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Full text of "Freedom, Democracy, and Human Rights in Hong Kong since 1997: A historical perspective. : Bernard H.K. Luk. --"

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The American 



=i ASIAN REVIEW 



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An International Journal on Modern and Contemporary Asia 




)72 



Vol. XVIII, No. 1 
Spring 2000 



Canada-Hong Kong Resource Centre 



Qtft from 



Prof. Bernard Luk 



7 

American Asian Review Vol. XVIII, No. 1, Spring, 2000 



FREEDOM, DEMOCRACY, AND HUMAN RIGHTS 

IN HONG KONG SINCE 1997: 

A HISTORICAL PERSPECTIVE 



Bernard H.K. Luk 
York University, Toronto 



During the one-and-a-half decades before the United 
Kingdom handed over government authority of Hong Kong to 
the People's Republic of China on July 1, 1997, a good deal of 
international attention was focused on the "megaphone diplo- 
macy" around the constitutional development of the city state. 
The question then appeared to be how much Western-style 
democracy should be established in Hong Kong before and 
after the handover, with London wanting more and Beijing 
wanting less. Both supporters and critics of democratic 
reforms often took for granted that freedom, democracy, and 
human rights were British initiatives to bequeath a Western 
legacy to its former colony. The experiences and aspirations of 
Hongkongans themselves typically were not part of the inter- 
national discussion since Hongkongans were assumed to be 
politically apathetic.^ However, the developments in the Spe- 
cial Administrative Region (SAR) since 1997 cannot be under- 
stood without due regard for those experiences and 
aspirations. 

1 On the theme of the supposed political apathy of Hongkongans, see Lu 
Hongji, "Zhimindi jiaoyu yu suowei zhengzhi lenggan," Ming Pao, August 9. 
1996. 

Canada-II: 3 Kong RecciTce Centre 

1 Spadina Crescent, Rm. Ill • Tbronto, Canada • M5S lAl 



This paper will discuss issues and institutions of freedom, 
democracy, and human rights in Hong Kong, within the con- 
text of the longer term development of Hong Kong society and 
politics. 



The Backdrop: British Colonial Set-up and Chinese 
Authoritarian Milieu 

For more than a century after the British established colo- 
nial government in Hong Kong during the Opium War, there 
was very little constitutional development. The Executive and 
Legislative Councils were nominated or appointed by the gov- 
ernor, who in theory enjoyed almost absolute power in the 
government. There were no elections except in the Urban 
Council, which had very limited powers and was elected by a 
miniscule franchise. In the aftermath of the Second World 
War, Governor Mark Young proposed the introduction of 
elections to a municipal council with gradually expanded pow- 
ers. However, the Young Plan failed to materialize because of 
the opposition of the local British and Hong Kong Chinese 
ehtes and because of the Cold War. While most of the rest of 
the British Empire underwent democratization and 
decolonization during the 1940s to 1970s, Hong Kong retained 
the constitutional framework of a nineteenth-century colonial 
government up to the 1980s. The government was not consti- 
tutionally accountable to the governed. 

Administering ''on borrowed time in a borrowed place," 
the British had neither the desire nor the capacity to aim for 
absolute rule. Rather, they had a limited agenda, encapsu- 
lated in the policy of "positive noninterventionism," to do the 
minimum necessary to maintain social order and political con- 
trol, so as to generate the maximum economic benefit. Cer- 
tain parameters were set for the population in order to contain 
the potential for partisan conflict (i.e., between the Chinese 
Nationalist and Communist parties) or for anticolonial action 



(organized by either of those parties or arising from local frus- 
trations). A series of laws was made in the 1950s to tighten the 
preexisting control. For instance, the Education Ordinance of 
1953 and its subsidiary regulations prohibited any kind of 
political activity in schools, and any discussion of contempo- 
rary Chinese politics or of colonialism constituted a political 
activity. Other ordinances dating from the 1950s and 1960s 
gave power to the Government to close down a newspaper 
and imprison its publisher for a number of pohtical offences, 
required any association to register with the commissioner of 
poHce, and made it potentially a criminal offence for any nine 
unrelated persons to assemble on the street.^ 

These laws severely restricted the civil liberties and polit- 
ical rights of the people, and made for a highly authoritarian 
regime. Schools and textbooks were regularly inspected for 
political censorship, people were charged and convicted for 
illegal association or illegal assembly, and some were deported 
to the Chinese mainland or to Taiwan for political offences. 
On a few occasions, newspapers were prosecuted; there were 
more instances when they were fined or warned to remain 
within the permissible hmits. 

By and large, Hong Kong people grumbled and stayed 
within the law. In the general context of East Asia in the 
1950s and 1960s, Hong Kong still allowed more room for 
diversity of opinion and expression compared to the party dic- 
tatorships on either side of the Taiwan Strait. Being used to 
more stringent and arbitrary rule in the China of the emperors, 
the warlords, and the party dictatorships, many Hongkongans 
found credible the claims made by the local establishment 
media that Hong Kong was the "show window of democracy in 

2 A.E. Sweeting, A Phoenix Transformed (Hong Kong, Oxford University 
Press, 1993), 159. B. Luk, "Chinese Culture in the Hong Kong Curriculum," 
Comparative Education Review, 35 no. 4 (November 1991), 650-668. John D. 
Young, "The Building Years," in Hong Kong between China and Britain, M.K. 
Chan, ed. (Armonk. M.E. Sharpe, 1994), 131-47. Raymond Wacks. ed.. Civil 
Liberties in Hong Kong (Hong Kong, Oxford University Press, 1988). especially 
chapters 5-8. 



10 



the Far East." In fact, despite the restrictive laws, there was 
still plenty of space in the press and in daily hfe for free report- 
ing and discussion of Chinese politics. Hong Kong issues, or 
world affairs, so long as one did not advocate or organize for 
the overthrow of the Colonial Government. That freedom was 
fully appreciated and utilized. In Hong Kong, one could find 
the full spectrum of Chinese political and philosophical convic- 
tions represented in speech and in print, along with a plethora 
of Chinese and foreign religious beliefs. The diversity was a 
basic fact of life and of the popular image of what Hong Kong 
was about. 

Beyond this relative freedom of beliefs and expression, 
traditional Chinese ideas of hierarchical relationships and 
patriarchal authority still prevailed during those decades. Par- 
ents, teachers, and employers enjoyed power that was not to 
be disputed. Freedom from arranged marriage was still to be 
struggled for; physical punishment and verbal abuse from 
teachers was a daily occurrence in schools; employees were 
not protected from arbitrary dismissal or pay deduction, or 
from physical or sexual abuse by their bosses. Subordinates in 
any situation, especially women, often were victims. There 
was no appeal from such authority except to the "heavenly 
principles and the hearts of the people" {tianli renxin). 
Hongkongans in the 1950s and 1960s enjoyed a high degree of 
freedom, democracy, and human rights only relative to neigh- 
boring societies. 

