Part Three : The New HKSAR

3.0 C.H.Tung, the First Chief Executive of the HKSAR

"When I am in Hong Kong, I keep reminding everyone that it's 'one country'; when I'm in China, I keep reminding everyone that it's 'two systems'." C.H.Tung

C.H.Tung, (His given names mean "Build China") a Shanghai native, studied in Liverpool University in Britain, worked in the US prior to running his father's Shipping company Orient Overseas and bringing it back from near ruin with the help of a $120 million Beijing-backed loan through Henry Fok, a local Tycoon. From debts of $2.6 billion in 1985, he turned it around and reported a net profit of $65.2 million in 1996. Tung fled from Shanghai to Hong Kong in 1949 when the Communists came in, at the age of 12.

He has been on Patten's cabinet at the same time as a cochair of the Preparatory Committee, set up by the Chinese to help with the transition from British to Chinese rule. This ability to work in two worlds should be an advantage, although his is a difficult job. His critics note that he has endorsed Beijing's plans to throw out the democratically elected Legislative Council and have replaced it with a provisional (selected) one. Obviously, Hong Kong cannot have a high degree of autonomy if the Chief Executive stands on the side of the Chinese authorities. If he is too unresponsive to calls for democratic freedoms and electoral reform, he will alienate the public and this may lead to unrest. But he must also retain the trust of Beijing - a delicate balancing act.

Tung was overwhelmingly selected (not elected) by a pro-Beijing 400 member Selection Committee. This committee also selected the 60 members of the Provisional Legislature (forced to do so across the border in Shenzhen). This is expected to change in May 1998 when the first Legislature will be elected under the new HKSAR government. Not all of the 60 legislative councillors are to be elected, but rather just 20. A poor start to a new era.

C.H.Tung inherits a former colony whose economic success is the envy of the region, but whose politics and freedoms are threatened by the events of 1989 in Tiananmen Square. Tung stood up to Beijing by allowing criticism of Chinese leaders and the commemoration of the June 4 Tiananmen massacre (but only within"the law") and tried to persuade the people of Hong Kong to forget the event. This led to a great loss in confidence from the people of Hong Kong. To further exacerbate his difficulties, in June '97, Anson Chan, Chief Secretary hinted that she would resign if asked repeatedly to implement policies against her wishes. In an attempt to diffuse the situation, Tung then came out with exactly the same resignation threat as Anson Chan, a few days later.

3.1 The provisional legislative council

Most thought that the test for the new administration would be the provisional legislature's ability to interpret the Basic Law justly. Instead it was the very legality of the provisional legislature itself that was threatened.

The most serious violation of the Basic Law is the failure of the Preparatory Committee to establish the first Legislative Council, having instead a so-called provisional legislature in its place until elections, due in May '98. The absence of this legitimate law-making body can only serve to erode the rule of law. It is equally arguably appalling that after so many JLG (Joint Liaison Group) meetings, there was failure to reach agreement on the "through-train", that is to say that the democratically elected Legislative Council was replaced - by people the PRC have appointed. This "through-train", so often talked about, but not implemented for legislators, was however implemented for civil servants. Crucial to the complex administration processes of government.

In February'97, the British Foreign Secretary, Malcolm Rifkind invited China to contest the legality of the provisional legislature in the International Court of Justice, but was turned down by Qian Qichen. It would appear that the new administration have already picked up the bad points of Colonialism (which Britain was trying to rid all memory of) - unelected representatives in power, being an obvious example. Governed by a system of appointed yes-men.

Inevitably, the legality of the provisional legislative council came under fire in the Courts. After much earlier denial, the Government's top lawyer admitted on 25 July'97 that the provisional legislature did not fulfil requirements for the establishment of the HKSAR's first law making body. In order to be valid, the HKSAR's first legislative body must be elected from geographical and functional constituencies. In its defence, the government's Solicitor-General stated that the opinion of the Bench was irrelevant. "Decisions made by the preparatory committee and the National People's Congress are matters of Chinese Law. It is not for me and not for your lordships to second-guess the NPC". The three Court of Appeal Judges ruled that the provisional legislature was a valid law-making body, created as a necessary interim measure in order to prevent a legal vacuum, after the derailment of the "through-train". Mr Justice Gerald Nazareth said "This court has no jurisdiction to question the legality of the provisional legislature, that body having been appointed by the sovereign." Thus the HKSAR courts cannot challenge the decisions of the NPC. Hong Kong is once again a colony.

C.H.Tung told foreign passport holders in July'97 to renounce their passports if they wanted to run in next year's geographical constituency polls. Foreign nationality holders are restricted to 12 seats. This may breach the International Covenant of Civil and Political Rights. If someone renounces their nationality just for the sake of personal advancement, this may be seen as unethical.

By a vote of 38 to 9, the Legislative Provisions (Suspension of Operations) Bill was carried on 17 July 97, and thus labour rights laws were suspended including worker's rights to collective bargaining and a relaxation of restrictions of their funds. Independent legislator Eric Li Ka-Cheung said "It will give a wrong message to the public and the international community that the administration can do whatever it likes". This same labour bill, under review and suspended, was then scrapped completely by the government only a week later. The law protected union members against descrimination by employers. The Employment (Amendment) (No.4) Ordinance 1997, passed by the disbanded elected legislature allowed workers to be reinstated if they were sacked for joining unions and allowed them to make civil claims against their employers. Michael Ho of the Democratic Party noted that the scrapping of the law would further undermine the HKSAR's constitutional structure and reputation. The recent decision by the Government to return children to the mainland, overturning one of the provisions of the Basic Law only days into the new administration illustrates many aspects already about this Provisional Legislature : panic, when faced with a crisis; their ability to reinterpret the Basic Law as they wish; an inability to deal with the situation - but rather, send the problem away.

