A Paler Shade Of White

The Greek philosopher Plato is credited with being first to coin the expression “Beauty lies in the eyes of the beholder”.

It is a pity he passed away so long ago as we could have used someone with his perspicacity to help us reach a fair judgment of the white paper produced recently by the State Council on the practice of “One Country Two Systems”.

The Bar Association and some political groups have attacked the white paper, claiming (among other things) that it undermines judicial independence and seeks to claw back some of Hong Kong’s high degree of autonomy as prescribed under the Basic Law. Zhao Zi Yang’s secretary Bao Tong was even reported as claiming that publication of the white paper was a breach of the 1984 Sino British agreement on Hong Kong’s future.

The ferocity of this houha has caused me to go back and re-read the whole of the Joint Declaration, and its appendices, and I have read the whole of the white paper no fewer than three times. (We are all of course now experts on the Basic Law itself.)

And I feel bound to say that my conclusion is much of the criticism of the white paper is greatly overblown.

My copy of the English version – kindly supplied by a top barrister and Senior Counsel -- runs to 36 pages: the first 22 cover the background of the Joint Declaration and the Basic Law, and all the developments in Hong Kong since the 1997 handover; the next eight pages deal with the juxtaposition of One Country and Two Systems; the final six pages quote statistics and give sources for much of the information in the main body of the paper.

Now it would be a valid criticism of the first section to say that it looks at our first 17 years since the handover through rose-tinted spectacles. There is no room to mention the great march of 2003 and the withdrawal of Article 23 legislation, for example. But governments are generally keener to talk about their successes rather than their failures. Who isn’t?

But certainly it is a solid explanation of how the Joint Declaration gave rise to the Basic Law and it is unequivocal on continuation of our legal system. “The common law and relevant judicial principles and systems previously practiced in Hong Kong, including the principle of independent adjudication, the principle of following precedents, and the jury system, continue to apply” it reads in one place. “When adjudicating cases, the courts of the HKSAR may refer to precedents of other common law jurisdictions, and the Court of Final Appeal may as required invite judges from other common law jurisdictions to sit in the Court of Final Appeal” it says in a later section.

What the second section boils down to in essence is quite simple: One Country Two Systems is an integral whole. You start with the one country and that is how you get to two systems, it is the only route. Our high degree of autonomy, which allows us to adopt a different system, does not spring from out of the blue, it is derived from the Basic Law, which in turn came from the central authorities of the one country. It is patently true, some people just don’t like to be reminded of it. Perhaps the tone of this section is a little strident.

Most of the criticism centres on one part of the second section which talks about the executive, the legislature and the judiciary having some responsibilities in common. It is claimed that this is tantamount to making judges part of the government, thereby destroying judicial independence. It does not. The plain truth is that they are all part of the governing structure of our community. This is recognised in the west which talks about a balance of powers between the three estates (Monarch, Parliament, Judiciary in the UK for example. In the US it is the executive, Congress, and the Supreme Court. The media is sometimes referred to as ” the fourth estate”.)

We are approaching a very important tipping point in our history when we need to reach a broad consensus on how to move forward with political reform. It is a time for calm reflection. It is right that we should be concerned to protect our freedoms and way of life, and alert to factors which might threaten them.

After all it was also Plato who said “The price good men pay for indifference to public affairs is to be ruled by evil men”.

But we should preserve our energy for real threats, not waste it tilting at windmills.

Mike Rowse
email: mike@rowse.com.hk