Kevin Carrico: Basic Law is Basically Garbage (基本法基本係垃圾)

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摘要:香港與中華人民共和國不同,係個守法社會。可悲者,香港人尊重法律反被人用來侵犯他們的憲法權利。香港法律制度用來強迫港人服從殖民大國,港人與其同這套食人制度合作,不如投資時間建立真正民主的法律制度和文化,反映港人意願,從而保障港人權利(曾焯文譯)。
Excerpt: Hong Kong is a law-abiding society, unlike the PRC. Tragically, the Hong Kong people’s respect for the law is being deployed to violate their constitutionally guaranteed rights. It is well past time to stop cooperating with a legal system that is used to force submission to a colonizing power, and to dedicate time to building a genuinely democratic legal system and culture that, by reflecting the will of the Hong Kong people, in turn protects the rights of the Hong Kong people.
Full Text: “The principle that the main body of Hong Kong people administering Hong Kong are to be patriots runs through the requirements regarding the Chief Executive, and the composition of executive authorities, the legislature, and the judiciary stipulated in the Hong Kong Basic Law. One of those important requirements is: the Chief Executive, principal officials, members of the Executive Council, members of the Legislative Council, judges of the courts at all levels, and other members of the judiciary must uphold the Hong Kong Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China.”
-Excerpt from Interpretation of Basic Law Article 104, People’s Republic of China National People’s Congress, November 2016
There are, generally speaking, two types of legal systems in this world: legal systems that place limits on the powerful and protect the people, and legal systems that place limits on regular people to protect the powerful.
Law in the People’s Republic of China is undoubtedly of the latter type, insofar as the legal system unwaveringly serves the interests of the ruling cabal. Even after decades of “reform” and endless sloganeering about “rule of law,” the Chinese government continues to engage in rule by law, prosecuting citizens for political crimes, granting immunity to people with the right connections, and even going so far as to extra-legally detain hundreds of the country’s lawyers in a massive operation ongoing since July of 2015. Such activities, which violate basic human rights and block the development of a rule of law system, are then given a false veneer of legitimacy by being enacted within a self-referential legal framework constructed solely by and thus for the Party-state, whose leaders are, so long as they stay on the right side of political struggles, thereby exempt from any legal repercussions for their behavior. Whatever the Chinese Communist Party does is then, no matter how horrid, still “legal” at the end of the day.
It is precisely because of the ongoing sad state of legal affairs in China that the Basic Law, following Hong Kong’s tradition of rule of law, was expected to be a law of the former type: it was to place limits on those in power after 1997 and help to guarantee the rights of the people of Hong Kong. Towards these goals, the Basic Law promises many beautiful things to the Hong Kong people: equality before the law, the right to stand for office, the right to vote, and freedom of speech, press, association, assembly, demonstration, communication, conscience, and religion. The Basic Law thus theoretically provides a number of important protections.
Yet a law is more than a set of promises. These promises must be fulfilled within a legal system, and can only ever be as good as this system. For anyone familiar with the shortcomings of the political and legal system in China, Chapter VIII of the Basic Law on interpretations of and amendments to the law is particularly ominous. Article 158 states, “power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress.” Article 159 of the Basic Law further states, “power of amendment of this Law shall be vested in the National People’s Congress.” As a result, a law that should place restraints on an overbearing state power that has a longstanding record of violating human rights and denying basic human dignity in fact gives, in the end, the final authority to interpret and amend this law to that same power.
If the Basic Law is imagined as a means of protecting Hong Kong’s way of life, it is immensely contradictory to hand over the final right of interpretation to the greatest threat to that way of life. There are no checks or balances: just a blank check, under the guise of a law, for the CCP colonial regime to treat Hong Kong however it pleases, even violating the rights guaranteed in the Basic Law (e.g. the right to stand for office) under the pretext of “defending the Basic Law” (e.g. blocking ever more candidates from standing for office).
Missed Lessons from Tibet
Anyone familiar with modern Chinese history could have predicted the troubles that have emerged from the NPC’s right to final interpretation of the Basic Law, insofar as this self-referential framework places no substantive constraints on a control-obsessed state power in dire need of constraint.
