Seventeen years ago China resumed sovereignty over Hong Kong. China promised a high degree of autonomy and separate economic, legal and social systems for Hong Kong in an international treaty, the 1984 Sino-British Joint Declaration. These promises were concretised in Hong Kong’s post-handover constitution, the Basic Law.

Hong Kong enjoys more governance powers than many other local regions in the world. However, a crucial criterion in assessing the degree of autonomy Hong Kong has is the extent to which its people can elect their own government. The past year has seen heated discussions over how the Chief Executive of Hong Kong (CE) should be returned in 2017. In the past, the CE was selected by an Election Committee that was dominated by members who were pro- Beijing and business elites, and which electoral base had never exceeded 7% of the electorate at large. Article 45 of the Basic Law provides that the CE shall be returned by election or through consultations and appointed by Beijing, the “ultimate aim” being selection of the CE “by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures” (emphasis added). So the ideal system mandated by the Basic Law consists of three stages: nomination by a committee, election by the general public on candidates returned by the committee, and appointment by Beijing.

In 2007, the National People’s Congress Standing Committee (“NPCSC”) gave the green light for universal suffrage of the CE in 2017 (see the NPCSC’s 2007 Decision). This sparked off debates over what universal suffrage should look like in that year.

Constitutionally, changes to the current electoral system can only take place after the NPCSC determines that there is a need to introduce changes, and the proposed change is endorsed by two-thirds of legislative councillors in Hong Kong, the CE and the NPCSC (see the NPCSC’s 2004 Interpretation on Article 7 of Annex I). If these parties cannot agree on an electoral model, the status quo (i.e. CE elected by an unrepresentative Election Committee) will continue and universal suffrage will be deferred for another term. Nevertheless, the prospect of compromise is dim. Beijing and pan-democrats in Hong Kong (the latter controlling around one-third of the legislature) disagree on all pertinent issues. Under Article 158 of the Basic Law, the final power of interpreting such Law is vested with the NPCSC. But until the NPCSC issues a binding interpretation on Article 45 of the Basic Law – and this has not happened yet – courts and government institutions in Hong Kong are free to interpret the provision using the common law approach, subject to a duty to refer by the final court. So far there is still room for pan-democrats to dispute, within the framework of the Basic Law, Beijing’s understanding of Article 45 because the NPCSC has not yet formally issued an interpretation on this article.

The strife between Beijing and pan-democrats highlights some of the contrasting features between universal suffrage with Chinese characteristics and universal suffrage as popularly understood. Beijing emphasizes that a careful screening process by the Nomination Committee is needed to ensure that the CE is someone that “loves the country”. To the pan-democrats, this is just an excuse to bar them from running. Excluding them at the nomination phase or final appointment stage may not make much difference to the result, but sifting them out at the former may save Beijing the embarrassment of refusing to appoint someone that has won popular support. For Beijing, the composition of the Nomination Committee should be modelled upon that of the existing Election Committee. The argument goes that since the Basic Law described the latter as “broadly representative” and the same term was used in Article 45 to describe the former, the two committees should be composed according to the same principles. For pan-democrats, the Election Committee is not “broadly representative”, but even if it is, the Basic Law does not preclude the Nomination Committee from being more representative than the Election Committee. For Beijing, the threshold for nomination must be high; to be successfully nominated, a person must be able to obtain support from at least half of the members of the Nomination Committee (what Beijing terms “organisational nomination”, a concept that is not found in the Basic Law). For pan-democrats, such high threshold would unreasonably preclude people opposed to the mainstream political views in the Committee from entering the race.

For Beijing, it seems, the requirement of universal suffrage only applies to the stage when the general public votes on the list of candidates returned by the Nomination Committee and is irrelevant to the nomination stage. Indeed Beijing believes that although the Basic Law entrenches the International Covenant on Civil and Political Rights (ICCPR) through Article 39, the requirements on universal and equal suffrage under Article 25 ICCPR do not apply to Hong Kong. This is because when the U.K. extended the ICCPR to Hong Kong, it made a reservation which stated that Article 25 of the Covenant did not require the latter to establish an elected legislature and executive. However, according to the United Nations Human Rights Committee and the Hong Kong court in Lee Miu Ling v Attorney General (No 2) (1995) 5 HKPLR 181, once elections are introduced in Hong Kong, the election procedures must comply with Article 25 ICCPR. In March this year, the Centre for Comparative and Public Law of the University of Hong Kong organised a roundtable involving international experts to discuss what Article 25 ICCPR requires of nomination procedures in democratic elections. The experts laid down a set of “Guiding Principles on the Compatibility of Election Mechanisms and Methods with International Standards”, which stipulate, inter alia, that any Nomination Committee should reflect the will and equal representation of the people, the process for electing members of the Nomination Committee should be inclusive, participatory and transparent, the nomination procedures should include processes of public consultation or civil nominations through the Nomination Committee (to be explained below), and there should not be unreasonable restrictions on people’s right to stand for election and be nominated, bearing in mind the need to comply with the principles of equality and non-discrimination.

