ACTING CE TSANG PLAYING DEFENSE

C O N F I D E N T I A L HONG KONG 001444


DEPARTMENT FOR EAP AND EAP/CM

E.O. 12958: DECL: 03/17/2030
TAGS: PREL PGOV HK CH
SUBJECT: ACTING CE TSANG PLAYING DEFENSE

REF: A. STATE 47822

B. HONG KONG 1351 AND PREVIOUS

Classified By: JAMES KEITH, CONSUL GENERAL. REASONS: 1.4 (b, d).


1. (C) Summary and comment/suggestion: On March 17, I met
Hong Kong Acting Chief Executive (CE) Donald Tsang to convey
U.S. concern about the rule of law in Hong Kong (ref a).
Tsang insisted that the Hong Kong Government (HKG) had
reached its position on the two/five year question through
common law methods, after a reasoned study of documentation
relating to the drafting of the Basic Law. He understood
that Beijing would be releasing some or all of those
documents, which the HKG would disclose. Tsang believed that
the decision in favor of a two-year tenure for the next CE
was accepted by most of the community, and argued that had
the decision been for five years, there would probably have
been public demonstrations in opposition, since it would have
postponed the further democratization expected in the 2007 CE
election. I emphasized that our concern was not about the
politics or popularity of the Government's decision, but
whether it was solidly grounded in the law.


2. (C) Comment/Suggestion: Tsang did not depart from the
approach that has driven the HKG since its March 12 press
conference. He asserted that the HKG's decision was
consistent with the Basic Law and with the HKG's strong
commitment to the rule of law in Hong Kong. He and his
Secretary of Justice are steadfastly ignoring legal opinion
in Hong Kong as they defend that position, including the Hong
Kong Bar Association and internationally recognized legal
scholars at Hong Kong's universities and law schools. In so
doing, they are depending on popular opinion, which is
influenced by former and unpopular CE Tung's departure and an
incipient honeymoon period for the Acting CE. We have done
the HKG a favor by registering firmly our concern about the
rule of law that arises from this situation. Tsang and the
central authorities need to cogitate on the long-term damage
that could be done to Hong Kong's reputation for transparency
and respect for the rule of law. This is not about opinion
polls or the lack of street demonstrations; it is more
important than that. I believe it is necessary for us to be
on record with a more focused statement on the dangers to the
rule of law in Hong Kong, and I recommend that the message
come from the podium in Washington to ensure it is not
dismissed as ad hoc commentary from the field. End summary
and comment.


3. (C) On March 17, I delivered on instruction the demarche
contained ref a to Acting CE Donald Tsang, adding that we did
not intend to make either the contents of the demarche or the
fact of the meeting public. I observed that we raised these
questions in a spirit of friendship and support, and with a
desire to let the HKG know how its actions were being
perceived in the international community. I explained that
our concerns were not focused on the substance of the choice
of two versus five years for the tenure of C.H. Tung's
successor. Rather, the U.S. Government was entirely focused
on legality of the process and its implications for the
continued integrity of rule of law in Hong Kong under "one
country two systems." In response to his question, I assured
Tsang that Washington had already received all the documents
explicating the Secretary of Justice's reasoning for adopting
a new point of view on this question (ref b).


4. (C) Acting CE Tsang responded that the public response
thus far indicated to him that the majority of the community
was convinced that it was better for C.H. Tung's successor to
serve for two years. This included members of the U.S. and
international business community. Tsang explained that
Secretary for Justice Leung had made several trips to Beijing
to research the issue, reading various documents and records
from the drafting of the Basic Law. Through her study of the
documents indicating the drafters' legislative intent, she
became convinced that the drafters had not intended for
Article 53, which provides for replacing a Chief Executive,
to be directly linked to Article 46, which specifies that the
CE's term of office is five years, but rather to Annex I, and
thus to the tenure in office of the Election Committee. The
Executive Council, as well as Tsang himself, had been
convinced by her reasoning and had accepted the decision.
The key factor, according to Tsang's self-professed
"unprofessional but logical" analysis, was that, since the CE
was not returned by universal suffrage but rather by the
Election Committee, the term of a CE could not extend beyond
the mandate of the Election Committee that selected him or
her. In response to my question, Tsang said that he
understood that the Beijing authorities would be making
public the records on legislative intent and other matters
that had been provided to Leung. The HKG intended to
disclose this additional information as soon as possible. I
encouraged Tsang to do so soonest, citing the lack of
transparency to date as an important impediment to acceptance
of the HKG's interpretation among legal scholars in Hong
Kong.


5. (C) Tsang said that the HKG had reached its decision by
following common law procedure, not by simply accepting a
central government diktat. Constitutions were always subject
to interpretation, including differences of opinion as to how
they should be interpreted, he pointed out. In this case,
where the constitutional issue was related to the authority
of the sovereign, the central government in Beijing, it was
even more difficult. Legal debate would undoubtedly
continue. Furthermore, there were bound to be more such
controversies in the future. Tsang thought it was fortunate
that in this instance Hong Kong had been able to come to
agreement with the central government; that might not be the
case in the future.


6. (C) As to the actual tenure of the next CE, Tsang thought
that if the decision had been for a five-year term of office,
there would have been tremendous public opposition. It would
have brought people out onto the streets, outraged because
the extremely important 2007 CE election would have been
forestalled. Even though there would not be universal
suffrage in 2007, there would be a greater degree of
democratization. Politically, a two-year term was much more
acceptable.


7. (C) I reiterated that, on the substantive question of two
years versus five, we had no views. That was a matter for
the Hong Kong people and their governments here and in
Beijing. Our concern was that the process be fully grounded
in the rule of law, and that there had been a lack of
transparency in the decision-making process. One could
understand the need for prudence in considering amendments to
or interpretations of the Basic Law, but in so narrow and
technical a case as this one an interpretation from the
National People's Congress (NPC) Standing Committee might
have provided the necessary legal foundation, a foundation
that appeared to be missing at present.


8. (C) Sighing visibly, and thereby letting slip a tinge of
frustration associated with the unenviable position he had to
defend, Tsang agreed that in hindsight the HKG should and
could have done more to prepare for this situation. No one
expected that Article 53 would be used. Nevertheless, once
again missing (perhaps deliberately) the key point I tried
repeatedly to register, Tsang reiterated his belief that the
public was satisfied with both the outcome and the process.
Of course, the opposition was not satisfied, but that was a
different matter. For the Hong Kong people, preserving the
rule of law and human rights were the most important issues,
and the HKG would continue to act with this in mind. Ending
the meeting, he asked the Consul General to convey his thanks
to Secretary Rice for her concern for the future of Hong
Kong. I undertook to do so.


KEITH