In the quarter-century after the Second World War, Hong 
Kong was an atomistic society of refugees suffering under 
grinding poverty and social inequities. The anachronistic 
Colonial Government, while energetically trying to cope with 
the worst problems of shortages of housing, sanitation, and 
education, was ill equipped to handle the popular frustrations. 
Three times major riots erupted: in 1956, 1966, and 1967.-^ 

^ John D. Young, ibid. Teresa Ma, "Chronicles of Change. 1960s-1980s," 
in the 12th Hong Kong International Film Festival: Changes in Hong Kong 
Society through Cinema (Hong Kong, Urban Council, 1988). 77-82. Ian Scott. 



11 



The Star Ferry riots of 1966 prompted the Government to 
triple its education budget and review its social welfare pohcy. 
By the end of the 1960s, the Government had come to realize 
that its legitimacy to rule depended not on the "Unequal Trea- 
ties" signed in the last century with the emperors of China, but 
on what it could perform in that day and age for the people of 
Hong Kong. That realization, along with the coming of age of 
the children of the refugees, brought into being a new society 
and new government-people relations in the 1979s and 1980s, 
and fertile ground for democracy and human rights in the 
1990s. 



The Decade of Protests: Activists, Society, and Government 

The Communist confrontation and riots of 1967 were the 
last major upheaval in Hong Kong society. The 1970s saw a 
series of peaceful civil protests that gave rise to highly signifi- 
cant though informal changes in the way Hong Kong was 
governed. 

By 1971, Hong Kong had a local-born majority in the popu- 
lation for the first time in its history. The younger generation 
all had at least elementary schoohng, and an increasing pro- 
portion had secondary or tertiary education. They also had 
developed a sense of belonging to the city where they were 
born and bred and made contributions. They felt they had the 
right to demand Hong Kong's improvement. Since political 
independence was never an option for Hong Kong, and this 
was always known, their demands focused not on political 
power, but on matters of social and economic substance. Suc- 
cessive protests and strikes during the 1970s, spearheaded by 
university students, primary school teachers. Christian crusad- 
ers, social workers, nurses, and trade unionists, gradually 
changed the tenor of Hong Kong society, not only by making 

Political Change and the Crisis of Legitimacy in Hong Kong (Hong Kong, Oxford 
University Press. 1989), 81-106. 



12 



substantive gains, but also by creating a civil society within a 
plural community. The government developed in mutual 
accommodation with this expanding social space, so that while 
it retained political power and the formal structure of the old 
colonial regime, by the early 1980s, that power was exercised 
in a manner radically different from the early 1960s.'^ 

The protests and strikes of the 1970s were basically peace- 
ful and orderly. While many of them broke the laws of the 
time against illegal association and illegal assembly, they were 
characterized not by violence but by an increasing sense of 
purposefulness and self-discipline. In the process, Hong Kong 
became a less authoritarian and more open society, with a 
growing sense of freedom and human rights rooted in the com- 
munity itself.^ 

The decade opened with the Chinese language movement 
among university students, which successfully demanded that 
Chinese be made an official language along with English.^ 
This movement, which targeted a symbolic as well as func- 
tional aspect of British colonialism in Hong Kong itself, was 
followed by another anti-imperialist protest. The Diaoyutai 
movement over the transfer by the United States to Japan in 
1972 of a group of small islands in the East China Sea. which 

-* Ian Scott, ibid., 106-26. Nelson Chow, "A Review of Social Policies in 
Hong Kong," in Hong Kong Society: A Reader, ed. Alex Kwan. et al. (Hong 
Kong: Writers* and Publishers' Cooperative. 1986), 137-54. 

5 Elizabeth Sinn, "60-Niandai Lishi Gailun," in Hong Kong Sixties: 
Designing Identity, ed. Matthew Turner and Irene Ngan (Hong Kong: Hong Kong 
Arts Centre, 1995), 80-83. M. Turner, "Hong Kong Sixties/Nineties: Dissolving 
the People." ibid., 13-34. 

6 On this and the following movements: P.K. Choi. "A Search for Cultural 
Identity: The Students' Movement of the Early 70s." in Differences and 
Identities, ed. A.E. Sweeting (Hong Kong: Hong Kong University Faculty of 
Education, 1990), 81-107; Hong Kong Federation of Students. Xianggang 
Xuesheng Yundong Huigu (Hong Kong: Wide Angle Press, 1983); Lu Hongji, 
"Xianggang Lishi Yu Xianggang Wenhua," in Culture and Society in Hong Kong. 
ed. Elizabeth Sinn (Hong Kong: Hong Kong University Press, 1995). 64-79; and 
B.K.P. Leung, Perspectives on Hong Kong Society (Hong Kong, Oxford 
University Press, 1996), chapter 7. 



13 



were claimed by protesters to be Chinese territory, again was 
organized by university students and widely supported in the 
community. 

The anticorruption movement targeted institutionalized 
corruption in the Hong Kong police and other public agencies. 
Successful demonstrations organized by university students 
and church groups, involving tens of thousands of citizens, led 
the Government to establish the Independent Commission 
Against Corruption (ICAC) in 1974. to root out bribery in the 
police and other public sector agencies. The ICAC Ordinance 
also outlawed gift-taking by pubhc officials, thereby marking a 
break with a venerable Chinese tradition, and redefined the 
relationship between holders of Government office and mem- 
bers of the public. 

Throughout the 1970s, the Christian Industrial Committee 
and other church-related groups organized labor protests for 
less exploitative conditions, and encouraged the development 
of a labor movement independent of the Communist or 
Nationalist parties (whose labor unions in Hong Kong had 
been engaged in struggles against each other rather than for 
labor rights). A number of improvements to labor legislation 
resulted. 

A successful elementary school teachers' strike led to the 
formation of the Hong Kong Professional Teachers' Union 
(HKPTU) and to improved processes for management-staff 
relations. This was followed by nurses's strikes. The HKPTU 
became the archetype for other white-collar unions, especially 
in the public sector. Blue-collar and white-collar unionism had 
implications far beyond union membership. By raising the 
public specter of rightful challenge against arbitrary authority 
of the employer or management, the sense of submissiveness 
in society at large was reduced. 

