By Jerome A. Cohen
On Monday, in a speech at a forum in Shenzhen, Deng Zhonghua, another deputy director of the Hong Kong and Macau Affairs Office (HKMAO) designated to speak out about the forthcoming legislation, claimed that the new law will give the Central Chinese Government itself jurisdiction to prosecute “a very small minority of cases involving very special circumstances” and that local HK authorities would be responsible for all other cases. This was a startling assertion of central authority that was quietly dropped from the official account of Deng’s speech. It seems that every confident statement issued by HKMAO officials about the forthcoming law’s content has only created more doubt, confusion, misunderstanding, fear and opposition.
Following Deng’s statement and the consternation it created, Hong Kong’s Chief Executive, Carrie Lam, released a video reaffirming the relationship between Hong Kong and China. She restated for the umpteenth time the obvious fact that “Hong Kong is an inalienable part of the People’s Republic of China.” She too emphasized that the new law “will only target an extremely small minority of illegal and criminal acts and activities,” but she failed to mention a key question - whether all such prosecutions would be conducted in Hong Kong or whether the most serious would be prosecuted in the Mainland, i.e., not under the protections of Hong Kong’s common law constitutional system and the International Covenant on Civil and Political Rights.
Why is she releasing this statement now? Is it to counteract the confusing and damaging impact of Deng’s speech? Lam’s remarks – so general and abstract – simply rehash the standard argument and assurance. Has she even read the draft text of the law? Where is this draft text? It has not yet been listed for discussion at this week’s NPCSC session. Why not? Lam doesn’t seem to have a clue about the legal complexities and concerns stoked by all the “truth squads” that seem to be staggering under the weight of preparing the public for issuance of the draft. Remember what Mao said at the worst time of the GPCR? “All is chaos under Heaven. The situation is excellent.”
Furthermore, although the draft text isn’t, at least yet, on the agenda for the current NPCSC session, its accelerated drafting was recently added to the NPCSC’s tasks. The drafters must be under enormous pressure to meet the leadership’s demand to churn out something acceptable “as fast as possible.” I recall what such pressure made Chinese Ministry of Finance officials feel like in 1980-81 when the leadership was calling for them to crank out tax legislation that would be acceptable to the U.S. Treasury Department so that US oil company taxes to China would be creditable against their US taxes. It was a stressful time for the bureaucracy. In the current case, the self-imposed urgent deadline of the leadership, although vague, seems much stricter because of the heightened international focus on this development. Not a great environment for the calm reflection required to answer adequately the many complex issues of international, constitutional and criminal law involved in the forthcoming legislation.
What should we infer if there is a very last-minute listing, or lack thereof? Is the delay the result of an inability of the leadership to reach consensus on the law’s content? Of course, a special session can be convened in ten days or so. Perhaps that would be a special treat to mark the Party’s 99th birthday on July 1.