Hong Kong 47: The Basic Law was drafted with care, making a ‘constitutional’ crisis most unlikely
Hong Kong Free Press
Well, we have been waiting four years for some judicial explanation of an enduring mystery, and we’re still waiting. What could possibly be wrong with holding a primary election?
We have some progress. Looking at the outcome of the trial of the 16 pro-democracy figures who pleaded not guilty to conspiring to commit subversion over their involvement in said poll, it appears that it was not the primary as such which was the problem. The problem was what they said they were going to do afterwards.
Leaving aside the lurid things which some candidates said or wrote in the exciting pre-election atmosphere, the basic plan was to pursue the “five demands” of the 2019 protesters, and – if necessary to that end – to vote against the government’s budget bill. This would activate a process specifically designed by the Basic Law drafters to deal with the possibility of irreconcilable differences arising between the Legislative Council (LegCo) and the chief executive, and contained in Article 52 of Hong Kong’s mini-constitution.
The three national security judges entrusted with this case seem to have found this quite horrifying. There would be “dire consequence” from “persistent vetoing of budgets” leading to “serious adverse consequences on the operation of the government,” they said.
This is a recurring theme. Convicting Kalvin Ho the judges said that: “We are sure that [Ho] knew that indiscriminately vetoing of the budgets would result in a constitutional crisis and the ensuing paralysing effect on the operations of the Government.”
Helena Wong “must be aware that indiscriminate vetoing of the budgets would result in a constitutional crisis with the effect of paralysing the operations of the Government.”
On Leung Kwok-hung: “As a former LegCo member and a veteran politician, we were sure that he was fully aware of the dire consequence of persistent vetoing the budgets by the majority members of the LegCo. No doubt he would have known that it would cause serious adverse consequences on the operation of the Government.”
The amateurs were, if anything, more extreme. Mark Pinkstone’s piece for the China Daily observed: “The successful candidates would veto the government’s budget and other crucial bills after gaining control of the LegCo, thus forcing the chief executive to step down, making the Hong Kong Special Administrative Region government inoperable, and thus causing a constitutional crisis. That is subversion, an attempt to overthrow the government, the epitome of anarchy.”
Another writer in the same publication said the primary plotters would have caused “chaos.”
All of this is, actually, nonsense. No doubt some of the 47 defendants in the case – 31 pleaded guilty to the national security charge – would have been quite happy with the idea of a constitutional crisis, chaos, or even anarchy. But to consider this even a remote possibility is to underestimate the care with which the Basic Law was drafted.
The easiest way to look at this may be to go through the possible outcomes one by one.
The first one, obviously, is that the democrats do not achieve a majority in the LegCo election, which was what the primary aimed to help them achieve. In that case there is no problem.
The second possibility, also harmless, is that they do win a majority but this is swiftly corroded by that magical process by which former pillars of the British colonial establishment turn into fervent admirers of the Chinese Communist Party. I have no idea how this is done but it happens too often to be a mere coincidence.
The next possibility is that the democrats do achieve a majority and submit their demand for the five demands. Our three judges, with impeccable hindsight, say that the government would never have agreed to these.
But suppose that the government gives ground on those demands, which are within its gift. There will now be a temptation for some of the more dilute democrats to declare victory and desist from opposing the budget, because the next step is that under Article 50 of the Basic Law, the chief executive may dissolve the council. Newly minted councillors will lose their status and perks while these are still a fresh and pleasant experience. Nobody can persistently veto anything. Reject one budget and you have to be elected again, or not.
If there is no compromise, then, we have a new LegcCo election. Maybe the democrats lose this time, in which case the new LegCo passes the budget and chaos is averted. If the new council also refuses to pass the budget then the chief executive has to resign under Article 52.
This is presumably the point at which, in Pinkerton’s view, Hong Kong becomes “inoperable,” or there is, as the judges put it, a “paralysing effect on the operations of government.”
This event is provided for, however. Under Article 53 of the mini-constitution, the outgoing leader is temporarily replaced by the “Administrative Secretary, Financial Secretary or Secretary of Justice” in that order of preference, and a replacement chief executive must be chosen within six months.
Meanwhile, in the absence of a budget, the acting-chief executive can under Article 51 ask the LegCo for “provisional appropriations according to the level of expenditure of the previous financial year”. If there is no LegCo present, the chief executive can approve such appropriations without anyone else’s help. If LegCo is present, but unhelpful, it can be dissolved again.
In other words, no crisis, no chaos, no anarchy, no government grinding to a painful halt. I realise that the selectors of national security judges have other things on their minds than picking the brightest bulbs in our local judicial chandelier, and three years of rampantly prejudicial publicity have not helped.
Some of the more excitable defendants clearly expressed themselves in apocalyptic terms, but it is a commonplace political observation that promises in primary elections are generally diluted when the candidate has to present themself to the electorate in general, and diluted even more if they actually get elected.
Still, the situation seems to be that in the 1990s it was considered acceptable, in extreme cases, for a chief executive to be forced to resign by a partly elected legislature, and in the 2020s this has come to be regarded as the end of the world. Perhaps the Basic Law should be updated to reflect this.
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