The Golden Jubilee School affair of 1977-78 was the culmi- 
nation of nearly a decade of peaceful protests. The principal 
of the high school was discovered by the students and teachers 
to have embezzled school funds. Their protests led to disci- 



14 



pline by Government school inspectors, which, in turn, led to 
an escalation of protests. As the situation escalated over the 
year, the Executive Council (the highest decision-making body 
of the Government) invoked the Education Ordinance to 
close the school. The students and teachers then held a peace- 
ful and orderly public sit-in, which lasted for weeks, demand- 
ing a public investigation of their grievances and the 
reinstatement of their school. The community was split down 
the middle between those who supported the protestors and 
those who supported school authority. In the end, the Gover- 
nor appointed a commission of inquiry. The commission 
apportioned blame evenly among the director of education, 
the school authorities, and the protestors, but to a large extent, 
vindicated the protestors. The Government relented from its 
earlier decision, and allowed them to have their own school. 
In each of these instances, social protests were made 
through peaceful demonstrations (labeled "petitions"). Often 
the target of the protest was some aspect or policy of the colo- 
nial state itself. In many cases, the state made significant con- 
cessions to the protestors. Hong Kong society and its 
government both became more modern with a greater sense of 
belonging, of public participation, and of diversity of views and 
interests in peaceful debate rather than in violent confronta- 
tion. Numerous community groups and organizations 
emerged — professional and occupation groups as well as 
"pressure groups" — which advocated particular public poli- 
cies. Prominent among these groups were students', teachers', 
and social workers' unions. By the late 1970s, public forums 
and demonstrations were almost daily occurrences. Many of 
these were organized by the proliferating nongovernmental 
organizations; some led to the creation of such organizations. 
The community groups and organizations later became the 
nurseries for the prodemocracy political parties which 
emerged in the 1990s. Many of the leaders across the political 
spectrum of the 1990s had their first taste of public life as 
social activists in the 1970s. 



15 



The Government responded with what gradually became 
an institutionalized interface with the many activist groups. A 
protocol evolved for protests and demonstrations. While the 
ordinances against illegal association and assembly remained 
in the statute book, their application became more and more 
relaxed. Demonstrators were met not with riot squads or 
police harrassment, but with police escorts to direct traffic and 
with Government officials to shake hands and receive the 
"petitions." The Government broadcaster, Radio-Television 
Hong Kong (RTHK), began to organize weekly forums and 
daily phone-in programs to discuss issues which concerned the 
public. These discussions, which often became quite heated 
and could be very critical of the Government, were broadcast 
live. More proactively, the Government expanded its system 
of consultation committees to cover all aspects of public pol- 
icy, often coopting the vocal "pressure groups" to have their 
say at the committee table. It also published "green papers" 
for public debate on major policy initiatives, and took note of 
discussions in public forums and the press, as well as advocacy 
group submissions, when it reformulated its thinking in more 
definitive "white papers." 

Meanwhile, Government interference with the press 
became more and more rare, and pohtical censorship of text- 
books and of school work was greatly relaxed. The rule about 
"no politics in school" remained in the statute book, but dis- 
cussions regarding Chinese partisan poHtics and Hong Kong 
social and political issues took place frequently in high school 
history or social studies classes. The official syllabus of Chi- 
nese history in high schools, which during the 1960s concluded 
with the Republic Revolution of 1911, was extended by the 
1980s to cover up to the 1970s (and by the 1990s, to cover up 
to 1989), with evenhanded treatment of both sides of the Tai- 
wan Strait. 

In this way, the civil society which grew up during the 
1970s was institutionalized, and occupied ever-increasing space 
made available by the colonial state. While the constitutional 



16 



framework remained unchanged until 1985, the practice of 
government during the 1970s and early 1980s was less and less 
like the old colonial regime, and more as a locally-developed 
and increasingly open administrative state. In many ways. 
Hong Kong could be said to have been decolonizing without 
attaining a poHtical identity.^ 



Constitutional Development, 1982-97 

The introduction of district board elections in 1981 was a 
constitutional innovation initiated by the Government to inter- 
face further with the civil society. The boards were first 
elected in 1982 from a broad franchise, and although enjoying 
no real power, they were allowed to discuss any public issue 
that related to their districts. The Government promised that 
these elections would be followed in a few years' time by more 
elections to some of the seats in the municipal councils (i.e., 
the Urban Council and the newly created Regional Council), 
and then to a number of seats in the Legislative Council. Vot- 
ing for legislators would be by "functional constituencies" of 
occupational groups in 1985, and by direct elections in geo- 
graphical constituencies in 1988. 

As the British prepared for negotiations with Beijing over 
the future of the territory in 1982, they apparently felt the 
need for the people of Hong Kong to have a greater say about 
their own domestic affairs. The granting of elections at that 
particular point was a British decision. But it is important to 
recognize that the elections were not a gift handed out to a 
docile, quiescent, and apathetic subject population. Rather, 
they were the natural next step for Hong Kong after a decade 

^ Ian Scott, Political Change, chapter 4. Norman Miners, Government and 
Politics in Hong Kong (Hong Kong, Oxford University Press. 1982). Ambrose 
King, "Xingzheng Xina Zhengzhi," in Xianggang Zhi Fazhan Moshi, ed. 
Ambrose King, et al. (Hong Kong: Chinese University Press. 1985), 3-19. Steve 
Tsang, ed., A Documentary History of Hong Kong: Government and Politics 
(Hong Kong: Hong Kong University Press. 1995). 247-69. 



17 



of widespread and deeply-rooted social activism, to constitu- 
tionalize the hitherto informal interface between government 
and society.*^ 

The Sino-British Joint Declaration of 1984. which resulted 
from the negotiations in Beijing, seemed to Hongkongans to 
have implied recognition by both metropolitan powers of the 
constitutional promises made by the Colonial Government. 
The people's general acquiescence to the Joint Declaration 
was given with such promises in mind. However, as soon as 
the Joint Declaration was ratified and the Hong Kong Govern- 
ment made moves in 1986 toward direct legislative elections 
for geographical constituencies in 1988, Beijing objected and 
London withdrew support. During 1986-90. when the Beijing- 
appointed committees to prepare the Basic Law for the post- 
1997 SAR Government set to work, grey areas within the Joint 
Declaration were exploited by the drafters to reduce the dem- 
ocratic promises which many people in Hong Kong believed to 
have been made in that document. The Basic Law. which was 
promulgated by Beijing in 1990, allowed less room for democ- 
racy than the 1981 promises, and gave more power for the 
SAR Government to control the society than had been exer- 
cised in practice by the Colonial Government for more than a 
decade. Strong protests were lodged by many community 
groups during the Basic Law drafting process and after the 
promulgation. Some of the groups soon developed into poht- 
ical parties for elections in Hong Kong.^ 

The Tiananmen prodemocracy movement and massacre in 
1989 provoked massive popular responses in Hong Kong in 
support of the movement and against the repression. These 
responses grew at least in part out of Hongkongans' own frus- 
trations with the stalling of democratization since the ratifica- 

8 For details, see B. Luk, "The Rise of the Civil Society in Hong Kong," in 
Human Rights and Democracy in Asia, ed. Amitav Acharya, et al. (forthcoming). 

