Education Bureau’s “New Interpretation” of the Basic Law for Children

Real Hong Kong News

14th February, 2016

Education Bureau’s “New Interpretation” of the Basic Law for Children

CoverThe Education Bureau has recently published a website providing teaching materials regarding the Basic Law. Here we review some of its contents.

Unit 1: The Historic Background of the Basic Law

The unit starts off with the question “Who owns Hong Kong?” The simple answer, of course, is the People’s Republic of China. But how did the PRC come to take possession of Hong Kong, and is such ownership just?

Page 3 of the unit contains the statement, “The Golden Bauhinia Statute [sic] celebrates Hong Kong’s return to China in 1997. This shows that Hong Kong has been a territory of China for ages.” But the phrase “has been” implies that Hong Kong never ceased to be a part of China, even when ruled by the British. Furthermore, what does the EDB mean by “return to China”? If we take China to mean the PRC, then it makes no sense to return a territory to a state that did not even exist when the Treaty of Nanking was signed. On the other hand, if we take China to mean some kind of abstract entity that transcends the PRC, we start running into all sorts of problems. For example, in many periods of history, such as the famous Three Kingdoms era, China was not even a single state. How are we to define what “China” is and what it means to “return” to it?

Page 6 lists a set of as criteria “to determine who owns a particular territory”. Two stand out in particular:

  • Blood ties: that the inhabitants belong to the same race.

This is a bad criterion to use: most states are composed of citizens from many races, even if a particular race may be the majority. Hong Kong itself has citizens from all over the world.

  • Language system: that they speak the same language.

Many states are multilingual. Hong Kong itself speaks both Cantonese and English.

Furthermore, the most important criterion of all is missing: the wishes of the people living in the territory under dispute.

Finally, page 6 ends with, “We should think about these points when we judge whether Hong Kong ‘has been part of the territory of China since ancient times’ as the Preamble states.” This sentence forms a huge disconnect with the theme of the page. The question of who owns a territory is separate from that of who owned it in the past.

Pages 7-8 give examples of evidence that Han peoples lived in Hong Kong before the arrival of the British. This evidence is used to support the claim that “Hong Kong has been part of the territory of China since ancient times”. However, there exists an unresolved disconnect between the existence of a historical Han presence and Hong Kong belonging to a Chinese state in the present day (once again, the phrase “has been” rather than “was” implies continued association with China). Furthermore, the former independent state of Nanyue was mentioned, but the fact that it was independent from the state of Han is completely glossed over. In fact, Nanyue has closer ties to present-day Vietnam than it has with the PRC, with 越 and 粵 both becoming “Việt” in Vietnamese.

Page 10 covers “unequal treaties” and implies that the three treaties between the British and Qing should be classified as such. It states, “The key point of the argument is whether the treaties are ‘unequal’ and therefore ‘invalid’.” The student is led towards the official view that the treaties were invalid and that Hong Kong was never rightfully British.

Finally, on page 12, the situation of Hong Kong is compared to that of an adopted son. This story is clearly designed to make students feel a certain way about Hong Kong’s historical status regarding China, even though the connection between the two is weak at best.

Page 17 of the unit contains a surprise: the possibility of independence is raised. It is asked which of three options is best suited for Hong Kong: the “Mainland Model”, independence, or “One Country, Two Systems”. One must wonder whether the EDB has a model answer in mind and what consequences there may be for giving a politically incorrect answer. The “Brief Summary” at the bottom of this page heavily implies that the government views One-Country-Two-Systems (1C2S) as the “correct” answer to the question posed.

A “Think” box on page 19 asks why the majority of Basic Law Drafting Committee members being Chinese rather Hong Kong locals. It effectively asks the student to justify what others might view as a huge flaw in the Basic Law drafting process.

Finally, page 21 contains a summary of the unit. The government’s stance is stated firmly, “Hong Kong is always an inalienable part of China and it has been so since ancient times.”

Unit 2: Basic Ideas of the Basic Law

Page 5 imagines a conversation in the 80s where a Hongkonger tries to convince his friend that the Basic Law will provide adequate protections to the Hong Kong people. The friend adopts this view, but stresses that the Basic Law must be very clear on Hongkongers’ rights for this to happen. However, nothing is said about Hongkongers’ doubts at the time that China would even honour the Basic Law or the Joint Declaration. The recent case of the disappearing booksellers demonstrates that these doubts were well justified.

Pages 6-9 wrongly portray the reasons for 1C2S as purely socio-economic rather than political. The brief summary on page 9 states, “When Hong Kong returns to China, huge differences exist in social and economic systems and in living standards. Chinese leaders understand this. Thus, the principle of ‘one country, two systems’ is used to restore the confidence of Hong Kong people.”

