What’s In a Preamble?

My posts have been fewer lately and part of that is due to the fact that work has been quite busy, but a significant part of it is that I am now based in Hong Kong and not only have a different perspective on the mainland, but am constantly bombarded with thoughts about how this city has changed since the handover nearly 20 years ago.

The other day a new political party was created, the Hong Kong National Party (HKNP).  It’s a big deal that any corner of Chinese territory has political parties, especially when a new one is created that calls for the eventual independence of Hong Kong.  Of course Hong Kong’s freedoms are protected by the Basic Law, the mini-constitution that governs Hong Kong until 20147 or for 50 years after the 1997 handover.  The centerpiece of the Basic Law is “One country, two systems”, which guarantees that Hong Kong gets to maintain its rights and freedoms during this period.  Yet, we’ve witnessed a slow, but steady erosion of this bedrock tenet of the Basic Law as the Chinese government seeks to exert more and more influence over the city.

With the creation of the HKNP, “One country, two systems” is further tested because while the creation of such a party should be acceptable under the Basic Law given that freedom of speech is protected, China is claiming that it actually undermines the Basic Law.  What do you think the Chinese government is using to back up its claim?  The first article of the Basic Law that states that Hong Kong is an “inalienable part of China”, yet this same document is supposed to protect Hong Kongers from Beijing’s ever present heavy hand and enshrine certain freedoms for Hong Kongers that do not exist on the mainland.  So who is right?

Its hard to say in the realm of constitutional interpretation.  It’s not like China, or Hong Kong for that matter have a rich tradition of constitutional interpretation.  When there are conflicting provisions within the same document, you then have to look at the intent of the drafters.  The Basic Law was drafted by China, but based on the Sino-British Joint Declaration, so you can pretty easily guess who stipulated what in the document.  The Chinese insisted on the inclusion of this provision and the Brits probably saw its inclusion as worth it since so many other freedoms were going to be protected after the handover.  As a former lawyer and someone who spent a lot of time reading case law about statutory interpretation, I am still not sure who wins when one party hangs their case on an opinion asserted in the document and the other side relies on the actual rights enshrined in the document. Making things more complex is the Chinese government’s reliance on the Preamble to the Basic Law that states “Hong Kong has been part of the territory of China since ancient times . . . .”  This statement combined with Chapter I, Article I’s assertion are what Beijing is using to shut down the creation of the HKNP.  The other side argues that Hong Kongers have freedom of speech and association and that such freedoms are “inviolable” in Chapter III, Articles 27 and 28.  The creation of a new political party would appear to be protected by these guaranteed freedoms and their call for independence is merely speech.  It would be different if they were breaking the law in calling for independence, but talking about it is not as clear-cut.

So where do things go from here?  That answer is not so obvious.  Or perhaps it is.  I venture that there will be some delay in the creation of the party.  At the moment, the Hong Kong government has not approved the party’s registration.  The party will agitate for inclusion and the Hong Kong government will hem and haw, but ultimately Beijing will exert quiet pressure to prevent the formation of the party.  What Beijing does not fully get, or perhaps it does and is waiting for this moment, is that the people and ideas that led to the formation of the HKNP are not going to go away.  This move is just another step in the emergence of a Hong Kong political identity that is separate from that of the mainland and it only portends more rough waters ahead for Hong Kong – China relations.