O 170933Z MAR 05
FM AMCONSUL HONG KONG
TO SECSTATE WASHDC IMMEDIATE 9030
INFO AMEMBASSY BEIJING IMMEDIATE 
NSC WASHDC IMMEDIATE

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