9 M.K. Chan. "Democracy De-railed," in The Hong Kong Reader, ed. 
M.K. Chan, et al. (Armonk, M.E. Sharpe. 1996), 8-37. Ian Scott, Political 
Change, 268-305. 



18 



tion of the Joint Declaration.^" The British Government was 
prompted to rethink its poHcy about democratization in Hong 
Kong. A Bill of Rights Ordinance was enacted in 1991. Sub- 
sequently, most of the Draconian laws, which restricted free- 
dom of expression, assembly, and association, and which had 
been apphed in an increasingly relaxed manner since the 1970s 
but remained in the statute book, were now repealed or 
amended in a more liberal manner. The law courts also struck 
down or reinterpreted a number of ordinances in accordance 
with the Bill of Rights Ordinance. Elections by both func- 
tional and geographical constituencies were held in 1991 for 
the Legislative Council, which, however, still retained a 
number of seats appointed by the Governor. In 1992, the last 
British Governor, Christopher Patten, presented a constitu- 
tional package which exploited the grey areas in the Basic Law 
to restore some of the democratic promises implied in the 
Sino-British Joint Declaration. Beijing objected vehemently 
to the package. After protracted and unsuccessful negotia- 
tions with Beijing, the package was eventually enacted by the 
Hong Kong Legislative Council. Elections were held under it 
in 1995. This was the first time in which all the members of the 
district boards, the municipal councils, and the Legislative 
Council were returned by elections. The years 1995-97 saw the 
most vocal and open debates of public issues in the representa- 
tive bodies. ^^ 

From 1985 forward, prodemocracy candidates consistently 
enjoyed wide support in the district board, municipal, and Leg- 
islative Council elections. In every election during the 1990s, 
they won more votes and more seats than any other group, 
although they never held a majority of seats because of the 

10 B. Luk, "The Beijing Democracy Movement and Hong Kong"s Students 
and Teachers," in The Other Hong Kong Report 1990. ed. R.Y.C. Wong, et al. 
(Hong Kong: Chinese University Press, 1990), 391-94. 

" Ian Scott, "Political Transformation in Hong Kong: From Colony to 
Colony," in The Hong Kong-Guangdong Link: Partnership in Flux, ed. R.Y.W. 
Kwok, et al. (Hong Kong: Hong Kong University Press. 1995). 189-219. 



19 



appointive and/or functional constituency elements in those 
bodies. Popular support for the advocates for democracy and 
civil rights was clearly evident. Many of the candidates of the 
prodemocracy parties won the support of the voters on their 
track records as social activists of the many protest or reform 
movements of the 1970s and 1980s. 



State and Society at the Time of the Handover 

By the time of the handover, Hongkongans had exper- 
ienced nearly three decades of widespread social activism, at 
first for specific ameliorations of conditions in Hong Kong, 
and then for democracy and human rights in Hong Kong as 
well as in China. The million-strong marches in support of the 
Tiananmen movement in 1989, and the sustained massive 
annual commemorations of the massacre since then, have cap- 
tured the imagination of the world. These demonstrations did 
not arise in vacuo. Rather, they resulted from the generation- 
old evolution of civil society. The elections to the representa- 
tive bodies, and the parties which were formed to contest 
those elections, only gave formal political expression to that 
evolution. Without deep roots in an assertive and activist pop- 
ulation, the package of last-minute elections introduced by 
Governor Patten would not have been able to survive the 
handover. However, the vibrant and maturing but amorphous 
civil society, without the political institutionalization brought 
about by the Patten package, also would not have been able to 
attain coherence. 

Another significant development during the Patten era was 
the greater transparency of government. While he introduced 
an all-elected legislature. Governor Patten presided over an 
executive-led government; he did not deviate from the earlier 
Hong Kong tradition or from the Beijing-London requirement 
to "converge with the Basic Law." But by his own example 
and what he demanded of his officials, the processes and ratio- 



20 



nales of Government policies were made more transparent. 
Officials spent much time meeting with elected representatives 
and members of the public to receive suggestions in the formu- 
lation of policies, or to defend and lobby for support for those 
policies. Government and people were drawn much closer 
together. The people were made to feel that they enjoyed 
more respect from their government than ever before, and 
that they had some say in how they were governed. This more 
open style of governance was again a logical development 
from the Government's interface with the public which had 
been evolving since the 1970s, and was just as important for 
the institutionalization of freedom and democracy as the elec- 
toral reforms. 

During the years leading up to the handover, despite the 
vociferous attacks by Beijing and its mouthpieces in Hong 
Kong on the Bill of Rights Ordinance and the Patten constitu- 
tional reforms, which upheld the specter of greater restric- 
tiions in the future, it was clearly evident that the civil society 
continued to expand. In 1996, it was estimated that there were 
on average three street demonstrations a day and numerous 
forums to discuss issues of public interest. The advocacy 
groups continued to proliferate. In addition to groups focus- 
ing on educational and social policy, there also were many new 
groups representing feminist, environmentalist, and human 
rights viewpoints. ^^ 

So at the end of June 1997, Hong Kong had a fledghng all- 
elected Legislative Council, as well as all-elected municipal 
councils and district boards. And the society had a strong 
sense of organized and self-disciplined assertiveness and of 
civil rights, nurtured over nearly thirty years. It also had ever- 
expanding freedom of opinion and pluralism of behefs. 
enjoyed over five decades. This civil society faced the depar- 
ture of a sovereign power that understood it had no legitimate 

12 See, for example. Uncertain Times: Hong Kong Women Facing 1997 
(Hong Kong: Hong Kong Women Christian Council, 1995). 



21 



claim to the territory, save by its performance, and the arrival 
of another sovereign power that beheved it enjoyed ultimate 
and indisputable legitimacy by virtue of national reunification. 
While the two sovereign powers and their respective support 
groups held solemn ceremonies and gala performances, the 
popular mood seemed to have been one of subdued resigna- 
tion. As alternatives to the official celebrations, many activist 
organizations stayed away from the colorful shows, and held 
somber seminars and street theater to reflect on Hong Kong's 
history and situation. 



Constitutional Development, 1997-99 

The two years since the handover have witnessed a tug-of- 
war between, on the one hand, the civil society and living 
expressions of freedom, democracy, and human rights, and on 
the other hand, the opposing notions of "social harmony" and 
"depoliticization" vocalized by Chief Executive Tung Chee- 
hwa, along with certain efforts to extend executive power. So 
far, civil society remains vibrant and vigorous, and manages to 
hold its own. 