3.2 Human Rights
"Hong Kong is a city of refugees that wants to maintain its way of life", said Y.K.Law, director of Human Rights Monitor.

"The issue is not about human rights...the issue here is really getting it right between balancing individual rights and the good of the public" C.H.Tung on repealing the two Ordinances on Societies and Public Order.

C.H.Tung in January '97 said that the reasons for dismantling the Societies Ordinances and the Public Order Ordinances (human rights legislation) was because they were a violation of the Basic Law, quoting Article 160. However this states that laws in force in Hong Kong shall be adopted in the HKSAR except those that the "Standing Committee of the National People's Congress declares to be in contravention of this Law". No other explanation was offerred. Article 39 makes clear that the rights and freedoms shall not be restricted by laws which contravene the International Covenant on Civil and Political Rights. The are of course wider implications. Will Tung Chee-hwa allow the Mainland rulers in the future to simply overturn laws at their will?

The former Attorney-General for Hong Kong said in April '97 that the principles adopted at a human rights conference in 1984 as saying "national security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order". He added that "national security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial independence against force or threat of force". As expected, the media reported an erosion of public trust in Tung after this.

In May '97, Tung Chee-hwa said he wouldn't allow incidents such as the Tiananmen Square massacre of 1989 to happen in Hong Kong, adding that demonstrations would be allowed. In June '97, Tung Chee Wah asked the Hong Kong public to hang up what he called the "June 4 Baggage" This seriously back-fired for him, and left many with the impression that he was indeed Beijing's man. 55,000 people turned up for the candle-light vigil - and many hope that this was not the last. On 1 July 1997, during the handover celebrations, there was a rally for Democracy called by Martin Lee, where more than 3,000 people attended. Clearly there is a desire for democracy in Hong Kong by its inhabitants.

Members of the April 5th Action Group were barred by police from peacefully demonstrating too close to the Foreign Ministry Office in July '97. They were declaring their support for workers in Sichuan who were reportedly beaten by mainland police for staging a protest when their company went bankrupt. This illustrates how the police are abusing their powers and interfering with protestors rights.

Protestors today demonstrate for more democracy, condemn China's disregard for Human Rights, urge the release of imprisoned dissidents, opposed the selection process of the Chief Executive and the formation of the Provisional Legislature, etc, etc. Will Hong Kong continue to see street demonstrations as a part of its culture?

Amnesty International has commented on how several European nations have let China escape scrutiny for its human rights record and have earned applause from China and secured lucrative business contracts. If this trend is to continue it will spell trouble for the international system for protecting human rights. Its impact on Hong Kong could be disastrous.

3.3 The Press and Free Speech
"Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike." Article 27 of the Basic Law.

In June 1996, Lu Ping, the Director of the Hong Kong and Macau Affairs Office, laid down the ground rules for the press : it can criticise China, object to their policies but not write articles that support Taiwan's independence, nor advocate "two Chinas". Tibet and Taiwan are definitely off-limits. He added ominously "If they really wanted to overthrow...the central government, that's a different matter". Qian Qichen has said that "The media can put forward criticism, but not rumours or lies." The key to his statement is "rumours". Exactly what the Hong Kong reporter, Xi Yang, was jailed for in the mainland. Article 23 of the Basic Law says that the SAR government should enact laws to prohibit any act of treason, secession, sedition, subversion against the central Government. Journalists already admit a form of self-censorship in fear of reprisals. There is a lack of in-depth of coverage of Human Rights, labour conditions and so on in China by Hong Kong reporters today.

3.4 Immigration
There are estimated to be 66,000 Chinese children waiting to come over the border into Hong Kong to be reunited with their parents. The Immigration (Amendment) Ordinance rushed through in July '97 on its first sitting states controversially that the mainland born children seeking permanent residency should be deported, and can only reside in Hong Kong after obtaining endorsement of their status by the Government. This ruling also has retrospective effect to 1 July 1997. The human rights group Justice Hong Kong denounced the legislation as a "panic response".

Article 24(3) of the Basic Law states that permanent residents shall be "Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2)". The categories (1) and (2) include Chinese citizens born in Hong Kong and those who have lived in HK for more than seven years before the establishment of the HKSAR. The Government's decision for retroactive legislation and denial of these rights is contrary to the Basic Law and the UN Convention on the Rights of the Child. Article 18 of the Basic Law states clearly that the laws in force shall be the Basic Law, the laws previously in force in Hong Kong and laws enacted by the SAR legislature. At least 100 lawyers believes this new "panic response" legislation breaches the Basic Law. It will be tested by taking the Government to court querying whether Article 24 of the Basic Law (status of a permanent resident and right of abode) can be modified by local legislation. Foreign nationals who have lived here for 7 years have the right of abode in Hong Kong and are permanent residents of the HKSAR. However, only Chinese nationals can obtain the HKSAR passport. Thus the many foreigners who have made Hong Kong their home and others who were indeed born in Hong Kong have no right to a passport and thus no nationality. Later, the British Government accepted its responsibilities and gave those eligible a British passport.


Introduction |||| Part One |||| Part Two |||| Part Three |||| Part Four |||| Part Five |||| Appendices