In the past few months, an issue has taken centre stage: whether Hong Kong citizens should be allowed to directly nominate candidates, effectively by-passing the Nomination Committee. According to Beijing, any such system of “civil nomination” is unconstitutional – the Nomination Committee’s power under Article 45 of the Basic Law is substantive and not merely symbolic. In contrast, a faction within the pan-democrats believes that the term “democratic procedures” in Article 45 is broad enough to encompass a procedure whereby the Nomination Committee would automatically endorse as candidates those who are able to obtain the support of a certain percentage of the general electorate, and that civil nomination is needed as a safeguard against the Chinese government manipulating the Nomination Committee.

In my view, purely as a matter of constitutional interpretation, Article 45 of the Basic Law can be interpreted to support either side in the debate on civil nomination, and it is possible to reach this conclusion through common law or Chinese principles of interpretation. If we use the common law purposive approach to interpret Article 45, it is possible to argue that this provision, when read in light of other provisions in the Basic Law such as Article 39 entrenching the ICCPR, and the repeated messages of separate systems and autonomy in the Basic Law and the Sino-British Joint Declaration, aims to guarantee the right of Hong Kong people to elect their own leader. “Democratic procedures” can therefore be read liberally to embrace a procedure that requires the Nomination Committee to endorse recommendations from the public. Yet, it is also possible to argue, as the Bar Association has done, that under such a procedure the Nomination Committee would not be acting on its own. This would violate Article 45, which envisages the Nomination Committee to be the only organ for making nominations. If we adopt Chinese principles of interpretation, the analysis is even more straightforward. From the Chinese legal system’s point of view, there is no impediment to giving a legal provision a meaning that is not apparent from the text. Socialist interpretations of law can clarify or add things to the law. An example of this is the NPCSC’s 2004 interpretation of Article 7 of Annex I of the Basic Law, which effectively rewrote the phrase “if there is a need to amend [the method for electing the CE” into “if the NPCSC determines that there is a need to amend [such method]”.

My point is simply that as a matter of legal interpretation, the debate on civil nomination can go either way. Although the contest over civil nomination has been couched in legal terms, the obstacle to introducing a system with civil nomination is not legal, but political. The key is whether Beijing has the political will to grant such a system. The political nature of the battle is obvious when one considers the NPCSC’s hovering, nuclear power of issuing an interpretation of Article 45 of the Basic Law. There is only so much room for law in constitutional law, when the final power of interpreting the constitution is vested with a Socialist dictatorship.

Hong Kong people are aware of this. The high-profile civil movement “Occupy Central with Love and Peace” sets out to level the bargaining power between Beijing and the people of Hong Kong. This venture, started by my colleague, Associate Professor of Law, Benny Tai, threatens to launch a large-scale civil disobedience movement (illegally occupying major roads in the central district of Hong Kong, which will presumably create a de-stabling factor for Hong Kong’s economy and attract international attention) in the event Beijing does not grant genuine universal suffrage to Hong Kong. Recently the movement organised an unofficial referendum in which nearly 800,000 Hong Kong people voted (amidst unprecedented hacking of the online polling system), with 91% supporting an electoral model with civil nomination, and 88% of the belief that the legislature should veto a model that fails to meet international standards, depriving electors of a real choice of candidates. On 1 July, the day commemorating the resumption of sovereignty, 500,000 people engaged in a lawful demonstration to express their wish for genuine universal suffrage. That night, student organisations launched a small-scale “test” civil disobedience movement and sat in peacefully on a central road. The police arrested more than 500 protestors, an arrest of the largest scale in unauthorised demonstrations since the handover.

The number of participants in these events is partly boosted by the Chinese government issuing a White Paper on its policy towards Hong Kong in June. The most controversial parts of the Paper are its emphasis that the Chinese government retains control over all aspects of Hong Kong, including those that have been designated as falling within Hong Kong’s autonomy, and that all administrators in Hong Kong, including judges, must be patriotic. The Paper is seen by many locals as a defeat of promises of autonomy and a trample on cherished values of judicial independence, and triggered, on top of all else that was happening in Hong Kong, a silent march of 1,800 lawyers on 27 June.

The next date to look out for is when the NPCSC makes a determination on whether there is a need to introduce changes to the election system. The Hong Kong government’s 5-month consultation on electoral reform ended in May and it is expected to request the NPCSC for a determination later this summer. The democrats warned that if the NPCSC, in deciding whether there is a need to reform the election system, incidentally imposes unfair constraints on the nomination method, they would commence acts of civil disobedience immediately. The confrontation will likely continue, if subsequently the Hong Kong government submits to the legislature a proposal for electoral reform that is unacceptable to the pan-democrats. Whether civil responses in Hong Kong are able to restage David and Goliath depends on whether China still perceives the city to be of utility, the position of business tycoons in Hong Kong, and the politics within the Chinese Communist Party. The destination of genuine universal suffrage can be as near as 2017 or as far as never. All that is clear now is that the road ahead in Hong Kong’s journey to democracy is far from clear.

 

Cora Chan is an Assistant Professor of the Faculty of Law, University of Hong Kong and the UKCLA Hong Kong Correspondent. 

(Suggested citation: C. Chan, ‘When, if ever, will Hong Kong see democracy?’  U.K. Const. L. Blog (7th July 2014) (available at https://ukconstitutionallaw.org/)).