Following the handover, the SAR Government has been 
constituted according to the Basic Law promulgated by Bei- 
jing in 1990. The Basic Law provides for an executive-led gov- 
ernment, with its Chief Executive and principal advisers 
appointed by Beijing. It also prescribes a Legislative Council 
of sixty seats. The first posthandover Council of two years' 
duration consists of twenty geographical constituency seats, 
thirty functional constituency seats, and ten seats filled by an 
Election Committee of eight hundred. The second Council 
(four years' term) will consist of twenty-four geographical 
seats, thirty functional seats, and six Election Committee seats, 
while the third Council (again for four years) will have thirty 
each of geographical and functional seats and no Election 
Committee seats. By the year 2007. a two-thirds majority of 



22 



the Council, with the consent of the Chief Executive, will be 
allowed to change the future composition of the legislature, 
say, into a chamber made up entirely of directly-elected geo- 
graphical seats. '"^ 

Governor Patten's constitutional reforms followed gener- 
ally the composition laid down in the Basic Law for the first 
post-1997 Council, in the hope that the Council elected in 1995 
would be allowed to continue to sit after the handover (this 
concept was called the "through train"). However, PRC offi- 
cials alleged that Patten's package reneged on secret agree- 
ments between London and Beijing, although they never 
explained how. They also perceived the resounding success of 
prodemocracy candidates and parties in the 1995 elections as 
grave threats to their designs for Hong Kong. Therefore, Bei- 
jing decreed that there would be no "through train" for the 
Hong Kong electoral system and representative institutions 
after the handover on July 1, 1997. Instead, it set up a "second 
stove," namely, a provisional legislature "elected" by an Elec- 
toral Committee of Beijing appointees, six months before the 
handover. 

The Provisional Legislative Council (PLC) was made up of 
the 1995 Council minus almost all the popularly-elected mem- 
bers, who were replaced by former British appointees, pro- 
Beijing candidates who had lost in the 1995 elections, and 
political unknowns favored by PRC officials. The body began 
its deliberations across the border in Shenzhen months before 
the handover, and took over as the SAR legislature on 
handover night. At first, it was unclear how long Beijing 
intended the PLC's term to be. Intense international pressure 
preceeded the promise that new elections would be held for 



'^ The provisions are found in the Basic Law, Articles 67-69 and Annex II, 
as well as in the April 4. 1990, Decision of the National People's Congress on the 
Method for the Formation of the First Government and the First Legislative 
Council of the Hong Kong Special Administrative Region appended to the Basic 
Law. 



23 



the first Legislative Council within a year.^"* 

The legality of the Provisional Legislative Council and its 
acts was challenged in Hong Kong courts in the weeks that 
followed the handover, but it was upheld by the Court of 
Appeal in an obiter dictum. While the unseating of the elected 
Council was certainly a major setback for democracy, the 
extension of the effective function of the judiciary to rule on a 
fundamental political issue of the constitution was a significant 
affirmation of the separation of powers. ^^ 

Also within weeks after the handover, the SAR Govern- 
ment published the stipulations of the first Legislative Council 
elections to be held in 1998. The twenty geographical seats 
would be elected by proportional representation, a compro- 
mise between the first-past-the-post system favored by the 
prodemocracy parties, and the multi-seat, single-vote system 
favored by the pro-Beijing groups. The thirty functional seats 
would retain the twenty-one occupational categories in exist- 
ence before the Patten reforms, and discard Patten's nine new 
categories which practically embraced every employed person. 
Instead, nine other (and much narrower) occupational catego- 
ries were created. The overall effect was to reduce the total 
number of eligible voters for all thirty functional constituen- 
cies from over two million in 1995 to about 150,000 in 1998.^^ 

The elections held on May 24, 1998, were open, clean, and 
fair, and a resounding victory for democracy and civil society, 
but they produced an undemocratic Legislative Council 
because of the artificially restricted constitutional framework. 
Voters turned out in record numbers, despite the tropical rain- 
storm that lasted for most of the day. One and a half million 

14 Frank Ching, "Are Hong Kong People Ruling Hong Kong?" in The 
Other Hong Kong Report 1998, ed. Larry Chow, et al. (Hong Kong: Chinese 
University Press, 1999), 4-5. 

15 Cf. Albert Chan, "Continuity and Change in the Legal System." in The 
Other Hong Kong Report 1998, ibid., 44-45. 

16 Cf. Frank Ching, "Are Hong Kong People Ruling Hong Kong?," 10. 
More details on the electoral system can be found in Hong Kong 1998 (Hong 
Kong: Informational Services Department, 1999). 8-10. 



24 



voters voted in the direct elections of the geographical constit- 
uencies. The prodemocracy parties, i.e., the Democratic Party, 
The Frontier, and the Citizens Party, together won some 65 
percent of the popular votes and captured more than two- 
thirds of the twenty geographical seats. The leading pro-Bei- 
jing party, the Democratic Alliance for the Betterment of 
Hong Kong (DAB) also ran a respectable campaign and won a 
few of the geographical seats. However, the majority of seats 
in the Council was won by candidates of the probusiness Lib- 
eral Party and of small pro-Beijing parties, who enjoyed httle 
popular support, lost in all the geographical polls, but scored 
in the functional constituencies or in the 800-member Election 
Committee. Although the prodemocracy parties and 
independents also won a few of the functional seats, they con- 
stituted only about one-third (twenty seats) of the whole 
Council. The distance of the system from a representative 
democracy of one person, one vote, is self-evident from the 
following table. ^^ 



Legislative Council Election Results, 1998 





Geographical 


Functional 


Election 


Parties 


Seats 


Seats 


Committee Seats 


Citizens 


1 








DAB 


5 


2 


2 


Democratic 


9 


4 





Frontier 


3 








Liberal 





9 


1 


Progressive 





2 


3 


Other Parties & Independents 


2 


13 


4 


Total 


20 


30 


10 


(Voters 


1.489.705 


77.813 


800) 



1^ Based on information from the Hong Kong Government website on the 
day following the elections. May 25, 1998. 



25 



The election was widely perceived in Hong Kong and 
abroad as a major success for the democratic process and for 
the pohtical transition. ^^ It brought forth calls for a faster pace 
of democratization, such as to have the whole legislature 
elected by direct geographical constituencies before 2007. In 
the flush of its first major electoral victory, even the pro-Bei- 
jing DAB party joined in the chorus. However, Chief Execu- 
tive Tung was not prepared to encourage any attempt to 
change the electoral arrangements in the Basic Law. But even 
he had to face the new politics when a new legislature with a 
large minority of popularly-elected members replaced the Pro- 
visional Legislative Council. 

