It was one year ago that the Standing Committee of the National People’s Congress (NPCSC) delivered a decision on August 31 to set the contours within which the election of Hong Kong’s Chief Executive by universal suffrage could take place in 2017.
The decision triggered what the world now knows as the Umbrella Movement, perhaps the largest public protest that took place on the Chinese soil in recent times. The Umbrella Movement did not succeed in compelling the NPCSC to take back its highly controversial decision. But at the same time, even Beijing’s plans to cage universal suffrage in Hong Kong did not go as per the script: the Legislative Council did not approve the Hong Kong government’s political reform proposal based on the NPCSC decision. Worse, after the bungled walkout by the pro-establishment LegCo members during the reform vote, cracks within the pro-establishment camp have not only widened but also become public.
One year on, what lessons could Beijing learn from the saga that followed the NPCSC decision? How could Hong Kong’s autonomy be preserved from NPCSC’s decisions? These are pertinent questions because further confrontations between the central government authorities and Hongkongers regarding the implementation of “one country, two systems” are inevitable in years to come.
No government organ operating under a written constitution—including under constitutions belonging to a Communist genre—can have absolute powers either on paper or in practice. The NPCSC’s powers under the Chinese Constitution as well as under the Basic Law are no exception, especially because the Chinese government repeatedly claims to be moving toward a rule of law society. But who could tame the NPCSC? There are at least three potential actors who could control the NPCSC’s abuse of power: the National People’s Congress (NPC), Hong Kong’s Court of Final Appeal (CFA), Hong Kong people.
Article 62(11) of the Chinese Constitution expressly empowers the NPC “to alter or annul inappropriate decisions” of NPCSC. The NPCSC’s August 31 decision was inappropriate both legally and politically. Technically speaking, the NPCSC has no power to make “decisions” regarding the Basic Law. It only has the power to interpret the Basic Law and that power too must be exercised subject to substantive and procedural limitations stipulated therein. For example, the NPCSC cannot in effect amend the Basic Law in guise of its power of interpretation.
The NPCSC’s August 31 decision was also inappropriate politically: the chances of Hongkongers electing a Chief Executive who is confrontational and does not “love China” (whatever that means) is almost zero due to multiple in-built safeguards. So, in political terms too, the NPCSC’s decision lacked political foresight. It not only galvanised Hongkongers to occupy streets for several weeks against pseudo universal suffrage plans, but also cautioned people in Taiwan that Beijing cannot be trusted. Despite the apparent inappropriateness of the NPCSC’s decision, it is highly unlikely under the current political structure that the NPC would intervene to annul the decision.
The next question then is: Does the CFA have the power to review decisions of the NPCSC? Opinions are divided on this point. In a carefully crafted judicial retreat in the Ng Ka Ling (No. 2) case, the CFA said that it will not question the authority of the NPCSC to do any act which “is in accordance with the provisions of the Basic Law.” This suggests that the CFA has reserved to itself the power to review the NPCSC decisions on the ground of their inconsistency with the Basic Law. If necessary, the CFA could also rely on the “basic structure” doctrine—which entails that certain fundamental provisions of a constitution cannot be amended at all by the legislature—to declare unconstitutional decisions of the NPCSC.
However, the CFA may be hesitant to exercise its power of judicial review against the NPCSC decisions, as doing so might lead to a direct confrontation with the NPCSC and in turn jeopardise the CFA’s dignity and judicial independence. Courts in different settings come up with own strategies to preserve their autonomy, power and public legitimacy. The CFA may think that no such drastic action may be needed, as there is not direct or serious threat to the courts’ autonomy at this stage. However, it would be naïve for the CFA to think that Beijing would allow Hong Kong courts to be independent in all matters and all times to come. Beijing will tolerate judicial independence only if, and as long as, its political goals are not disturbed. Hong Kong people are the third potential bulwark against the NPCSC. Hongkongers are generally apolitical creatures, but history has shown that if you push them to the wall, they would react decisively. Beijing and its agents in Hong Kong might do all they can to secure a 2/3 majority in the LegCo in 2016 and thus try to make the pan-democrats irrelevant in the political reform process in future. It is far from certain whether this goal would be accomplished. But even under the best possible scenario of 2/3 majority in the LegCo, both Beijing and the local government would have to deal with “Hongkongers on the street” if any attempt was made to trample their “way of life” or freedoms.
The tricks that work in mainland China to maintain social harmony and political control will not work in Hong Kong. Nor should the NPCSC push Hong Kong courts or its people too much. Instead of overreacting to imaginary risks and in turn alienating Hongkongers, Beijing should find ways of working with them now, until 2047 and beyond. Unless it becomes absolutely necessary for genuine national security reasons or asked specifically by local governance institutions, non-interference in Hong Kong’s affairs will be a wise choice for the NPCSC. In fact, all central government authorities will benefit from embracing Newton’s Third Law of Motion: “For every action there is an equal and opposite reaction.”