You can't handle the truth; China CAN!

“You can't handle the truth."

        Colonel Nathan in “A Few Good Man”

如果你不能夠承受真相，就不要問。當今的中國，有計﹗

2009年底一宗群眾事件，雲南省委宣傳部副部長伍皓把全國的眼球吸引到雲南。伍皓主動上網答覆網民，省委宣傳部更下發了一個通知，禁止給群眾貼上一向慣用的“不明真相”“別有用心”等標籤。類似的詞在香港七一的時候，我們都聽過。

這些辭彙給人官本位的感覺，視群眾為矛盾(希望仍然是人民內部矛盾吧)﹗。雲南省委宣傳部進一步透過建立網絡新聞發言人和媒體義務監督員等舉措，伍皓又以宣傳部官員的身份，施行“新聞新政”，嘗試推動黨和政府的信息公開與透明讚。這些努力結果如何﹖先看看這宗群眾事件的來龍去脈。

二零零九年八月二十六日，雲南省陸良縣一煤礦在施工過程中與當地村民群眾發生衝突，八名村民、三名煤礦企業員工和七名公安警在衝突中受傷住院，十一輛警車被毀。事件發生後，縣委、縣政府立即啟動突發事件應急預案，處理村民問題。群眾提出的問題中，大部份得到解決。針對群眾要求每人每月補償六百元生活補助和每株莊稼五元賠償的訴求，

內地評論指陸良案例”也許會成為政府應付群體性事件的教材案例。

以民為本的執政理念，轉變了政府在處置群體性事件的慣性思維，但問題是人高皇帝遠的地方政府會否執行從來都是中國政府的結。主觀希望中國政府在處理，群眾事件會認同群眾的大部分訴求都是合理。

回說因事件”曝”得大名的伍皓，今年四月廿二日在北京人民大學演講時被學生扔總值三十大元的五毛錢紙幣。中國的進步總令人有追不上的感，這次事件，令我再次感到中國真的強大了，不是因為了國庫多了美債﹑日債，而是連我國都有Spin Doctor和敢說不的類社民連的大學生。國家真的變了。

(RTHK 07 Oct 2010/ Singtao)

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.

Happy Ending Is A Long Way Off

Comrade Wang Chen in Xinjiang

Happy Ending Is A Long Way Off



Being close allies in the world communist movement, from the world war period to the late 1960s, the People’s Republic of China cannot deny that it had imitated the Soviet management style over its nationality and ethnicity issues. The Soviet Union promulgated its Establishment Treatment in 1922. Two years later, the Soviet Constitution was passed. The Constitution recognized the right to self-determination for minorities, and, more importantly, the right to recede from the Union. In China, the Nationalist Government initiated the idea of regional autonomy as early as in the 1930s when the Chinese Communist Party gained control in some of its areas. Before the establishment of the People’s Republic of China, the Chinese Communist Party once proposed to adopt the Soviet’s style of federalism. Under the ‘bad influence’ of the Soviets and their immature theories, the Chinese Communist Party proposed rights to self determination, the establishment of a federal state, and the establishment of self-governments of various ethnic minorities based on self-recognition with the rights to break away (‘tuo li’) from China. In 1938, in the 6th Plenum of the 6th CCP Congress, that is, after Mao resumed its leadership after the Zunyi conference, Mao explicitly proposed the Ethnic Autonomous Region system with a view to solve the ethnic problems.

Both the Chinese and the Soviets made one fundamental mistake. They did not foresee, or, alternatively, they turned a blind eye to the rise of nationalism. In China, we had Fei Xiaotung’s thesis of ‘duoyuanyiti’ which was, to a large extent, a modified version of han-nationalism and pan han-chauvinism. In the case of the Soviet Union, its downfall could be attributed to the Stalinist violent governance, as well as the effort of Russianisation.

As commented by today’s Mainland official-scholar aka establishment intellectuals, without hiding their sorrows, the disintegration of the Soviet Union was brought about by the façade federal nature of the Soviet Constitution, together with the abortive reform policy introduced by Mikhail Gorbachev as the last straw of the once mighty Soviet Empire. The Soviet leaders had underestimated the issue of ethnicity and had erroneously identified the issue as one of class struggle, thereby resorting to the cliché class struggle method with a view to solve the problem. On the other hand, the Chinese leader diagnosed the separatist feelings of the Uighurs, the Mongolians, and the Hong Kong peoples as something which could be defused with a huge injection of capital (RMB) into the locals.

In China, central-local relationships, including that between Zhongnanhai and Hong Kong, tends to be more personal, patronage based and less institutionalized, as compared to systems of structured democracy. It is the patronage, instead of the institution, that binds the centre and the periphery. Arbitrated political decisions of the central leaders and the black box politicking hassle between the central and the local bureaucrats always override the interests of the autonomous regions. There is no formal institutional dispute resolution mechanism, such as the Supreme Court in the United States. The PRC Legislation Law does not have any provision which empowers the Government to settle conflicts or inconsistencies that exist in different legislation of different provinces. Neither is there any provision specifically designed for solving conflicts between the central and the local governments.