The first Legislative Council, whose term runs from 1998 to 
2000, consists of a plethora of parties and independents. The 
Democratic Party is the largest, but it has fewer than one- 
quarter of the seats. On different issues, there are shifting aUi- 
ances among the parties. The problem for any executive 
branch, whatever its own orientation toward democracy, is 
how to work with all these parties in order to govern. This 
problem is compounded by the different sources of legitima- 
tion and the lack of articulation between the executive branch 
and the legislature. 

Chief Executive Tung was "elected" by an Electoral Com- 
mittee of 400 members in 1996: that committee had been, in 
turn, selected and appointed by PRC officials, and enjoyed no 
mass base in Hong Kong.^''' So, Tung is legitimated only by 
appointment from Beijing. Since his appointment, he has not 
made any attempt to build mass political support among the 

IS Cf. Deborah Brown and James Robinson. "Hong Kong's 1998 
Legislative Council Elections: Appraising Steps in Democracy." The Asian 
American Review, 27, no. 2 (Summer 1999): 27-71; Sonny Lo and Eilo Yu, 
"Election and Democracy in Hong Kong: The 1998 Legislative Council 
Election," unpublished research paper. Hong Kong University, 1999. 

19 Basic Law. Article 45 and Annex I. Also, the April 4. 1990. Decision of 
the National People's Congress on the Method for the Formation of the First 
Government and First Legislative Council of the Hong Kong Special 
Administrative Region. 



26 



people, believing as he does in "social harmony" and 
"depoliticization" of Hong Kong. In contrast, the Legislative 
Council, or at least those of its members returned by the direct 
geographical elections or by the larger functional constituen- 
cies, claim legitimacy from popular mandate. Different 
sources of legitimation mean that if any major issue of conten- 
tion should arise between Hong Kong and Beijing, the Chief 
Executive would be caught in the conflict. Even in strictly 
Hong Kong domestic issues, he cannot claim to have as much 
popular mandate as his critics on the Council. 

One way to resolve the potential difficulties that could 
arise from the divergent sources of legitimation is for the exec- 
utive to work with the legislators in such a way that the aspira- 
tions of the electorate could be brought into the policy-making 
process via the elected representatives, and at the same time, 
for the executive to partake of the popular mandate given to 
the legislators. A variety of ways to communicate between the 
executive and legislative branches could be adopted, such as 
by inviting the parties in the legislature with substantial popu- 
lar support to join the Executive Council. However, this has 
not been done. On the contrary, apart from a few top civil 
servants, the Executive Council is composed of retired former 
British appointees, business leaders or pro-Beijing profession- 
als, and a DAB politician who deemphasizes his party affilia- 
tion. As a body, it does not reflect popular aspirations and is 
insulated from the public mood and the electoral process. The 
Chief Executive makes few attempts to work with the legisla- 
ture in other ways. He rarely appears in the chamber to 
explain or persuade, being content to have civil servants lobby 
for the passage of particular bills by constructing ad hoc alli- 
ances, often against the minority of legislators who enjoy 
majority voter support. These legislators are thereby cast into 
permanent opposition, which frustrates the popular will as well 



27 



as the work of the Council.^° 

Tung seems to prefer to return to a style of governance 
akin to that of the colonial governors in the 1960s or earher, 
before there were elections, and before there were so many 
different voices in society. If the elections introduced in Hong 
Kong during the last decade had been only a veneer to cover 
the British retreat, the polls and parties could have been 
brushed aside easily, and such a return under Tung's obviously 
sincere paternalism might have been possible. But given the 
long history of civil society, Hongkongans cannot be remade 
into the docile subjects of the 1950s. To create a government 
suited to the populace, the formal and informal interface 
between state and society which developed since the 1970s 
needs to be strengthened rather than weakened or set aside. 
Stalling democracy will make Hong Kong more difficult to 
govern, not easier — especially in a period of economic diffi- 
culty and restructuring. 

Meanwhile, in the aftermath of the "bird flu" and other 
sanitation crises, the Administration proposed in late 1998 to 
reorganize local government by abolishing the two municipal 
councils and redistributing their functions among the bureau- 
cracy, the district boards, and the legislature. This also can be 
seen as a setback for democracy, although, so far, it has not 
elicited very much response from society. However, the par- 
ties already are gearing up for the district board and Legisla- 
tive Council elections to be held in late 1999 and 2000, 
respectively. The arrangements for the legislative elections 
will be broadly similar to 1998. but according to the Basic Law, 
there will be twenty-four geographical seats and only six Elec- 
tion Committee seats. This will be a small constitutional 
advance for democracy, and if the process remains fair and 
open as in 1998 (there is little reason to think otherwise), the 
popular element in the legislature may well increase slightly. 

20 Cf. Michael DeGolyer, "The Civil Service," in The Other Hong Kong 
Report 1998, 73-114. 



28 



And if the executive branch continues to fail to communicate 
with the legislature, the systemic poHtical difficulties will be 
further compounded. 



Freedom and Human Rights, 1997-99 

Just as with democracy, civil liberties and human rights 
have been tested by the handover, but have remained ahve 
and strong. 

In April 1997, the office of the Chief Executive-designate 
issued a consultation document on Civil Liberties and Social 
Order which suggested a number of ways in which the rights of 
association and public demonstration ought to be restricted, 
including for reasons of "national security." The document 
was widely criticized. After a period of consultation, the pro- 
posals were toned down. 

So, when the Provisional Legislative Council proceeded to 
undo the liberalization undertaken earher in the 1990s on the 
rights of assembly and association, the rollback was less than 
people's worst fears. The resultant Societies Ordinance 
requires any association to be registered with the pohce, and 
gives the police the right to refuse registration on grounds of 
"national security," which remains undefined. But so far, 
there has not been any perceptible change in practice. Organi- 
zations critical of the Hong Kong SAR and the PRC Govern- 
ments, such as groups formed to support the Tiananmen 
movement, continue to exist and have not been banned. Simi- 
larly, the Public Order Ordinance requires organizers of public 
rallies to seek a "notice of no objection" from the police, 
which again could be refused on grounds of "national secur- 
ity." But there does not seem to have been significant practi- 
cal changes, with the police largely carrying on as before the 
handover, except when security tightened around visiting PRC 
dignitaries. For instance, on handover night, the police 
drowned out protests against Prime Minister Li Peng by play- 



29 



ing Beethoven on loudspeakers, but otherwise did not prevent 
the demonstrations. There continue to be numerous demon- 
strations, averaging three to four per day. including rallies of 
several tens of thousands like the annual June Fourth com- 
memorations of the loss of life during the Tiananmen massa- 
cre, or smaller ones like the protest outside the New China 
News Agency against the suppression of Falun Gong in August 
1999.21 

An overview of legislation shows a general trend of hberal- 
ization of civil rights from the early 1990s through June 1997, 
then a number of reversals under the Provisional Legislative 
Council. The effect of the restored legal restrictions on civil 
liberties is to give wider discretionary powers to the police, 
which could be invoked to control popular associations or 
demonstrations if the Government decided it were necessary 
to do so. If the pubHc opposition to the April 1997 consulta- 
tion document had not been so loud, the rollback could have 
been more serious. But the intention to contain and restrict 
freedom of expression certainly is present, partly arising from 
Beijing's fear of Hong Kong as a "base of subversion" against 
the Chinese Communist Party, and partly from Chief Execu- 
tive Tung's own predilections." 

