四中全會將徹底改造「一國兩制」

This article points out that one country two systems in Hong Kong is finally dead. I copied down below the entire document with google translated version along with it.

中共剛剛結束的十九屆四中全會發表的公布,以及隨後全國人大常委會法工委主任、港澳基本法委員會主任沈春耀對公布的解讀,明確無誤地表明中共從今開始將逐步對鄧小平始創的「一國兩制」進行全面的改造。

The announcement of the Fourth Plenary Session of the 19th CPC Central Committee that just ended, and the subsequent interpretation of the announcement by Shen Chunyao, director of the Legal Affairs Committee of the Standing Committee of the National People’s Congress and the Hong Kong and Macao Basic Law Committee, clearly indicate that the CCP will gradually start to create Deng Xiaoping. “One country, two systems” is undergoing a comprehensive transformation.

會議公布本身只有簡單的兩句話:一,「嚴格依照憲法和《基本法》對港澳實行管治」;二,要「建立健全特別行政區維護國家安全的法律制度和執行機制」,已經透露了玄機。會後沈春耀在記者招待會上進一步透露了全會在討論香港問題時明確地提出了五點方針(詳見本文附錄)。筆者覺得值得注意的有以下幾點。

The announcement of the meeting itself has only two simple sentences: First, “strictly governing Hong Kong and Macao in accordance with the Constitution and the Basic Law.” Second, it is necessary to “establish a sound legal system and enforcement mechanism for special administrative regions to safeguard national security.” . After the meeting, Shen Chunyao further revealed at the press conference that the plenary session clearly proposed a five-point policy when discussing the Hong Kong issue (see the appendix of this article for details). The author thinks that there are the following points worth noting.

一,公報原文不再提「港人治港、高度自治」,而是直接談中央對香港的管治。

「港人治港、高度自治」是寫入中英國際條約性文件《中英聯合聲明》和香港的憲制性文件《基本法》之內,是香港主權得以順利移交,香港人不抗拒回歸的重要「社會契約」基礎。回歸頭五年,中共基本上信守這個承諾,但不旋踵就開始思考如何插手香港的管治,這個歷程如下:

First, the original text of the communique does not mention “Hong Kong people ruling Hong Kong, a high degree of autonomy”, but directly talks about the central government’s governance of Hong Kong.

“Hong Kong people ruling Hong Kong and a high degree of autonomy” are included in the Sino-British international treaty document “The Sino-British Joint Declaration” and Hong Kong’s constitutional document “Basic Law”. It is the smooth transfer of Hong Kong’s sovereignty and the importance of Hong Kong people not resisting the return. The basis of the “social contract”. In the first five years of the reunification, the CCP basically abide by this commitment, but without turning around, it began to think about how to intervene in Hong Kong’s governance. The process is as follows:

1. 從2003年50萬市民示威開始,中共就先從宣傳着手,散播香港需要中央管治的輿論。例如它最常用的論據,就是1997年只收回主權,沒有收回治權;1997年只有法律名義上的回歸,沒有政治實質上的回歸;1997年香港回歸,但香港人心沒有回歸。。。。。等等,這實際上已反映中共按捺不住管治香港的衝動。

  • Starting from the demonstration of 500,000 citizens in 2003, the CCP began with propaganda to spread the public opinion that Hong Kong needs central governance. For example, its most commonly used argument is that in 1997 only sovereignty was withdrawn and no power was withdrawn; in 1997, only the nominal return of the law, there was no return to political substance; in 1997, Hong Kong returned, but the hearts of Hong Kong people did not return. . . . . Wait, this actually reflects the CCP’s impulsiveness to govern Hong Kong.

2. 到2007年,中聯辦曹二寶就正式提出「建立第二支管治隊伍」的設想。這是中共第一次表明它要插手香港的管治,但提出時,知道違反了《基本法》,所以尤抱琵琶半遮臉,說這只不過是曹個人的「學習心得」,不方便直截了當地提出。

  • By 2007, the Liaison Office of the Liaison Office officially proposed the idea of ​​”establishing a second governance team.” This is the first time the CCP has indicated that it has to intervene in the governance of Hong Kong. However, when it was proposed, it was known that it violated the Basic Law. Therefore, it was a slap in the face. It was only a personal “learning experience”. It was inconvenient and straightforward. Proposed.

