政治

The Basic Law is Not a Gift Beijing Can Withdraw/Evan Fowler

Jimmy Lau / Flickr

Jimmy Lau / Flickr

(中文譯文在下,由 Sally Kwok 提供)

22nd September, 2014

At a conference last Saturday I noted a common assumption among all the Mainland scholars who had come to speak, which was that Hong Kong has been granted a very special gift in the form of the Basic Law and in being allowed to be a Special Administrative Region. From this position it is not surprising that many scholars find irritation in the way the majority of Hong Kong people have reacted to the NPCSC framework.

To take the usual metaphors, the jade gift with which Beijing had sincerely welcomed this city back to the motherland has been accepted by an ungrateful and spoiled people. Beijing had welcomed back a lost child corrupted by “foreign interference” to have a “superiority complex” and harbour separatist leanings. Having offered the carrot, Beijing should be applauded for not having turned to the stick.

The problem with this is that the initial assumption is false, but to challenge this assumption is to tread in a very sensitive area. Rightly or wrongly, from a strictly legal perspective Hong Kong was and the territories of Kowloon up to Boundary Street were ceded in perpetuity. The Joint Declaration was not merely the formalisation of a physical handover of power, but also an agreement upon which sovereignty of Hong Kong would change. The Basic Law was not so much a gift to the Hong Kong people but a condition upon which China could claim legal sovereignty over this city.

There is also both a popular and moral case to be made for this understanding of the connection between the Basic Law and sovereignty. At the time Hong Kong was predominately a city of immigrants and refugees, the majority of whom had sought protection under British colonial authority from the authority of Beijing. These people were and still are Chinese, are loyal to China, but do not recognise the Chinese Communist Party as the rightful government of China. Indeed, one of the more pressing issues of the Sino-British relations in the lead-up to 1997 was how to ensure significant communities of Hong Kong people could be made to accept the arrangement. The guarantees that the Basic Law seemed to promise not only ensured investor confidence in the city, but also helped ensure social cohesion.

It is therefore wrong to assume that the Basic Law is Beijing’s gift. Rather, it is on what Beijing’s sovereignty of this city is based. It was a deal made between three sides: Beijing, London and Hong Kong. Beijing gained legal sovereignty and the closure of a historic period with a narrative compatible with its own national history; and Britain could withdraw from an impractical and increasingly embarrassing holding with its pride intact and with a clear conscience believing it had safeguarded the lives and way of life of its last colonial possession.

But it is Hong Kong’s side of the deal that is so shamefully missing from the current debate. The Basic Law represented a deal with Beijing to accept its national narrative, to accept the national sovereignty of the Chinese Communist Party on two conditions: firstly, that Hong Kong people would run Hong Kong; and secondly, that the Hong Kong way of life would be preserved for 50 years.

As legal scholars debate the finer points of article 44 and article 45 of the Basic Law, we should not forget that for the vast majority of people in this city the Basic Law represents these two conditions. They do not fret over interpretation, but they feel both ashamed and betrayed when they watch “their” government standing in the crowds as Beijing’s emissaries proclaimed the NPCSC framework. They feel ashamed and betrayed as they experience the slow suffocation of those values upon which their lives in this city were built, and must stand their powerless to the change. They feel threatened by the growing suspicions that they find themselves having about freedom of the press, and in the questions that now hang over a police force that had for a generation been rightly touted as “Asia’s Finest”. If Hong Kong has been spoiled, as some insist on believing, it is these concerns, the concerns of the home that they have found in this city, that have spoiled them.

I was told on Saturday that Beijing seeks consensus, but also that “politicisation is dangerous”. But you cannot find consensus if you do not allow the other side to speak. I believe many Hong Kong people understand Beijing’s position. It would be a great step forward to finding a genuine consensus if Beijing were prepared to question this one assumption.

基本法並不是北京可以撤回的「恩物」

2014年9月22日

在上週六一個座談會裏,我留意到在座發言的內地學者全都假設了基本法及行政特區地位是中央「恩賜」予香港的特別禮物。持此觀點,難怪他們會對大部份港人就人大常委設定的政改框架作出的反應感到困惑及煩厭。

聽到一個比喻,說這正如北京向香港恩賜了一塊美玉,以示它真誠歡迎港人回歸祖國。豈料這腔熱情得到的卻是一幫不懂感恩又被龐壞了的港人冷屁股對待。北京迎回了飽受外國勢力污染的遊子;他們既趾高氣揚又自卑,更有分裂主義傾向。難得北京不計前嫌不施懲罰之餘反相贈禮物; 這種泱泱大國的氣度理應得到喝彩才對。

這種説法的問題在於他們的前提假設是完全錯誤的,但挑戰這假設卻非常敏感。不管對錯與否,從法律角度嚴格來説香港及九龍界限街以南的領土是被中國在19世紀永久割讓放棄掉的。聯合聲明並不只代表形式化的英中權力交接,更是達成香港主權替换的協議書。基本法不是恩賜給港人的「禮物」,而是促成中國合法擁有此城主權的重要條件。

想認識基本法和主權之間的關係,就必須瞭解民意和道德雙方面的問題。當年香港主要是一個移民和難民城市,其中大部分人民逃離了北京政權來到這塊英國殖民地尋求當局保護。他們是中國人亦忠於國家,但卻不願承認共產黨在中國的執政合法。事實上,中英關係在籌備1997年回歸時,最難處理的問題就是如何確保香港大多數市民可以接受回歸這個協議。基本法疑似提供的保證,不僅維繫了此城投資者的信心,也鞏固了社會凝聚力。

因此,假設基本法是北京的「恩物」是犯了最基本的錯誤。相反,它是此城主權得以回歸北京的基石。這是三方:北京、倫敦和香港之間的協議。北京合法獲得了香港的主權,而把這割讓國土的民族恥辱劃上句號; 英國也在管治香港日益不切實際及尷尬的情況下,得到下臺堦體面地退出,並自以為已保存了殖民地子民所擁有的生活方式而感到問心無愧。

但在現在的爭論中,協議其中—方亦即香港,卻恬不知恥地隱形了。港人是在兩個條件下接受國家的申述及中共的主權:—、港人冶港; 二、港人生活維持五十年不變。而基本法正正代表了這兩個導致與北京達成協議的條件。

當法律學者爭辯基本法第44及45條的細節之際,我們不應該忘記香港絕大部份市民認為基本法代表的這兩個條件。他們或許不太著意法律解釋,但當看到「自己」的政府站在人群中聽北京派來的使者宣佈人大常委會議決的政改框架時默不作聲,難免深感惱羞及被背叛。他們看到此城市賴以成功的核心價值正慢墁被消滅,又要忍受自己不能改變這一切的無力感。他們為新聞自由漸受侵蝕,以及那些曾被吹捧為「亞洲最優秀」的警員會否依然以服務市民為本,而深感疑慮。有人堅稱港人被寵壞了。如果屬實,那只不過是這些他們—直享有而如今郤非常擔憂失去的資產,寵壞了他們。

上週六,有人告訴我北京正尋求共識,但同時卻警告「談論政治是非常危險的」。不允許對方表達意見,卻妄想達到共識,實為緣木求魚。我相信很多香港人都瞭解北京的立場,但如果北京也願意承認基本法並非「恩物」時 ,這無疑會是對尋求真正共識的一大進步。

原刊於 I’m explaining a few things

分類:政治

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