在本週的專欄， Evan 認為張曉明最近張曉明的「特首超然於行政、立法、司法三個機關之上」的言論，是挑戰我們建立「香港人身份」的框架。「香港身份計劃 (HKIDP) 」由方禮倫創辦，是私人資助項目，旨在記錄、歸檔和探討各種關於香港身份的活動。譯文由 Alan Chiu 提供，英文原文在譯文之下。
In his weekly column on identity, Evan argues that hidden in Zhang Xiaoming’s recent comments on the separation of powers between the executive and judiciary is a challenge to the framework on which our identity as Hong Kong people is built. Evan Fowler is the founder of the Hong Kong Identity Project (HKIDP), a privately funded initiative to document, archive and explore the Hong Kong identity. The Chinese translation is provided by Alan Chiu.
Given the recent comments by Zhang Xiaoming, the head of the central government’s liaison office in Hong Kong, it might be a good time to consider the role an independent judiciary – and more generally an understanding of the rule of law – has on our sense of being Hong Kong people.
Let us first consider what was said last Saturday at an event to mark the 25th anniversary of the Basic Law.
Referring to the separation of powers between the executive and administrative branches of government and the judiciary, Zhang was reported as saying “Hong Kong is not a political system that exercises the separation of powers; not before the handover, not after the handover,” and that such a separation of powers could apply only to a sovereign state. He went on to say that the chief executive “possesses a special legal position that transcends the executive, the legislature and the judiciary.”
Chief Executive Leung Chunying, supported by the usual crowd of pro-government mouthpieces including Executive Councillor Regina Ip and Secretary for Justice Rimsky Yuen, were soon out defending a statement that seemed to everyone I know, regardless of political persuasion, a clear violation of what was guaranteed by the Basic Law.
Article 2 of the Basic Law states that the National Assembly cedes Hong Kong the authority to “exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication”; article 19 that Hong Kong “shall be vested with independent judicial power”; and article 85 that local courts “shall exercise judicial power independently, free from any interference”.
It is not simply a case of needing to understand that Basic Law “from each other’s perspective”, as Yuen put it, when one perspective is quite clearly not what was understood nor agreed upon as written. It has also been extremely disappointing to see how far some people are prepared to go to to avoid having to speak truth to power, including quoting Deng Xiaoping’s position at the start of the Sino-British negotiations that would result in the Joint Declaration, on which the Basic Law was drafted. A starting position should not be taken as representative of an end position.
The tragedy of these negotiations is that it they are to my knowledge the only post-colonial agreement that did not involve the people whose lives would be directly affected by the change of sovereignty. Compounding this has been not only reluctance but outright opposition from Beijing to acknowledging and respecting the wishes of Hong Kong people since the territories return to our motherland. Hong Kong people are being demanded to identify with a nation that neither respects nor represents them.
Since 2007 I have spoken with close to ten thousand people about how they identify with Hong Kong as home. I have yet to meet anyone who in their identification with this city, and this is a personal identification, does not consider the rule of law as integral to their understanding of being a Hong Kong person. This is expressed in many ways.
When people speak of Hong Kong being a safe city, it is said from the position of confidence in the police and legal process. The point is not that the exercise of authority has made Hong Kong safe, but that this authority is understood to be exercised fairly, and that this relationship with power has shaped a community that is, on the whole, law-abiding. People respect the law. They do not fear it.
Consider now the position on the Mainland. Can it be said that the law is respected in the same way as to be considered a core institution representative of China and the Chinese people? Such a system and understanding of the law would represent a serious regression for Hong Kong should they be adopted. It would not only set this city back, and represent a loss of our “competitive edge” as a place to live and do business. It would, more importantly, undermine the foundation on which we understand the nature and dynamics of authority and power, and of our personal position and relations with officialdom.
The significance of this understanding is reflected in how surprisingly many people in Hong Kong will point specifically to the rule of law as being important to them. This understanding is not for a legal or political abstraction, but is instead personal. It is an understanding that is fundamental to how we constructs our sense of self and we engage with and connect with the world around us. It is an understanding on which we feel, becoming integral to our experience of life. It defines in us a sense of security and of individual rights grounded on an understanding of equality before the law. The way we relate to authority, and how we define ourselves and relate to each other, owes much to our presumption that ours is a society governed by the principle of equality before the law guaranteed by an independent judiciary.
What Zhang Xiaoming challenges in his statement is both the nature and the framework of the “core institutions” around which Hong Kong people understand themselves and their home. It is irrelevant whether these represent a “western” framework or understanding. What matters is it is what Hong Kong people understand. We have for at least a generation lived in and been shaped by a world that can no longer sustain such marked divisions as to label a practical understanding of the law as “Chinese” or “Western”. There are no isolated histories to justify such distinct perspectives. Power and legitimacy come not from history but from the people from whom they are derived.
Even if we were to believe Beijing, and accept that the Basic Law should be read in a particular way, does this make it right on those whose lives and very sense of self will be changed? If Hong Kong people have so fundamentally misunderstood, and have so misread what has been put to writing, the Basic Law has little value other than to those with know Beijing’s mind.
In adopting Zhang’s perspective of Hong Kong we must fundamentally alter not only what Hong Kong is but what it means to us, and how we understand ourselves. How would growing up in a city where the law derives its authority from and is subservient to the closed politics of a city two thousand kilometres away affect who we are? Would we relate to Hong Kong in the same way, and who would we be?
不過，首先讓我們重溫上週六《基本法》頒布 25 周年研討會上，張曉明說過什麼。
《基本法》第 2 條規定全國人民代表大會授權香港依法「實行高度自治，享有行政管理權、立法權、獨立的司法權和終審權。 」，第 19 條則規定香港「享有獨立的司法權」；而第 85 條規定，香港的法院「獨立進行審判，不受任何干涉」。
自 2007 年以來，我差不多經已與近 10 萬人談及他們是如何視香港為家。我還沒有遇到任何一個人一方面認同自己是香港人這一個人身份，卻沒考慮過這城市的法治制度。而這可從不同方面看出來。