrage by 2007. The people of Hong Kong are ready
for it. It does not threaten Beijing. It needs to happen and we
need to put strength behind our words in saying and doing that
as well.
I just want to thank the panelists. I particularly want to
express my thanks to the people who traveled from Hong Kong to
be here and suffered the barbs and arrows that you have to
simply stand for freedom and what is put forth in the Basic
Law. Godspeed to you in this effort of the dream of mankind,
which is to be free, and carrying that on forward.
The hearing is adjourned.
[Whereupon, at 4:05 p.m., the subcommittee adjourned, to
reconvene s subject to the call of the Chair.]