The biggest challenge confronting central-local government relations around the world today is checking on local governments, and preventing the abuse of power by the central government.
In recent years, a common issue many countries face is an increasingly assertive central power at the expense of local autonomy.
Hence, the issue is balancing central-local relations and curbing central government expansion.
If we look at some of Hong Kong’s current controversies with this perspective, they would be more easily understood, and potential solutions may be found.
At the start of the debate on the Bill to amend the Fugitive Offenders Ordinance (“Bill” or “the amendment”), Chief Executive of the Hong Kong SAR government Carrie Lam stressed that the proposed amendment stemmed primarily from the murder of Poon Hiu-wing, and was not a mandate from the central government.
Ms Lam mentioned that she received five letters from the victim’s parents. Out of a sense of justice, she hoped that the Bill would help resolve extradition issues.
However, a subsequent fact-finding mission to Taiwan by pro-democracy members revealed a different version from that of Ms Lam. Even without the amendment, cases such as this could be resolved eventually.
The focus then shifted to the extradition to the Chinese mainland, which really worried Hongkongers. Almost two million people attended the anti-extradition bill protest on 16 June 2019.
Ms Lam denied that the Bill had anything to do with an order from the Central government right at the start.
Nevertheless, if what Ms Lam said was true, the initiative she and the Hong Kong Government took to amend the ordinance was that she had hoped to “kill many birds with one stone” through the amendment.
In addition to plugging legal loopholes, she had wanted to resolve long-standing extradition issues between Hong Kong and the Chinese mainland.
If that was indeed the case, Ms Lam would have ingeniously dealt with a very complicated judicial cooperation problem in increasingly challenging central-local relations.
If Ms Lam had received an order from the central government but was unwilling to speak out. She leveraged Poon Hiu-wing’s case to advance the central government’s order.
If the latter was the case, there would be a disastrous scenario in central-local government relations. When the central government hopes to promote a particular goal, the local chief executive disguises this decree as another decree to achieve the goal that the central government intends to achieve.
Once this execution model is carried out, the local chief executive becomes a de facto member of the central government and is not constrained by the structure of dual accountability wherein the chief executive is accountable towards both the central government and the local constituency.
Not only will the local government lose its governance capacity, it is discredited by the different stakeholders in the local community. This is a significant threat to the governing authority.
If Ms Lam was carrying out the order from the central government at the very beginning, her credibility would also be significantly damaged.
Lau Siu-kai, former head of the Hong Kong SAR government's the Central Policy Unit, pointed out that the Bill involved national sovereignty, national security, national reputation and the governance ability of the SAR, among others.
Pressure from the business sector led to some concessions in the Bill in the past. Both the Central and local governments would not concede on this. This acknowledged the interests and orientation of the Central government behind the scenes.
Is the Bill worth the trauma?
Why did the Central government want the SAR government to amend the Ordinance?
This was a result of multiple factors.
Firstly, the Central government hopes to more effectively crack down on corrupt officials in the mainland after the amendment. Some officials have escaped legal sanctions after fleeing to Hong Kong.
Secondly, the Central government hopes to capitalise on the amendment to extradite some dissidents or people with differing views from the official stance of the mainland or Hong Kong governments i.e., government critics. Once government critics (especially those with relatively moderate stance) are extradited to the mainland to stand trial and are sentenced, this would serve as a warning for others.
Thirdly, the Central government would be relieved to be rid of the existing case-by-case, lengthy and rather disorderly method of extradition and judicial collaboration.
From a legal perspective, there are some advantages to the Bill given increased trade and personnel exchanges between Hong Kong and the mainland.
Whether these are compelling reasons to undergo such trauma to amend the Ordinance still remains a question.
Firstly, cracking down on corrupt officials does not require amending the Fugitive Offenders Ordinance. After the amendment, the Chinese mainland government will still be unable to stop corrupt officials from fleeing
In the past, the Chinese law enforcement departments have successfully persuaded many corrupt officials living in Europe, the US and others to return to China or extradited them.
The path selected by many corrupt officials was to send their children to Europe or the US, then change their names and flee abroad to reunite with their families.
Based on the cases exposed recently, very few corrupt officials choose Hong Kong as their place of residence.
There are very few infamous corrupt officials wanted by the mainland government living in Hong Kong.
The extent to which the amendment could help the mainland’s anti-corruption campaign is therefore negligible.
Secondly, cracking down on dissidents is an obvious objective.
Any person criticising the government transferred to the mainland will likely result in a chilling scenario.
Many Hongkongers believe that extraditing those who criticise the government would be difficult as long as these do not commit a crime in the Chinese mainland. Such views are not applicable however, given that wrongful conviction is still a very common occurrence in the mainland today.
Many who criticise the government in the mainland (even some who do not participate in social movements often) have been imprisoned as well.
Thirdly, the routine extradition of criminals would be the Bill’s greatest achievement.
However, both Hong Kong and mainland governments have little evidence to prove the urgency of this Bill.
Elsewhere, both Hong Kong and the mainland governments lack evidence to prove that Hong Kong is a “haven for fugitives”. The pro-government lawmakers in Hong Kong continuously emphasise that the amendment of the extradition bill is associated with the fact that Hong Kong is a haven for fugitives; however, it is not a solid statement.
Hong Kong should prudently handle foreign relations as China-US relations deteriorates
If the Bill were passed (The Bill has been on hold due to massive protests in the city in mid-June 2019), Hong Kong would most likely experience the following changes.
Major developed nations would re-examine their extradition treaties with Hong Kong. The US, Germany and others will very likely abolish theirs with Hong Kong. The governments of these nations are concerned that Hong Kong would become a bridge for the mainland Chinese government to extradite relevant persons.
This has triggered concern and panic among citizens in developed countries. The most fundamental difference between Hong Kong and the mainland is rule of law (the cornerstone of “one country, two systems).
After the passage of the Bill, Hong Kong’s rule of law ranking would decline sharply. Hongkongers are also proud of their press freedom.
However, the indicators associated with freedom of press reveal that Hong Kong is declining in this aspect. A reason for a decline in the press freedom index is the political intervention of the Central government.
Press freedom and rule of law are interrelated. Hong Kong’s press freedom and rule of law will deteriorate simultaneously. Some in Hong Kong may feel that this is the “pot calling the kettle black”, and that press freedom and the rule of law are worse in the mainland. But Hong Kong’s current state of development is definitely a cause for serious concern in the future.
Against the general backdrop of deteriorating China-US relations, Hong Kong, which is “neither the East nor the West” (or both the East and the West), should be prudent when it comes to handling its relations with the outside world. Discussions about Hong Kong as a separate customs territory are already well known in the English-speaking world.
Recently, I have been told, during a conversation with a senior Chinese studies expert in Washington DC, that many in DC believe that Hong Kong is increasingly losing its autonomy, and its neutral position is being challenged. Once the turning point is reached, Hong Kong will lose its separate customs territory status.
Political leaders need to reflect and not play a role in the deterioration of the rule of law in Hong Kong
As discussed, Hong Kong and many countries in the world are currently confronted with a similar situation - after the central government expands its power, central-local relations are in a dilemma.
Hongkongers must think about how they are to seek a balance in today's changing world landscape. Hong Kong’s political leaders should also examine themselves, and not be instrumental in the deterioration of the rule of law and press freedom in Hong Kong, or they will put themselves and their future generations in a quandary.
This article was first published here.
If you’re interested in reading such content, subscribe here.