The Tung Administration's inchnation to restrict freedom 
of expression is perhaps best symbolized by the changes made 
to the square on Lower Albert Road. From the 1970s until the 
handover, this open square between the buildings of the Cen- 
tral Government Offices was a favorite area for demonstra- 
tions, where the organizers could address a mass rally before a 
small delegation would walk up the short path to Government 
House to deliver its petition at the side gate. There never were 

-1 For example. South China Morning Post, June 5, 1998, 1; Ming Pao, June 
5. 1998, Al: South China Morning Post. June 5, 1999, 1: Ming Pao. June 5. 1999. 
Al: South China Morning Post, July 29, 1999, 3. Cf. Christine Loh. "Human 
Rights in the First Year," in The Other Hong Kong Report 1998, 51-54; Albert 
Chan, "Continuity and Change." 32-35. 

22 Cf. Kenneth Leung. "How Free is the Press of Hong Kong: 1997 and 
After?" in The Other Hong Kong Report 1998. 115-137. 



30 



any serious incidents. When Tung decided not to move into 
Government House and to work in the Central Government 
Offices instead, the buildings were renamed Government 
Headquarters, and the state emblem of the PRC replaced the 
colonial coat of arms on the main awning, while a smaller SAR 
emblem was affixed in a less prominent position, and, a nine- 
foot-high iron fence was built around the square. While dem- 
onstrations continue to be allowed on the now-enclosed 
square, the silent message is loud and clear. 

In other areas of expression, attempts to restrict freedom 
also have met with strong opposition from the people. Almost 
immediately after the handover, David Chu, a pro-Beijing bus- 
inessman and politician with a Harvard MBA, wrote to the 
presidents of two universities asking them to discipline some 
foreign professors who published newspaper articles critical of 
the PRC Government. This produced an immediate outcry 
both in Hong Kong and abroad. Chu apologized for the word- 
ing of his letters.^^ 

In March 1998, Xu Simin, a pro-Beijing publisher in Hong 
Kong and a member of the Chinese People's Political Consult- 
ative Conference, spoke in a session of the Conference in Bei- 
jing against Radio-Television Hong Kong (RTHK). He 
believed that RTHK, as a public broadcaster funded by the 
Hong Kong SAR Government, should act as a mouthpiece of 
the SAR and PRC Governments, and should not be allowed to 
criticize them. This again produced a huge uproar, since 
RTHK has maintained its editorial independence for many 
years, and has been seen as the most important member of the 
not-for-profit mass media, where all kinds of opinion can be 
aired. Xu's remarks, made within an august organ of the PRC 
state, was seen as an attack not only on RTHK and freedom of 
speech and of the press in Hong Kong, but also as a request for 
Beijing to restrict such freedoms in Hong Kong. The objec- 
tions to Xu's remarks became louder when Chief Executive 



23 Chronicles of Higher Education, July 15, 1997. 



31 



Tung spoke in ambivalent terms which seemed to condone Xu. 
The pubhc was assuaged only when Chief Secretary Anson 
Chan vehemently criticized Xu and defended RTHK's edito- 
rial independence, and when President Jiang Zemin told Hong 
Kong members of the PRC national organs not to interfere in 
Hong Kong's domestic affairs. This last episode was one of the 
instances when Beijing reiterated the "one country, two sys- 
tems" policy and its public avowal for "Hong Kong people to 
rule Hong Kong."-'^ 

The RTHK saga reoccupied center stage during the sum- 
mer of 1999 when Cheng An-kuo. the quasi-official represen- 
tative of Taiwan in Hong Kong, was invited by RTHK to speak 
on "Letter to Hong Kong," a popular current affairs radio pro- 
gram, and took the opportunity to explain President Lee Teng- 
hui's thesis of "special state-to-state relations." This led to 
cries of outrage from the pro-Beijing forces in Hong Kong, 
while RTHK stood firm and Government officials reiterated 
their support of the broadcaster's editorial independence. The 
transfer in October 1999 of Cheung Man-yee, RTHK's Direc- 
tor of Broadcasting, to be the new head of the Hong Kong 
Government office in Tokyo, has raised serious concern both 
in Hong Kong and overseas. Cheung, a popular and well- 
respected professional officer in the broadcast service, is seen 
by the community as a bulwark for press freedom. There is 
widespread public support for RTHK to maintain its practice 
of freedom and diversity, and not to succumb to pressure to 
become a propaganda machine. Once again, Anson Chan and 
the senior civil servants are perceived to be stronger guardians 
of Hong Kong's tradition of free expression than Tung.-^ 

In other ways, the Hong Kong SAR Government has 
shown pragmatic self-restraint with regard to public expres- 

2^* Cf. Christine Loh, "Human Rights in the First Year," 58; Frank Ching, 
"Are Hong Kong People RuHng Hong Kong?," 18. 

25 For example. South China Morning Post. July 17. 1999; Sing Too. July 29, 
1999, A17; South China Morning Post, August 7, 1999, 2; and Ming Pao, August 
10, 1999. A4. 



32 



sions which might arouse the ire of Beijing. For instance, on 
October 10, 1997. ROC flags hoisted in pubhc places, such as 
pedestrian foot bridges, were removed, but those displayed on 
private property, although openly visible, were allowed to 
remain. News reporting on Taiwan and Tibet continues very 
much as before. In January 1998, two demonstrators who 
defaced PRC and SAR flags were fined by a magistrate invok- 
ing the PRC State Flag and State Emblem Law. one of the 
mainland laws specifically enacted by the Provisional Legisla- 
tive Council to apply to Hong Kong. The case is being 
appealed. -^^ 

A highly sensitive issue is the stipulation in the Basic Law 
(Article 23) that the SAR should legislate to prohibit sedition 
against the state. Since sedition is not an offense known to the 
common law tradition, and such legislation could have very 
serious ramifications for ah kinds of civil liberties and rights in 
Hong Kong, the pubhc is vigilant, and the SAR Government 
has not yet tabled any biU in that regard. During the summer 
of 1999, some pro-Beijing pohticians suggested that it would 
be best to wait a few years, presumably with the hope that civil 
society would be more subdued by that time, so that a more 
stringent bill could pass through a more phant Legislative 
Council. 