Pages 11-13 ask the student to make a decision: “I think Hong Kong should be ruled by ____ after it returns to China.” The option for independence, as proposed on page 17 of Unit 1, is now nowhere to be found. The student is influenced in his/her decision-making by being reminded that the British had already stated that they had no intention of ruling Hong Kong after 1997, rendering one of the options moot.

Page 14 states that there is a difference between a “high degree of autonomy” and “complete autonomy”, which the EDB equates with independence. It is taken for granted that the question on page 17 of Unit 1 was answered in favour of 1C2S and not independence.

The unit contains two graphs showing emigration from Hong Kong before and after 1992. It is implied that the publication of the Basic Law was successful in easing the fears of the Hong Kong people, and led to a drop in emigration after 1992. The EDB ignores the fact that those with the means to emigrate would have already done so by 1992, leading to a natural decrease in emigration numbers after this date.

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Unit 3 The Relationship between (China) Central Government and SAR

Page 4 depicts a fictional news report where Hong Kong is listed among a list of countries, and claims that this is wrong (the question posed is not “Is this wrong?” but “What is wrong with this news report?”). This requires the student to accept the provisions of the Joint Declaration and the Basic Law.

Page 5 depicts the appointment of CY Leung by the PRC government and states, “The ceremony is very necessary for Hong Kong. Why?” The student is led to believe that the appointment of the Chief Executive (CE) of Hong Kong by the PRC government is justified. As a counterexample to this, note that Westminster has no control over the election of the Scottish, Welsh, or Northern Irish first ministers or any other members of their respective parliaments.

Page 7 raises the difference between a “high degree of autonomy” and “complete autonomy”, an issue previously mentioned in Unit 2.

Page 8 gives an example of a person breaking the law in China and then escaping to Hong Kong. Students are expected to understand that Chinese authorities cannot simply enter Hong Kong to bring the person back to China for punishment. However, recent events regarding missing booksellers in Hong Kong suggest that China does not respect this principle. Furthermore, the learning package does not address concerns that China might interfere with the autonomy of Hong Kong regarding affairs with no cross-border elements to them at all.

Page 9 attempts to reassure Hongkongers that the level of autonomy granted to them is much higher than that offered to ethnic regions such as Xinjiang or Tibet. This is hardly reassuring.

Finally, page 12 covers the controversial Article 23 of the Basic Law, referring to our “constitutional duty” to implement a national security law in Hong Kong.

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Unit 4 Hong Kong Citizens’ Basic Rights and Responsibilities

The opening pages explains briefly the rights and freedoms Hongkongers are promised under the Basic Law. Page 8 delves into one of these freedoms, the freedom of procession and demonstration. The student is asked to analyse three articles and commentaries, one of which is as follows:

Hong Kong is sometimes seen as a “city of protests” because people here have accepted street processions and demonstrations as part of their “normal life”. Of course, this shows that Hong Kong people enjoy much freedom. But it also shows that life in our society has become politicized. According to government statistics, as many as 18,000 street processions and demonstrations took place in Hong Kong from July 1997 to December 2005, averaging six protests every day. Protest is certainly a means of self-expression, but it is not the only means. If we do not use effective channels of communication which are available, we may be in danger of being simplistic and superficial in our understanding of democracy.

Will such a view influence students to become more wary of protests?

Page 9 states, “If the people’s discontent and anger are not expressed, they might explode one day and things might get out of hand.” This statement is especially relevant in light of the so-called “Fishball Revolution” of 8-9 Feb 2016. However, the statement fails to consider that not only must Hongkongers’ grievances be expressed, the government must be seen to respond to such grievances. Otherwise, Honkongers’ anger will only continue to build.

In addition to the quoted passage from page 8, page 11 also contains statements seemingly designed to discourage protest in Hong Kong: “We have freedom to express our opinions and demands. But when we decide on certain ways of expressing ourselves, we should also be thinking about how these ways affect other people and society.”

Pages 16-18 refers to the definition of permanent residence in Hong Kong, namely Article 24 of the Basic Law. Controversies over Article 24, such as the cases of Ng Ka-Ling and Chong Fung Yuen, are not mentioned.

Units 5 and 6 refer to the economy. We shall skip over them.

Unit 7: The Basic Law and Daily Life

Pages 5-6 emphasize that Article 5 of the Basic Law does not mean that nothing is allowed to change at all from 1997 to 2047 and gives examples of policy changes by the Hong Kong government. Page 6 asks, “Are there other urgent needs in Hong Kong? What challenges is Hong Kong facing? In what direction should Hong Kong go?” The issue of minimum wage is then given on page 7. The legislative process of the Minimum Wage Ordinance is grossly simplified, and remaining issues are not addressed, such as the fact that any increases to the minimum wage are almost entirely up to the CE alone: LegCo can only accept the CE’s proposed minimum wage or maintain the status quo.

