Beijing bans rule of law in HK, few notice

Big Lychee, Various Sectors

Today, 1:12 PM

Hongkongers of a frail and nervous disposition swoon in disbelief as China’s top official in towndeclares that constitutional separation of powers does not apply in the city, and that the Chief Executive is superior to the legislature and judiciary. Those who are hardened and numbed to decades of Communist apparatchiks’ Tremble-and-Obey outbursts perhaps roll their eyes and wonder ‘what is it now?’

Let’s remind ourselves that the whole ‘One Country, Two Systems’ principle is a logical impossibility. Free markets and a pluralistic society, and their prerequisites like rule of law and a free press, are incompatible with a Communist one-party state that must control everything. For these freedoms to exist in China means the end of the CCP’s monopoly of power, means not-going-to-happen.

(Analysts pondering the direction of Beijing’s future economic reforms can include full freedom of cross-border capital flows or of domestic capital allocation in the list of impossibilities. The regime can co-exist with such economic anarchy in Hong Kong because the Mainland is caged off from it, and it has its uses. Political control over Hong Kong is another matter.)

Officials in a Leninist structure suffer an extreme, almost allergic, reaction to the concept of separation of powers. Their angry insistence that the idea is not applicable in a Chinese/Socialist/etc context seems a case of protesting too much. The way Communist ‘people’s democracies’ superficially emulate legislative, executive and judicial divisions in their quasi-constitutions suggests a subliminal recognition (or envy?) of the integrity of checks and balances compared with totalitarian and primitive ‘rule of man’.

So it’s a touchy subject. And Beijing’s officials have spluttered and ranted about it in Hong Kong before. It is not that Hong Kong’s separation of powers undermines Communist Party sovereignty; the Basic Law limits the legislature’s influence and allows Beijing to override the courts through ‘interpretation’. The problem seems to be frustration with local people’s inability or refusal to keep up as Beijing clarifies the reality of the post-1997 arrangement: namely that it really means ‘One Country, and One System that encloses a Subsidiary System for Hong Kong’.

Liaison Office boss Zhang Xiaoming’s comments came at a conference marking the 25th anniversary of the Basic Law. He saidthe Chief Executive, being accountable to both Hong Kong and Beijing, has a position above all three branches in the city’s government. I get a ‘been here before’ flash. Yes, it sounds like the Catholic Church’s line on the Holy Trinity, as I understood it in convent school many years ago: it makes sense if you accept sacred mysteries that can’t – to you – make sense.

Hong Kong Justice Secretary Rimsky Yuen seems to back me up here. He tells Xinhua that the Basic Law ‘cannot be observed and interpreted from a single perspective’. This raises the possibility that Beijing’s officials can and do sometimes view it from Hong Kong’s perspective, which is unlikely; or that they do not ‘observe and interpret it’, which is probably a requirement of the job.

Are Zhang’s statements aimed at his bosses in Beijing, while Rimsky’s are aimed at a local and international audience? Clumsy – but the fact that both come through official channels suggest that they were coordinated. Maybe the Liaison Office needs to convince its bosses in Beijing that Operation Hong Kong-into-Tibet is rolling forward with great success, while Rimsky is reassuring the rest of us that it’s business as usual and the courts are still essentially independent.

It’s no use asking anyone else. Pro-establishment lawmaker Regina Ip points out that the courts are still independent – implying that Zhang’s remarks can respectfully be ignored – while pro-democrats express shock and horror in a way that last convincingly spread alarm in, maybe, the 1990s.

All we know is that the co-existence of these two systems within the same sovereign state is a life-or-death imperative for Hong Kong, yet a constitutional impossibility for the CCP. Hong Kong has to assume (or pretend) it exists and does work, while Beijing’s officials have to deny it is there at all. It would be too insular to see this as about how free Hong Kong fits into Communist China; it’s about how Beijing’s one-party state fits into the 21st Century world. Just another day in the great ‘contradiction’, and Hong Kong is at the sharp end of it.

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