Meanwhile, a technical issue in the wording of statutes 
already has aroused grave concern. In a number of Hong 
Kong ordinances enacted during the British colonial period, 
the Crown was exempted from certain restrictions. After the 
handover, the word "Crown" clearly was inappropriate. The 
Provisional Legislative Council adopted a suggestion by the 
Legal Department to substitute the word "State" for "Crown." 
However, the PRC state has. and increasingly will have, many 
tentacles and interests in Hong Kong, more than the British 
Crown ever did or could have. To exempt them from the spe- 
cific restrictions in those Hong Kong laws could rebound on 

26 Cf. Christine Loh. ■Human Rights in the First Year," 60. 



33 



the rights and freedoms of Hongkongans. In any case, to 
exempt state organs seems to contradict the provision in the 
Basic Law that mainland agencies and persons in Hong Kong 
have to obey Hong Kong laws. This is a difficult matter that 
will have to be tested in the courts. A case in point is whether 
the New China News Agency should be exempt from the pro- 
visions of the Privacy Ordinance if a Hong Kong citizen should 
demand to examine the files it keeps on her.-^ 

There are other concerns about freedom of expression on 
the horizon. For a number of years, fierce competition for 
market share among newspapers and other mass media 
resulted in often intrusive and unethical news gathering by 
reporters as well as paparazzi. Community unhappiness on 
this matter is substantial. However, a Law Reform Commis- 
sion report in the summer of 1999 advocating a statutory press 
council to enforce ethical standards has prompted serious con- 
cerns about the specter of censorship. Media professionals 
propose instead other more autonomous approaches to profes- 
sional ethics. While the debate continues, the transfer of 
Cheung Man-yee cannot but exacerbate fears about the inten- 
tions of the Tung Administration. 

Fierce competition among television stations has brought 
another kind of threat. In October 1999. Asia Television 
(ATV) the smaller of the commercial broadcasters, revamped 
its news programming by assigning two entertainers as news 
anchors and replacing serious news stories with tabloid items. 
This is widely perceived as not only a commercial gimmick, but 
also a further step along the path of "self-censorship" taken by 
the owners and management of the station, which recently 
came to include a number of prominent mainlanders. 

Meanwhile, the PRC authorities across the border have 
shown their displeasure at a number of Hong Kong elected 
representatives by denying them access to the mainland. 
These included councilors and district board members belong- 

27 Cf. Albert Chan. "Continuity and Change," 37. 



34 



ing to the Democratic Party of Hong Kong, and the pro- 
democracy but independent Margaret Ng, who represents the 
legal constituency in the Legislative Council. While there is 
widespread public support for these Hongkongans' right to 
visit the mainland. Tung is evidently less sympathetic. This is 
seen by many as a signal for people to be less vocal in their 
advocacy for freedom, democracy, and human rights, and in 
their criticism of Beijing. 

The single largest issue of human rights since 1997 had to 
do with the judiciary. The Basic Law includes within the defi- 
nition of a Hong Kong permanent resident any child born of a 
Hong Kong permanent resident whether in Hong Kong or 
outside. ^^ For decades, it was difficult for the mainland chil- 
dren of Hong Kong residents to join their parents in Hong 
Kong, because Beijing did not allow the pre-1997 Hong Kong 
Government to process applications for immigration from the 
mainland. Rather, the local public security bureaus in China 
issued one-way exit permits, and there was a good deal of cor- 
ruption and red tape involved. In anticipation of the 
handover, a number of parents had their children smuggled 
into Hong Kong, and in early July 1997, demanded the right of 
abode for their children. The Provisional Legislative Council 
meanwhile passed a law requiring such children to be sent 
back to the mainland to apply for an exit permit from their 
locality as well as a certificate of entitlement from the Hong 
Kong Immigration Department. The two documents must be 
affixed together to be valid. The lawsuits went through the 
Court of First Instance, the Court of Appeal, and the Court of 
Final Appeal. The Court of Final Appeal ruled unanimously 
in January 1999 in favor of the children on the basis of their 
unequivocal right of abode in the Basic Law and the human 
right of family reunion. It also struck down as unreasonable 

28 The controversy and its background are discussed in detail in B. Luk, 
"Hong Kong and the Mainland — Citizenship and Right of Abode Issues." 
unpublished presentation at the Workshop on Hong Kong Post -Transit ion Issues, 
University of British Columbia, March 13. 1999. 



35 



and unconstitutional the ordinance requiring that two docu- 
ments be affixed together. This decision raised a major consti- 
tutional crisis between the executive branch and the judiciary 
as well as between the SAR Court of Final Appeal in Hong 
Kong and the National People's Congress Subcommittee on 
the Basic Law in Beijing. The Subcommittee, following a sug- 
gestion from the Tung Administration, reimposed restrictions 
on the mainland children of parents in Hong Kong. 

In spite of this setback for the judiciary, much remains to 
be done by the courts. Although the National People's Con- 
gress Standing Committee refused adoption of provisions in 
the Bill of Rights Ordinance which overrode other Hong Kong 
statutes, the Basic Law itself contains an enumeration of civil 
rights. So it will still be up to the courts to test past and future 
legislation and Government acts. 



Long-Term Prospects 

Two years and a few months is not a long enough time for 
Hong Kong's pohtical transition to play out. Civil society is 
alive and well and growing in Hong Kong. But unlike the 
1970s and 1980s when the state and civil society grew together 
in creative tension, the post-1997 Administration appears to be 
preparing to restrict and turn back civil society. What will 
happen with this clash of wills remains an open question. 
Much will depend on the values and ideas of the younger gen- 
eration of Hongkongans as they mature. Already, there are 
efforts by certain pohcy makers in the education field to 
require the PRC flag to be raised in Hong Kong schools, 
although the UK flag almost never was flown; however, there 
is little public sentiment in support of such political rituals in 
Hong Kong. Also, all the Chinese history textbooks for high 
school use were changed immediately after the handover to 
reflect Beijing's current point of view, especially with regard to 
the development of the mainland, Taiwan, and Hong Kong in 



36 



the last fifty years. How these and other pedagogical changes 
will be received remains to be seen. 



Canada-IIcr'» Kong Kezcvrce Centre 

1 Spadina Crescent, Rm. Ill • Toronto, Canada • M5S lAl