The second, larger part of the unit describes the role of community organizations in Hong Kong.

Unit 8: The Governance and Political Development of Hong Kong

Unit 8.1 describes the executive branch of Hong Kong government, namely the CE and ExCo. Page 7 quotes Article 43 of the Basic Law: the CE is “the head of the Hong Kong Special Administrative Region and shall represent the Region,” rather than simply the head of the executive branch of government. This was recently reiterated by CY Leung, who placed himself “transcendent” to all three branches of government in Hong Kong, echoing a statement by Liaison Office director Zhang Xiaoming. This contradicts other sections in this teaching package emphasizing the separation of powers.

Unit 8.2 describes LegCo. On page 14, the student is asked whether the NPCSC’s power to deem laws as unconstitutional affects Hong Kong’s autonomy.

Unit 8.3 examines the relationship between the executive and the legislature. This includes question-and-answer sessions at LegCo, laws regarding the budget, and the CE’s policy addresses.

Unit 8.4 covers judicial independence. The Spirit of the Laws (1748) by Montesquieu is mentioned. It is not mentioned how CY Leung and Zhang Xiaoming’s claim of the CE’s “transcendence” over the three branches of government is consistent with the ideal of the separation of powers, which includes judicial independence.

Unit 8.5 covers CE selection. The contrasting parliamentary system used in some countries is hinted at in the Think box of page 26, but no details are given. Page 28 attempts to explain the concepts of “actual situation” and “gradual and orderly progress” in relation to the democratization (or lack thereof) of the CE selection process, but like the official explanations from the NPCSC itself, the explanations of the EPD are weak and unconvincing. Page 30 details the so-called “five-step process” for amending the CE selection process.

Unit 8.6 covers the election of LegCo members. Page 33 asks the student for their opinion on the Functional Constituencies. It is noted that Donald Tsang once said:

Universal Suffrage, as we all know, has to show the principles of “universality” and “equality”. I have said in the past, and I can reiterate today, that the current functional constituencies are not fully consistent with the principles of “universality” and “equality”. They cannot be kept in the system of the 2020 LegCo election in the current form.

The Brief Summary on page 34 states somewhat incorrectly that when it comes to universal suffrage in LegCo, “Hong Kong is gradually moving forward towards this objective.” With the exception of the 2011 electoral reform package, of questionable value, it appears that no progress has been made.

Page 36 refers to the CE’s ability to dissolve LegCo once per term and asks why this provision is important, a leading question.

Page 38 states that universal suffrage for the CE is a prerequisite to universal suffrage for LegCo, although such a requirement does not exist in the Basic Law.

Unit 9 refers to external affairs. We shall skip over it.

Unit 10: Interpretation and Amendment of the Basic Law

The Summary of this unit says:

If one day it is found necessary to amend the Basic Law, there is a mechanism for us to follow. And in following this mechanism, there is no fear that the basic principles which are cornerstones to our prosperity and stability would be lost.

The second sentence quoted here is clearly the opinion of the EDB and cannot be taken as fact.

The NPCSC has been asked to interpret the Basic Law twice by the Hong Kong government and once by the Court of Final Appeal, but it has also interpreted the Basic Law on its own initiative, for example by declaring that Hong Kong would not enjoy universal suffrage in the 2007 and 2008 elections. That the NPCSC can interpret the Basic Law at any time without invitation brings 1C2S into question. This unit does not mention this.

Enrichment Unit 1: Travel and the Basic Law

The summary of this unit mentions that the Basic Law provides consular protection to Hongkongers via the Chinese embassy. This ignores the status of non-Chinese nationals living in Hong Kong and the curious situation that a permanent resident of Hong Kong need not have citizenship in the country that claims Hong Kong.

Enrichment Unit 2 covers religious freedom

Enrichment Unit 3: The Rule of Law and the Basic Law

Pages 8-9 cover judicial review. Page 9 especially presents the opinion that JR may currently be abused by some people.

Pages 13-16 cover the cost and benefits of the rule of law. Although the EDB eventually concludes that the rule of law is priceless, it seems that the exercise is counterproductive to teaching this point, with much emphasis placed on the cost side of the equation.

Pages 17-18 cover civil disobedience, using Gandhi’s Salt March as a positive example. The purpose of this section seems to be to condemn recent protests in Hong Kong, claiming that protesters did not follow the tenets of civil disobedience:

  • They did not exhaust all other means of invoking change
  • They did not protest in a peaceful and rational manner
  • They did not accept the consequences of their actions by pleading guilty in court.

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The EDB concludes with:

Civil disobedience may urge lawmakers or government to revise unjust laws to further improve the rule of law. However, if people abuse civil disobedience and break the law frequently to show their “resistance” to government, public respect of the law would diminish and society would fall into chaos.

Note that “resistance” is in quotation marks.

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