3. 到2009年,北京清華大學法學院副教授程潔(曾經參與全國人大常委基本法工作)在美國卡內基刊物 Hong Kong Journal(2009年秋季號)上發表文章,題目是「一個新政策的故事」(The Story of a New Policy),明確無誤地指出中國對香港政治「失去耐性」,從此「中央變得更為積極參與香港的政治、對港政策從過去偏重「一國兩制」中的「兩制」﹐變成現在更為重「一國」。

  • In 2009, Cheng Jie, an associate professor at the Tsinghua University School of Law in Beijing (who was involved in the Basic Law of the Standing Committee of the National People’s Congress) published an article in the Carnegie Journal of the United States, the Hong Kong Journal (Autumn 2009), entitled “The Story of a New Policy “The Story of a New Policy” clearly and unambiguously points out that China has “lost patience” against Hong Kong politics. From then on, “the central government has become more active in Hong Kong’s politics. The policy toward Hong Kong has shifted from the past to the “two systems” of “one country, two systems”. It has become more important now to “one country.”

4.到2014年中共拋出一個《「一國兩制」在香港特別行政區實踐》白皮書,首次提出中央對香港擁有「全面管治權」的概念,而原來「高度自治」被施加新的限制:「高度自治不是全面自治」。

  • By 2014, the Chinese Communist Party threw out a white paper entitled “One Country, Two Systems” in the Practice of the Hong Kong Special Administrative Region. It first proposed that the central government has the concept of “full governance” in Hong Kong. The original “high degree of autonomy” was imposed with new restrictions: “High degree of autonomy is not Full autonomy.”

5. 終於到今年(2019年)的四中全會索性直截了當不迂回地說要對香港「實行管治」,不再提什麼「港人治港、高度自治」了。

  • Finally, the Fourth Plenary Session of this year (2019) simply bluntly said that it would “respect the administration of Hong Kong” and no longer mention “Hong Kong people ruling Hong Kong and a high degree of autonomy”.

這個歷程表明,中共其實是一直處心積慮思考如何直接統治香港的,這種醞釀思考已經足足醞釀了17年,並不是如坊間所說是因應反送中條例而來的。

二,公報提出要「建立健全特別行政區維護國家安全的法律制度和執行機制」。

This process shows that the CCP has always been thinking about how to directly rule Hong Kong. This kind of thinking has been brewing for 17 years. It is not because of the anti-delivery regulations.

Second, the communique proposes to “establish a sound legal system and enforcement mechanism for special administrative regions to safeguard national security.”

很多人都已經指出,這意味着中共將很快要主動為香港的《基本法》第23條立法。根據《基本法》的規定,23條是由香港「自行立法」的。基於眾所周知的原因,香港迄今還缺乏適當的政治環境去進行立法(這一點林鄭月娥政府是承認的),在這種情況下,內地學者智庫提出要麼中央直接為特區立法(以國家安全涉及國防,特區無權過問為名),要麼中央直接宣布《中國國家安全法》、《反分裂法》等直接適用於香港(只需簡單地由人大常委決定把該法列入《基本法》附件三就可以)。現在還看不出北京會走哪一步,不過可以肯定的是,香港面臨為23條立法的壓力會愈來愈大。

Many people have already pointed out that this means that the CCP will soon take the initiative to legislate for Article 23 of the Basic Law of Hong Kong. According to the provisions of the Basic Law, Article 23 is “self-legislated” by Hong Kong. For reasons that are well known, Hong Kong has so far lacked an appropriate political environment to enact legislation (which the Lin Zhengyue government recognizes). Under this circumstance, the mainland scholars think that the central government directly legislates for the SAR (national security involves national defense, The SAR has no right to question the name.) The central government directly declares that the “China National Security Law” and the “Anti-Secession Law” are directly applicable to Hong Kong. (It is only necessary for the NPC Standing Committee to decide to include the law in Annex III of the Basic Law. ). It is still not clear what step Beijing will take, but what is certain is that Hong Kong faces increasing pressure on 23 legislations.

