Hong Kong is undergoing deepening tensions over its political future as a self-governed territory under Chinese sovereignty. Democratic activists have demanded that residents win the right to elect Hong Kong’s top leader, called the chief executive, without procedures that would ensure that only candidates approved by Beijing appear on the ballot. Many of the activists have endorsed Occupy Central with Love and Peace, a movement whose members have said they will stage civil disobedience protests in the city’s financial heart if electoral reform plans proposed by the Hong Kong government and Beijing, possibly later this year, do not meet their criteria for universal suffrage.
Starting Friday, Occupy Central will hold an unofficial referendum giving residents a choice of rival plans for voting procedures, and it plans later to support a similar vote pitting the winning proposal against the government’s proposal. Meanwhile, the Chinese Communist Party has been attempting to consolidate its influence over Hong Kong and is worried about the ferment of opposition, as are pro-establishment politicians and business groups in the city. In an interview, Michael C. Davis, a professor of law at the University of Hong Kong, explained what is at stake:
Hong Kong’s chief executive is already elected through a committee, so why is there rising contention about how the chief executive is elected?
In thinking about why Hong Kong people are so concerned about democratic development and election of the chief executive, one should first appreciate that the “one country, two systems” formula that characterizes Hong Kong’s relationship with China was first and foremost intended to allay Hong Kong people’s concerns and engender global confidence. With the 1984 Sino-British Joint Declaration, Hong Kong people were faced with the prospect of being turned over to the People’s Republic of China, to a government that many of their parents and grandparents had fled. In 1984, Deng Xiaoping appreciated this and promised Hong Kong people a “high degree of autonomy,” secured by the Joint Declaration. Hong Kong people were told to put their hearts at ease.
This high degree of autonomy was to be secured by Hong Kong people ruling Hong Kong through democratic institutions, maintenance of a long list of liberal human rights and continuance of the rule of law under the common law system. Promises were also made to continue the application of the International Covenant on Civil and Political Rights and other human rights treaties. This was all stipulated for inclusion in the Basic Law, a mini-constitution for the territory.
In the intervening years, the rule of law has remained solid and human rights are generally protected, but democratic development has been stymied. The people have witnessed the emergence of a ruling class more beholden to Beijing than to Hong Kong. The chief executive answers first to Beijing and is rarely seen to defend Hong Kong’s autonomy.
This circumstance has been accompanied by a perception that Beijing officials have become more involved in Hong Kong affairs as local elites seek to curry favor with Beijing. There is sometimes a sense that a form of crony capitalism has intruded from across the border as rewards are offered or withheld. The result has been a degree of helplessness among ordinary people in the face of policies that are favored by Beijing or anointed corporate elites.
As a result, Hong Kong has increasingly faced governance problems. When unpopular policies are imposed, people are likely to take their cause to the street until the government backs down. While Beijing worries about public order in Hong Kong, its solution — to increase control of the Hong Kong political process — only increases resistance. And thus the debate over election of the chief executive pits a democratic camp that wants progress on democratic reform against an establishment camp that seeks to maintain its political privileges. The outcome of the debate will determine whether these problems will persist.
The focus of the political debate has been on universal suffrage and how it should be realized. What’s the legal basis for this demand for universal suffrage, and what are the main schools of thought on how it should be achieved?
The “one country, two systems” formula has its legal foundation in the 1984 Sino-British Joint Declaration, which articulated the promises for democracy, rule of law and human rights. Regarding democracy, it stipulates that the future legislature be chosen by elections and the chief executive by elections or consultations. It also requires that its promises aimed at maintaining Hong Kong as a separate system be included in the Basic Law. The Basic Law, which was drafted in the late 1980s and came into force upon the handover of Hong Kong in 1997, provided that in the first decade of Chinese rule the chief executive would be chosen by an Election Committee mostly elected by four elite sectors of society. Similar functional constituencies are still used to elect half of the Legislative Council.
Article 45 of the Basic Law says the ultimate aim is election of the chief executive by universal suffrage after nomination by a broadly representative Nominating Committee in accordance with democratic procedures. A similar promise of universal suffrage is made regarding the Legislative Council. China has held back achieving this ultimate aim under a principle of gradual and orderly progress. There has been an increase in the Election Committee’s size from 400 to 1,200 members but little expansion of its constituency, which is currently about 250,000 people. This has effectively blocked most Hong Kong people from the process and ensured that the first three chief executives have come from the pro-Beijing establishment camp.
In 2007, Beijing relented, promising that universal suffrage for electing the chief executive would be allowed in 2017 and that a fully directly elected Legislative Council would be permitted in 2020. In making this commitment, Beijing specified that the Nominating Committee for the chief executive election “may take reference” from the Election Committee in its formation. Beijing officials have further emphasized that candidates nominated for presentation to the voters should be patriots who “love Hong Kong and love China.”