The current nature of regional governance, namely, unitary and bureaucratic authoritarianism, not only fails to forge a united front of ‘Greater China’, but even precipitates discontent and antagonism towards the PRC state and the nation of China. Recently, there have been separatist movements in Tibet, Taiwan, and Xinjiang. In fact, this phenomenon had once been extended to the Hong Kong SAR quietly. The Hong Kong Independence Declaration was widely circulated on the internet a few years ago, though not surprisingly, the movement died down in this ‘uniquely patriotic’ city without mass support. Deng Xiaoping’s innovation of the ‘One Country Two Systems’ in the early 1980’s was a model designed for dividing sovereignty and autonomy (external autonomy and internal autonomy). The concept may be a great idea. However, similar to many other noble ideas in China, its interpretation and implementation could end up in great distortion. With the current CCP’s regional governance policy in a unitary and bureaucratic authoritarian polity, the happy ending in Canadian Quebec is still a long way off.

Three Cheers for State Power

Three Cheers for State Power

With thunderous applause and loud cheers for the Beijing Olympic opening ceremony from all over the world, who can resist claiming honour as a Chinese? I doubt – not even for liberals who have been long time critics of CCP. Lam Hang-chi of the Hong Kong Economic Journal, for instance, could not deny the event as a recognition of wealth and ability of the State.
The glamorous demonstration of state power by our central government last Friday is highly instrumental. Thirty years ago, when the communist state was rusty and weary, Deng Xiaoping vowed to modernize the nation in four aspects. Thirty years later, with the golden opportunity to host an international event, it was hoped that 8888, supposingly the luckiest time in the era for Chinese, could mark the watershed success point in recent history. The immediate effect of the 4-hour show is encouraging – noises of ‘wow’ on the growing capacity of PRC as a party state, rallying peoples under the five stars flag, are rampant. Everyone’s eyebrows were raised about how far the state has reached.
In a confident democracy, a deliberate demonstration of state power is not common. The French military parade on the Elysees Avenue every 14th July might be an exception. The need is obvious. With 4 regimes after Napoleon yet no single victory in any war, it is not difficult to imagine the insecurity of the French.
The price to legitimize an authoritarian state is even higher. All the stools have to be managed. Yet, those who seek to please everybody please nobody. The recent implementation of the labour contract law was meant to be an honest broker between the evil capitalists and the vulnerable proletariats. While the pseudo “socialist” state attempted to delude itself and its subjects that it strived for the moral high ground to protect its workers, neither the employers nor the employees perceived the same.
The last minute reversal of the decision to support the compromise deal of import surge thresholds also reflected the paranoia. When it endeavored to use 15,000 performers to showcase the nation’s ancient history and its rise as a modern power, it did not have the courage to go for the long-expected Doha arrangement at the last moment – just because it could not take the risk of offending its 900 million of peasants. It was a declimax to the assertion of state power but it was still a calculated fair deal.
A Leviathan government can never walk side by side with a free society. However obscure, China has the most powerful bureaucracy in the world. No doubt, it can serve its people’s interest by satisfying their vanity with a perfect ceremony. At the other end, until 30 July 2008, it defied the spirit of fearless advocacy making lawyers liable to their statements in court, and also the right of the detained accused to privacy with their legal representatives. The sarcasm intensified when the omnipotent central state sought to set the wrong right by legislative amendment - granting lawyer’s immunity in court and accused the right to meet lawyers free from procuratorat surveillance – with the disapproval of the local criminal justice organs who refused to honour the amendment.
It is the obsession of state power that an atomic bomb and a hydrogen bomb are desired so much. General Chen Yi once said, “We prefer a nucleon (‘hezi’) to a pair of pants (‘kuzi’)”. This is one of the many experiences that Chinese have been preached by someone from the top that we should ‘stand up’ as if we were invertebrate.
Pundits put the phenomenon down to a cultural cause – the so-called ‘cultural institutionalism’ in the language of political scientists. Culture determines institutional choice. The late Li Shenzhi, Deng Xiaoping’s English secretary and Associate Director of the Chinese Social Sciences Academy, observed Chinese history to be a history of dictatorship. An Australian Historian, W.J.F. Jenner, in ‘The Tyranny of History: The Roots of China's Crisis’, attributed the root of China’s crisis to the Chinese populists’ obsession in state power. Whenever crisis arises, power centralization is always the answer. It works like a panacea to all the problems. A strong unitary state has long been taken as the icon of stability and prosperity amongst Chinese subjects (‘zimin’). Similarly, formidable military buildup and the successful hosting of an international event watched by millions acrossed the planet are viewed as tokens of ‘Strong Army, Rich Nation’.
Everyone is a patriot these days. One would for sure be proud of Director Zhang Yimou and his team for the incredible opening performance. One would be ecstatic if Yao Ming dunks on Kobe Bryant. The question is, putting this August aside, would one feel happier if the State respected workers’ rights by recognizing free labour unions, honoured right of the accused, and protected farmers from exploitation? Should this evolve from wishful thinking, the spontaneous applause filled in the air would definitely be accompanied by long-term appreciation, respect and trust.