除了立法外(不管是23條或是引入大陸的國家安全法),公布還提到建立健全「執行機制」。這裏也有幾個可能做法:一是恢復香港警察的政治部,政府在過去已經討論了不少,這是震盪最小的做法。二是擴充現在中央公安部駐香港代表(即中聯辦內現有的「警務聯絡部」)並賦予一定的執法權。嚴格來說,該組織目前在香港沒有執法權,但從最近警察暴力事件中不斷有疑似大陸武警在港執法的片段被傳媒拍攝到可以看出,中共已經開始直接在香港執法了。目前這種做法是違反《基本法》的,將來這很可能就是合法化了。三是由國家安全在香港設立一個新的機構,與國安部甚至更高級的國家安全委員會對接,專門從事涉及國家安全的辦案機構,如果最後走到這一步,則對香港的震盪將會很大。

In addition to legislation (whether it is 23 or the national security law introduced into the mainland), the announcement also mentions the establishment of a sound “execution mechanism.” There are also several possible ways to do this: First, the political department of the Hong Kong police has been restored. The government has discussed a lot in the past. This is the least volatile practice. The second is to expand the existing representative of the Central Public Security Department in Hong Kong (the existing “Policy Liaison Department” in the Liaison Office) and give certain enforcement powers. Strictly speaking, the organization currently has no law enforcement power in Hong Kong. However, from the recent police violent incidents, it has been suspected that the fragments of law enforcement by the mainland armed police in Hong Kong have been photographed by the media. It can be seen that the CCP has begun to enforce directly in Hong Kong. At present, this practice is in violation of the Basic Law. In the future, this is likely to be legalized. The third is to set up a new institution in Hong Kong by national security. It is connected with the National Security Council and even the higher-level National Security Council. It specializes in handling cases involving national security. If this step is finally taken, the shock to Hong Kong will be great. .

三,沈春耀補充部分,提到要完善中央對特區行政長官和主要官員的任免制度和機制。

Third, Shen Chunyao added that it is necessary to improve the system and mechanism for the appointment and removal of the Chief Executive and principal officials of the SAR.

行政長官和主要官員如何任命,《基本法》已經有所規定,過去特首選舉,北京只是通過操控小圈子的選舉委員會就可以放心任由大家去選。所以第一、二屆特首,北京的任命都是形式上行使任命權。但是2017年的特首選舉,三個候選人(林鄭、曾俊華、胡國興)都是按照《基本法》和人大常委關於特首選舉的規定產生,其參選資格完全符合《基本法》和憲法的規定。但即使是這樣,由於三個人中曾俊華不但民望最高,而且在小圈子的選舉委員會中也最得民心,所以若果任由1200選委自由選擇的話,是絕對輪不到林鄭的。在這情況下,中共就透過種種渠道放風說,如果選出來的人不合中央意願的話則中央有權不任命。結果很多選委都識做,讓林鄭以777票「當選」。現在北京的做法就是要使這種實質上直接指派特首的做法合法化、恒常化,這就嚴重違背了制定《基本法》時的初衷。

How the Chief Executive and principal officials are appointed, the Basic Law has already stipulated that in the past, the election of the Chief Executive, Beijing can safely let everyone choose by controlling the election committee of the small circle. Therefore, the first and second term chief executives, Beijing’s appointments are all formally exercising appointments. However, in the 2017 Chief Executive Election, the three candidates (Lin Zheng, Zeng Junhua, and Hu Guoxing) were all elected in accordance with the Basic Law and the Standing Committee of the National People’s Congress on the election of the Chief Executive. Their eligibility for election is in full compliance with the Basic Law and the Constitution. But even then, because of the three people, Zeng Junhua not only has the highest popularity, but also the most popular among the election committees in the small circle. Therefore, if the 1200 election committee is free to choose, it is absolutely impossible to get Lin Zheng. Under this circumstance, the CCP has said through various channels that if the elected people do not meet the central will, then the central government has the right not to appoint. As a result, many members of the election committee knew how to make Lin Zheng “elected” with 777 votes. The current practice in Beijing is to legalize and regularize this practice of directly assigning chief executives. This is a serious violation of the original intention of the Basic Law.