Given Beijing’s record of control, this has engendered a perception that Beijing intends to use the Nominating Committee to screen out candidates from the pan-democratic camp and present voters only with candidates it favors from the establishment camp. This can be done either by mandating vetting candidates for their patriotism or by effectively turning the existing unrepresentative Election Committee into the Nominating Committee and requiring a high threshold of 50 percent for nomination. The latter would ensure the same result, that only pro-Beijing candidates would clear the nomination hurdle.
Such vetting of candidates would effectively violate the commitment to universal suffrage in the Basic Law by denying the voters a genuine choice. Genuine choice is widely recognized as a requirement of universal suffrage in global practice and explicitly specified in the International Covenant on Civil and Political Rights, binding on Hong Kong. To achieve this international standard, the Nominating Committee would need to be truly representative and the threshold for nomination sufficiently low to enable candidates from opposing camps to be nominated. Distrust of Beijing’s intentions has spawned protests in Hong Kong and demands for civil nominations to get around the perceived constraints of a manipulated nomination process.
Especially with the central government’s recent white paper on Hong Kong, do you observe any shift in how the Communist Party leadership in Beijing views Hong Kong and the “one country, two systems” arrangement that governs it?
The white paper mostly repeats the promises contained in the Sino-British Joint Declaration and the Basic Law, but then it appears to downplay the significance of the Joint Declaration as a binding treaty. It does this by emphasizing Chinese authorship of the “12 principles” containing the various promises made in the Joint Declaration. This largely ignores the much more elaborate requirements of Annex I of the Joint Declaration that were also stipulated into the Basic Law. The white paper thereby proclaims that Beijing is free to interpret or amend the Basic Law as it chooses, seemingly unconstrained by international legal commitments and the assurances given to Hong Kong people. It characterizes popular Hong Kong views of genuine autonomy as “lopsided.” The pan-democrats view this as a power grab aiming to block them from the political process.
The white paper also emphasizes Beijing’s concern with foreign interference in Hong Kong. This is paradoxical since foreign governments were originally invited to treat Hong Kong as a separate system based on its promised high degree of autonomy, rule of law and democratic and human rights commitments. Foreign governments that monitor fulfillment of these commitments and offer public comments are generally attacked as interfering in China’s internal affairs.
Much of the political discontent in Hong Kong has gathered around the Occupy Central movement and its demands. How would you characterize those demands, and do you see any prospect for a workable compromise with the Chinese government?
The central plank of Occupy Central is that the election in Hong Kong must comply with international standards. They have run afoul of Beijing on two aspects: their threat to occupy the Central financial district if the electoral model ultimately put forward by Beijing does not conform to international standards, and their proposal for civil nominations that would effectively deprive the Nominating Committee of the substantive choice to nominate the candidates. On the first aspect, Beijing accuses them of disturbing public order and causing great costs to Hong Kong’s economy. The Hong Kong government has promised to enforce the public order laws in Hong Kong. Disturbingly, some Beijing officials have hinted that the People’s Liberation Army might be sent in to deal with this problem, though the official position in Hong Kong and Beijing is that the local police should be able to handle this.
Regarding civil nominations, both the Hong Kong government and Beijing accuse the so-called radicals, including Occupy Central, of putting forth proposals that violate the Basic Law. The Hong Kong Bar Association has agreed that the Basic Law requires nomination by a broadly representative Nominating Committee and that binding civil nominations therefore violate the Basic Law. Compromise should be no problem if Beijing fulfills its commitments under the Basic Law and the ICCPR to provide genuine universal suffrage. If Beijing refuses to allow an electoral model that would give the voters a genuine choice, then compromise seems unlikely. Any change in the electoral model requires the approval of two-thirds of the Legislative Council. This effectively gives the pan-democrats a veto over any electoral change.
So how do you foresee the coming months unfolding in Hong Kong?
The coming few months could be very rough. A lot depends on Beijing. If Beijing is determined to deny genuine universal suffrage, then there will likely be protest in Hong Kong. One anticipates that sometime in the late summer or early fall, the Hong Kong government will issue its report on the consultation exercise it just completed. Presumably, it will then issue a report to Beijing declaring that there is a need to change the method for choosing the chief executive, as well as the Legislative Council. Then the central government will respond, offering any guidelines. If either the Hong Kong government’s report, Beijing’s guidelines or any government legislative proposal that follows aims to vet the electoral choice, directly or indirectly, then it seems unlikely a sufficient number of democrats would support the proposed legislation. Protests are also expected, including the occupation of the financial district.
Whether Hong Kong faces public disturbances largely depends on the central and Hong Kong governments. If reasonable proposals that conform with international standards are put forward, then Hong Kong people would probably have little interest in protests over minor aspects. If the government’s bottom line is to deny universal suffrage, then protests can be expected. The severity of protests may depend on how the government handles protests such as the Occupy Central movement. The Hong Kong government might be advised to avoid public anger by responding moderately. Aggressive action would only increase public support for the protesters.