April, 2005

The Failure of Tung Chee-hwa and the Future of Hong Kong

Rose Wu

After 10 days of intense speculation, Tung Chee-hwa finally publicly announced his resignation on March 10, ending his troubled reign as Hong Kong's first chief executive under Chinese rule. At the same time, Chief Secretary Donald Tsang Yam-kuen was named acting chief executive, serving until an election is held on July 10.

Speaking of his reasons for resigning, Tung said, "I'm turning 68 this year.... My health has been affected by continuous 16 to18 hours of work every day.... I get tired very easily. My immunity has weakened, and sickness comes here and there."

Two days following the announcement of his resignation, Tung was elected a vice chairperson of the Chinese People's Political Consultative Conference (CPPCC).

In a heated debate in a Legislative Council (Legco) House Committee meeting on March 11, pro-democracy lawmakers demanded that Tung personally explain how he reached his decision and whether the central government was behind it. They also accused him of showing disrespect for the legislature by bypassing it before making his public announcement.

As lawmaker Albert Cheng pointed out, for many years, the demand to remove Tung has been loud and clear. Thus, his departure should have been a victory for the people, but unfortunately, people suspect that Beijing's influence is behind his supposedly voluntary resignation. This has created a new hurdle to advancing democracy and the pledge of "one country, two systems." Moreover, the much-criticised undemocratic "small circle" election method will be used again for picking Tung's successor, i.e., only 800 Election Committee members will vote in the chief executive poll on July 10.

How do we evaluate the failure of Tung? First of all, his lack of selfhood and his submissive and obedient Confucian personality towards authority ensured that he would only be a mouthpiece for Beijing. Secondly, his business background as a son who inherited his family's shipping business did not equip him to be a political leader. Thirdly, the political system in Hong Kong, as created by Beijing, guarantees that the chief executive is only a handpicked figure serving the interests of the Chinese government. In this case, the failure of Tung reflects the failure of the implementation of "one country, two systems."

As for Hong Kong's new interim chief executive, Donald Tsang, 60, is a career bureaucrat who rose to the position of financial secretary under British rule. According to media speculation, China has already decided to direct the committee to elect Tsang as Tung's successor and to serve only two years, the remainder of Tung's term, instead of a new five-year term as stipulated in the Basic Law.

Like his predecessor, Tsang will be caught in the tension between Hong Kong people's aspirations for democracy and the refusal of China's leadership to allow this to happen. Tsang will also have to earn the trust of mainland officials and pro-Beijing politicians in Hong Kong who are suspicious of his long career with the former colonial government and his reputation as a devout Roman Catholic, especially since Catholic Bishop Joseph Zen has been at the centre of democratic activism here and the Catholic Church helped to organise the July 1 demonstrations the past two years that drew hundreds of thousands of people.

The first crisis that Tsang must tackle is the current heated debate about whether the new chief executive elected on July 10 should serve a full five-year term or only the remainder of Tung's tenure. What is worrisome is that this discussion is driven more by politics than constitutional provisions. According to Anthony Cheung Bing-leung, professor of public administration at the City University of Hong Kong, under Article 46 of the Basic Law, the term of office of the chief executive shall be five years. There are no grounds for another interpretation to support a by-election whereby the person elected only serves the remainder of an existing term. The Chief Executive Election Ordinance, enacted in 2001, also makes no provision for a by-election.

Elise Leung, Hong Kong's secretary for justice, however, announced on March 12, after a visit to Beijing, that a new chief executive would be chosen this summer to complete the two remaining years of Tung's current term; and on March 24, the government unveiled an amendment to the Chief Executive Election Ordinance stating that the new chief executive shall "serve the remainder of the term of his predecessor." The bill will be tabled to Legco on April 6.

As Legco member Ronny Tong pointed out, it is not a problem for the government to push an amended election law through the existing legislature where government supporters outnumber democracy advocates by 35 to 25. He warned, however, that such a law would be vulnerable to a legal challenge in the courts because the Basic Law takes precedence over any ordinances enacted by the legislature and the Basic Law makes no provision for shorter terms. This interpretation, he said, is presently the consensus of Hong Kong's legal community.

Leung noted that the intent of the drafters of the Basic Law had been to allow for shortened terms for the replacement of chief executives, but she acknowledged that Hong Kong's legal system did not allow judges to consider the intent of a law's drafters when the law itself is clear. She pointed out though that mainland China's legal system did allow legislative intent to be considered.

Under these circumstances, no one can rule out the possibility that someone will challenge, not only the legality of the ordinance, but also the legality of the new chief executive, which would thrust Hong Kong into a serious constitutional crisis. In order to ensure the chief executive election takes place as scheduled and avoid any possible constitutional crisis, it is likely that the National People's Congress (NPC) Standing Committee will be asked to interpret the relevant provisions of the Basic Law. What is the reason behind this move? The pro-democracy camp suspects that by holding elections in 2007 for another five-year term mainland officials have effectively pushed back until 2012 any broader elections for Hong Kong's chief executive. Having a two-year term instead might also be considered convenient for Beijing to further entrench its influence in Hong Kong. What is sacrificed, however, is the integrity of the "one country, two systems" model and the rule of law.