除了特首要直接由北京指派式任命外,將來對主要官員也將做出指派式任命。本來主要官員如何任命,《基本法》的規定是:特首提名,中央任命。提名權在特首,而中央的任命權是程序性的或非實質性的。雖然筆者知道,從梁振英時代開始,北京就不斷插手他的組閣過程,很多人是先去深圳面試獲准後才由梁振英「提名」的,但畢竟這並不是名正言順的做法。現在北京可能覺得不必再那麼迂回了,根據沈春耀的解釋,將來很可能主要官員的任命權也是直接由中央決定,特首的組閣過程是名義上的,內閣班子實際是北京決定的,再交特首名義上提出。這樣,《基本法》賦予特首的「提名權」將被貶為「被通知權」。

In addition to the special appointments directly from Beijing, the appointment of appointments to key officials will be made in the future. How the principal officials were appointed, the provisions of the Basic Law are: nominations for chief executives, appointments by the central government. The nomination is in the chief executive and the central appointment is procedural or non-substantive. Although the author knows that since the Liang Zhenying era, Beijing has been intervening in his cabinet formation process. Many people are “nominated” by Leung Chun-ying after they have been interviewed in Shenzhen. But after all, this is not a justification. Now Beijing may feel that it is no longer necessary to go back. According to Shen Chunyao’s explanation, it is very likely that the appointment of the principal officials will be directly decided by the central government. The process of forming the chief executive is nominal. The cabinet is actually decided by Beijing. Raised on. In this way, the “nomination power” given to the Chief Executive by the Basic Law will be reduced to “the right to be notified”.

四,將來人大「釋法」可能制度化和恒常化,實質性地取消香港終審權。

Fourth, in the future, the “Interpretation of Law” of the National People’s Congress may be institutionalized and constant, and the right of final adjudication of Hong Kong will be substantially cancelled.

過去中共對人大「釋法」採取比較克制的態度,每次釋法時都強調是不得已的。但根據沈春耀的補充說明,四中全會提出要「完善」全國人大常委會對《基本法》的解釋制度,這就意味着將來人大釋法可能變成制度化和恒常化了。這個發展的危險性有二:

In the past, the CCP adopted a more restrained attitude toward the “interpretation of the law” of the National People’s Congress. Every time the interpretation of the law was emphasized, it was a last resort. However, according to Shen Chunyao’s supplementary explanation, the Fourth Plenary Session proposed to “improve” the interpretation system of the Basic Law by the Standing Committee of the National People’s Congress, which means that the interpretation of the NPC may become institutionalized and constant. There are two risks to this development:

一是中共可以更加隨心所欲的修改《基本法》的精神而毋須修改《基本法》的文字,這樣它就可以振振有詞地自稱「嚴格按照基本法的規定辦事」。事實上我們在過去22年目睹它如何在不改動《基本法》一個字的情況下把《基本法》的精神糟蹋蹂躪到體無完膚。如果它不是屢屢這樣做,今天也不至於激發市民這麼大的民憤。

First, the CCP can more arbitrarily modify the spirit of the Basic Law without modifying the text of the Basic Law, so that it can plausibly call itself “in strict accordance with the provisions of the Basic Law.” In fact, we have witnessed in the past 22 years how it has ruined the spirit of the Basic Law without changing the word “Basic Law”. If it does not do this repeatedly, today will not inspire the public to be so angry.

二是中共實質上把人大常委會變成過去殖民地時代的樞密院,實質地取消香港終審權。英國法律系統中的樞密院扮演終審庭的角色(回歸前,香港的終審案均在英國上議院的樞密院司法委員會 Judicial Committee of the Privy Council)審理。按照《基本法》的規定。回歸後香港擁有終審權。但是,一旦人大釋法成為制度化和恒常化,則香港終審法院任何裁決如果不合京意時,人大使出一招釋法就可以否決香港終審法院的裁決,變成實質的樞密院。屆時香港的所謂終審權就會化為烏有,只剩下紙面上的裝飾品而已。