Promises closely resembling those of Hong Kong’s Basic Law were made to the Tibetan people in the Seventeen Point Agreement for the “Peaceful Liberation of Tibet,” signed between the Chinese and Tibetan governments in 1951. In this agreement, the Chinese side promised that it would not alter Tibet’s political system, would not alter the functions and power of the Dalai Lama, would protect the religious beliefs, customs, and habits of the Tibetan people, and would leave local matters to be determined by the local people. In an arrangement that will undoubtedly sound familiar to the people of Hong Kong, the Chinese side promised that it would only oversee Tibet’s external affairs and defense.
Yet such promises are of little value without checks and balances to ensure their proper functioning. What checks were in place in Tibet? None. The contradictory nature of a coerced agreement between fundamentally unequal powers without effective checks can be seen in the article guaranteeing Tibet “regional autonomy,” which puzzlingly reads as follows: “the Tibetan people have the right of exercising national regional autonomy under the unified leadership of the Central People’s Government of the PRC.”
Here, “autonomy” enters the revered communist lexicon of inspiring ideas that have never been manifested in reality, like “liberation.” The Tibetan people’s promised “autonomy” has since been constrained within a completely non-autonomous system under the obsessive control of the central government, making the former Tibetan nation the least autonomous place in all of China. Over six decades later, Tibet is an open-air prison colony where no Tibetan can speak freely, nor even mention the guarantees provided for in the Seventeen Point Agreement, nor even mention the Dalai Lama, supposedly protected by the Agreement, for fear of being imprisoned or simply disappeared.
A legal agreement requires sincerity and respect for the law from both sides. Both are completely absent in the Chinese state, which understands only power and domination.
Beyond the Basic Law
“All Hong Kong-ers must support and uphold the Basic Law.” In a rules-based society with respect for the rule of law, citizens are naturally expected to abide by the law. Yet, at the same time, the state is also expected to abide by the law: an expectation that is not being upheld in Hong Kong today, as certain sections of the Basic Law (e.g. Article 1) are being mobilized to cancel out the freedoms of speech, thought, and assembly guaranteed by the law.
The Chinese colonial regime is thus calling upon the people of Hong Kong to uphold the Basic Law while the colonizers violate it repeatedly, and interpret it freely as suits their needs. This approach combines two approaches to the law. On the one hand, by holding the power of final interpretation and using this power increasingly frequently, the Chinese government has transformed the Basic Law from a law that protects citizens’ rights into a PRC-style law that protects the government’s interests. On the other hand, by declaring that everyone must support and uphold the Basic Law, the Chinese regime is ideologically deploying Hong Kong’s history as a rule of law society to demand obedience to this completely arbitrary law, all while continually flouting the protections provided by this law.
As a result, a law that has been presented as protecting the Hong Kong people’s hard-earned rights from the rights-abusing Beijing government has been transformed into a law that dresses up the denial of rights as simply a matter of “abiding by the law.” The Basic Law is in effect being ideologically weaponized by the colonial Beijing government and its local servants to elicit submission to that which otherwise could not and would not be accepted, leaving people with a false choice of either “violating the law” or submitting to China’s continued colonization.
With no effective checks on the PRC’s power through the Basic Law, the last existing check is the Hong Kong people. It is, then, time for the people of Hong Kong to say publicly that they don’t support the Basic Law: if you don’t support the Basic Law, let the people around you know, young and old. As ever more people step out and voice their opposition to the Basic Law as an ideological trick imposed by the PRC colonizers, the time will eventually come for the Hong Kong people to have a genuine public constitutional consultation to draft laws for a future Hong Kong republic. And then, the time will eventually come for ever more Hong Kong people, day by day, to recognize and abide by these new laws in their daily lives, until the day that the Basic Law fades away as a temporary insult to this city’s great legal system.
Hong Kong is a law-abiding society, unlike the PRC. Tragically, the Hong Kong people’s respect for the law is being deployed to violate their constitutionally guaranteed rights. It is well past time to stop cooperating with a legal system that is used to force submission to a colonizing power, and to dedicate time to building a genuinely democratic legal system and culture that, by reflecting the will of the Hong Kong people, in turn protects the rights of the Hong Kong people.


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