Sub-sovereignty is a necessary evil

If the 1999 Right of Abode case was the first debate on the autonomy of the HKSAR, the current debate is the second. This time, the discussion touches upon the external autonomy of the SAR.


Realpolitik Operation of International Law

Public international law operates on the basis of Darwinist realpolitik. No matter how vehement the protestations of idealists over the centuries, international law is a “winner takes all” and “first speaker” legal arena. Stephen Krasner even went as far as to comment that sovereignty is an “organized hypocrisy” in describing the oxymoronic nature of the concept in the post-Westphalian era. The USSR, in the course of negotiating with the US on founding membership of the UN, requested that all 15 Soviet Republics become member states. With the threat of its counterpart doing the same, Stalin withheld his much fantasized idea. Therefore, it was quite comical when it came to the author’s attention that someone had used “sovereignty” to criticize his own countrymen, whose late Qing ancestors were traumatized by the same pretext in the 1844 Opium War and the 1900 Boxer Rising. Genuine patriots should be more sensitive with this taboo.

Celestial Court under Heaven

Equality has never been our world view. Whether justified or not, China has claimed to be the celestial court under heaven. John Schrecher observed that the term “sovereignty” had mostly been used when the Chinese state was weak (i.e. in 1909 - 2 years before the Republican revolution). States have been flexible with the operation of “Equality” (“Compatibility”). if not, there would have been some faux pas. Deng Xiaoping was the vice-premier of China when he visited the US in 1979, ten years later, Comrade Deng, in his civil capacity, met General Secretary Gorbachev in Beijing. Also, it was not the GOP chairman met Secretary Gorbachev in the 1986 Reykjavík Summit. Nor would Colonel Gadaffi of Libya have been greeted by military officers when he paid foreign visits. Should the principle of equality be enforced in such a stringent manner that Manila would have no compatible counterpart to entertain calls from Sir Donald Tsang, modern diplomacy would not be able to operate day in and day out. At the end of the day, international politics is built on the realist calculation of power, and thus respect.

Domestic Intervention

In recent years, the Chinese government has become ever more sparing in its use of the term “sovereignty” (Charlson 2005). If we were obliged to adopt a doctrinal analysis of international law, one would find that domestic affairs are not totally immune from outside forces. In Nicaragua v United States of America ( [1986] ICJ Reports 14), the ICJ laid down four major principles reflecting the view that foreign governments cannot intervene in the home state’s choice of political, economic, social and cultural institutions, or in its foreign policy making. Operationally, one state must not seek to intervene in another state’s political affairs, nor support separatist movements and topple other states. There are reasons for intervention, such as enforcing international treaties, intervening on humanitarian grounds, protecting life and property, and preserving the state’s reputation. In any event, provided it does not violate Article 4 of Chapter 2 of the UN Charter — which stipulates the principles of non-violence, no threat of force and no compromise of local jurisdictional powers — intervention may be legal. In such a case, helping the local legal enforcement authorities to investigate and adopting other necessary means to protect lives and preserve the dignity of a state are clearly legal.

Delegation of Powers

However, these propositions all depend on whether (1) the HKSAR can undertake the aforementioned types of state behaviour on behalf of its sovereign, i.e. the PRC; (2) the HKSAR’s action falls within the scope of its delegated powers in accordance with the State Constitution and the Basic Law; (3) ultra vires action taken by the HKSAR (in this case, calling Arroyo without proper authorization from the CPG) can be ratified by the CPG on an ex post basis (otherwise, it would still be unconstitutional).

Furthermore, which party can ratify such action? According to Articles 17 and 18 of the PRC Legislation Law, the NPC is entitled to repeal and amend local laws, self-autonomy ordinances, and unilateral ordinances of local provinces and regions. This legislation does not cover executive action taken by local governments, nor is it applicable in HK. Neither the Constitution nor the PRC Legislation Law includes any specific provisions on this issue. If the SC were to complain, Audrey Eu may have to seek a remedy from the Supreme People’s Court by requesting that it issue a judicial interpretation on this case. Should we seek approval from the President of the PRC? After all, he represents the state in its activities. Alternatively, should we look to the NPCSC — the state’s highest power organ, constitutionally— or turn to the State Council, which issued and offered the appointment letter to CH and Yam-kuen?

If one adopts the principle of proportionality or reasonableness, one may very possibly accept that the President of the PRC can call the president of the US directly, though the State Constitution only stipulates the “performing state activity” provision.

As for Article 13 of the Basic Law and the possible application of Article 151, this really depends on whether the CPG adopts a hands-off or hands-on management style. There would be no question of constitutionality should the CPG be obliged to take care of all details, as this would imply that Yam-kuen has no power to call, whether or not the call is answered, because it is ultra vires all along. In that case, the CPG may have to consider whether or not to ratify Yam-kuen’s ultra vires action. Should we accept that delegated foreign-related behaviour is subject to ex ante CPG approval, ex post ratification may be the only remedy capable of redressing the illegality. An example is the PRC Ethnic Autonomous Region Law, which empowers the regional government to partially enforce or cease enforcing the CPG’s directives after seeking the superior organ’s ex ante approval.

Another example of this is the US War Powers Act. The US President is the commander in chief and the power to declare war rests with Congress. According to this Act passed in 1973, the president can send troops after the US has been attacked or is under serious threat of force. The president is required to inform Congress within 48 hours, and if the proposed action is not endorsed by the Hill, the president must withdraw forces within 60 days.

Possible Application of the Common Law Principle

Had the court been able to adjudicate the case and adopt a judicial activism approach, “Callingate” would have been constitutional. This prediction is based on the premise of Minister of Home Affairs v Fisher ([1980] AC 319), which held that our mini-constitution should be interpreted in a generous and purposive manner. Yet this case merely involved individual liberty and did not touch upon executive action per se. In the case of Ma Wai Kwan, J Patrick Chan stated that the principle laid down in Attorney General of the Gambia v Jobe ([1984] AC 689) and R v Sin Yau-ming ([1992]1 HKCLR 127) can be adopted to interpret the Basic Law. The Court of Final Appeal clearly stated in the Ng Ka Ling case that the Basic Law is a “living document” aimed at coping with changing circumstances. The courts must therefore avoid interpreting the law in a literal, technical or parochial manner. Should we have the luxury of the local courts adjudicating the issue, “Callingate” would not be found to have contravened Articles 13 and 151 of the Basic Law. Nonetheless, the foregoing discussion merely represents the author’s hypothetical projection which will not be tested in practice.

The Politics of Law

From the political perspective, Beijing would be best advised to act generously by allowing the demoralized chief executive to make the call when Hong Kong’s “subjects” are under threat overseas. Legally speaking, to transplant the agency law principle of commercial law, Yam-kuen was the agent of necessity who did the necessary thing (though it was ultra vires per se) in the case of absolute imminence, albeit without proper authorization from Beijing. Even under such circumstances, the court would perceive it as a legal and reasonable delegation and exercise of power under the doctrine of necessitous intervention.

In conclusion, “Callingate” was reasonable, proportionate and necessary.