Second, the CCP essentially changed the Standing Committee of the National People’s Congress into the Privy Council of the past colonial era and substantially abolished the power of final adjudication in Hong Kong. The Privy Council in the English legal system plays the role of the Court of Final Appeal (before the reunification, the final case in Hong Kong was heard in the Judicial Committee of the Privy Council of the House of Lords). In accordance with the provisions of the Basic Law. After the reunification, Hong Kong has the right of final adjudication. However, once the NPC interpretation becomes institutionalized and constant, if the ruling of the Hong Kong Court of Final Appeal does not conform to Beijing’s intention, the ambassador’s ambassador can veto the ruling of the Hong Kong Court of Final Appeal and become a substantive Privy Council. By then, the so-called final adjudication power in Hong Kong will be turned into nothing, leaving only the decorations on paper.

四中全會為香港帶來這些噩耗,香港人不能不知,思想上不能不有所準備。

附錄:沈春耀闡述四中全會對香港問題的討論,提出五點方針:

The Fourth Plenary Session has brought these bad news to Hong Kong. Hong Kong people cannot help but know that they cannot be prepared.

Appendix: Shen Chunyao elaborated on the discussion of the Hong Kong issue by the Fourth Plenary Session and proposed five guidelines:

一是堅持依法治港治澳,維護憲法和《基本法》確定的特別行政區憲制秩序,完善特別行政區同憲法和《基本法》實施相關的制度機制,堅持以愛國者為主體的「港人治港」、「澳人治澳」,提高特別行政區依法治理水平;

First, adhere to the principle of administering Hong Kong and Macao according to law, safeguarding the constitutional order of the special administrative region as determined by the Constitution and the Basic Law, improving the system and mechanism related to the implementation of the Constitution and the Basic Law by the Special Administrative Region, and insisting on the “Hong Kong people ruling Hong Kong” with the Patriots as the main body. “Our Australians governing Macao” to improve the level of governance in special administrative regions;

第二,完善中央對特別行政區行政長官和主要官員的任免制度和機制、全國人大常委會對《基本法》的解釋制度,依法行使憲法和《基本法》賦予中央的各項權力;

Second, improve the system and mechanism for the appointment and removal of the chief executives and principal officials of the special administrative region, the interpretation system of the Standing Committee of the National People’s Congress on the Basic Law, and exercise the powers conferred on the central government by the Constitution and the Basic Law.

第三,建立健全維護國家安全的法律制度和執行機制,支持特區強化執法力量;

Third, establish and improve the legal system and enforcement mechanism for safeguarding national security, and support the SAR to strengthen law enforcement forces;

第四,完善香港澳門融入國家發展大局,和內地優勢互補,協同發展的機制,推進粵港澳大灣區建設,支持香港發展經濟改善民生,解決深層次問題;

Fourth, improve the integration of Hong Kong and Macao into the overall situation of national development, complement the advantages of the Mainland and coordinate development, promote the construction of the Guangdong, Hong Kong and Macao Dawan District, support Hong Kong’s development of the economy, improve people’s livelihood, and solve deep-seated problems;

第五,加強對香港、澳門社會特別是公職人員和青少年的憲法和《基本法》教育、國情教育、中國歷史和中華文化教育,增強香港、澳門同胞國家意識和愛國精神。

Fifth, strengthen the constitution and basic law education, national education, Chinese history and Chinese culture education for Hong Kong and Macao society, especially public officials and young people, and enhance the national consciousness and patriotism of Hong Kong and Macao compatriots.

沈春耀強調,堅定維護國家主權安全發展利益,維護香港澳門長期繁榮穩定,絕不容忍任何挑戰「一國兩制」底線的行為,絕不容忍任何分裂國家危害國家安全的行為,堅決防範和遏制外部勢力干預港澳事務,和分裂顛覆滲透和破壞活動。

Shen Chunyao stressed that it is firmly committed to safeguarding the interests of national sovereign security and safeguarding the long-term prosperity and stability of Hong Kong and Macao. It will not tolerate any behavior that challenges the “one country, two systems” bottom line. It will not tolerate any separatist actions that endanger national security, and resolutely prevent and contain external forces from interfering in Hong Kong and Macao. Business, and split subversion infiltration and destruction activities.

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