Posted: Nov. 27, 2013
Game over? Not necessarily, say some … but maybe, if last week’s message from Beijing is taken too literally. The message was delivered in person by Li Fei [ 李飛 ] who heads the Basic Law Committee, which is part of the National People’s Congress establishment. This committee consults, advises, elaborates, and speaks authoritatively on matters related to Hong Kong’s Basic Law mini-constitution. The highlights of his three-day visit, November 21-23, were a public speech and press conference explaining official views on the coming round of electoral reforms.
Beijing has promised that Hong Kong’s long-standing demand for one-person, one-vote universal suffrage can, for the first time, be met in the next, 2017, election for Chief Executive. Democracy campaigners fear the promise may ultimately mean little more than a rubber-stamp exercise, to confirm a pre-selected candidate, following electoral practices on the mainland. Debate over reform proposals aimed at achieving the real thing has been underway for months (March 14, 25, May 14, Aug. 5 posts). Addressing the current state of the debate here, Li Fei’s most relevant points,were two-fold:
(1) Whatever reform model is adopted, it must produce a Chief Executive who is “patriotic,” that is, one who “loves China and Hong Kong.” In mainland usage, these terms mean acceptance of the Chinese Communist Party’s unitary form of dictatorship, which most Hong Kong pan-democrats do not. They acknowledge that it is the existing established government but not that it should be. In contrast, democracy campaigners are demanding Western-style election standards, which mean the universal and equal right of all citizens to vote, nominate, and be elected … without prior political vetting.
(2) Li also said that the mechanism for nominating such candidates must be a committee. He strongly implied that this committee should be designed in the same way as the current four-sector Election Committee, which has been anointing Beijing’s approved Chief Executive candidates since 1997. In contrast, pan-democrats have focused on the equal right of all registered voters to nominate, which translates into signature campaigns and/or some form of Western-style popular-vote primaries, referred to here as civil or public nomination [ 公民体名 ]. The idea is to give everyone a chance to participate in nominating candidates.
LAYING DOWN THE LAW?
During his stay, Li met both in public and private with a variety of government officials, the Bar Association, and the Law Society. His visit followed that of another Basic Law authority, Qiao Xiaoyang, who invited pro-establishment (loyalist and conservative) Legislative Councilors to a closed-door meeting held across the border in Shenzhen last March (March 25, April 2 posts). Afterward pan-democrats, who were not invited, challenged Beijing officials to come here and speak directly to everyone. Li Fei’s visit, in effect, acknowledged that challenge even if he did avoid direct encounters with democracy-camp politicians and activists.
The pro-Beijing press hailed his November 22nd luncheon talk as a “major address” that provided the “writing on the wall.” Anyone who did not “love the country and Hong Kong” must be regarded as an opponent of the central communist-party-led government and could not be elected Chief Executive. The charge is serious. Such a person would “threaten State sovereignty and security” (Nov. 23: China Daily, Wen Wei Po, Ta Kung Pao).* Across the border, dissidents are imprisoned on those grounds.
Pan-democrats nevertheless point out, hopefully, that the visitor was careful not to present his remarks as ultimatums from on high. Rather he was here to explain relevant points of legal interpretation from Beijing’s perspective. But the interface between the two, mainland and Hong Kong, systems was never clearer in its incompatibility as Li tried to talk his way out of the legal straightjacket Beijing has created for itself by superimposing mainland qualifications on the promise of universal suffrage elections. No wonder eight months passed between the two (Qiao Xiaoyang and Li Fei) visits. The Basic Law Committee’s team of researchers and theoreticians needed that much time to draft the thicket of legal complexities Li Fei needed to argue his case.
He did his best to win sympathy for Beijing’s dilemma as he explained how Beijing, too, is hamstrung by the Basic Law. This is because it contains no political prerequisites for the position of Chief Executive. According to Article 44, anyone who is a Chinese citizen, Hong Kong resident and 40 years of age or more is qualified. Therefore, Beijing would be violating its own law if any such person were to be banned beforehand from running for the post. It would create a constitutional crisis.
But if such a person was actually elected, without qualifying as a “patriot,” it would also create a constitutional crisis because Beijing could not possibly allow such a person to serve in so important a post. The consequences were too terrible to contemplate. Article 43 of the Basic Law says that Hong Kong’s Chief Executive must be accountable to the Central People’s Government. How could such a person be accountable to a government the legitimacy of which he/she did not recognize? Li also mentioned Article 48 that says the Chief Executive must implement the directives issued by the Central People’s Government. How could such a person be relied upon to implement its directives? Hong Kong’s prosperity and stability would be jeopardized to say nothing of the threat to national security and the Central Government’s sovereignty. Therefore, Hong Kong must help Beijing avoid such a dilemma with practical solutions when drafting the electoral reform proposals for 2017.
His solution is that the very same committee responsible for selecting HK’s Chief Executives since 1997, should do the nominating in 2017. No official or official document has ever said in so many words that this exact same committee must be recycled in this way, but he made the strongest case possible under the circumstances. The firmest legal ground he had to stand on was a single sentence in Article 45 of the Basic Law, which states that Hong Kong’s Chief Executive can eventually be elected by universal suffrage: “The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.”
Li went on at some length to explain how the current Election Committee had been created and how, back in the 1980s when the Basic Law was being drafted, there was the idea of transforming the Election Committee into a Nominating Committee when the time came. But even so, in actual fact, the Basic Law (Annex I) only specifies that the committee is to be used for the first two Chief Executive terms. Since then, it has been extended from one cycle to the next by Hong Kong government proposal and Legislative Council approval. Otherwise, the Election Committee’s Basic Law mandate expired in 2007, and whatever might have been discussed in the 1980s, the Basic Law as promulgated says nothing about transformation into a Nominating Committee.
Nor could the Election Committee be regarded by any stretch of the imagination as being representative and democratic, principles that the Basic Law says are supposed to guide the Chief Executive nominating process. Not unless the special-interest Legislative Council Functional Constituencies and assigned political appointees that currently make up the committee can be so regarded … which points to a whole separate category of reform controversies. In fact, the committee was designed in the late 1980s and has been maintained ever since as a purpose-built fail-safe assembly of loyalists and conservatives.
In the late 1980s, Beijing was fearful that if left to themselves, Hong Kongers would never vote for “safe” loyalist candidates. Hence the Election Committee design was cherry-picked from among the special business, professional, and social interests that Beijing felt relatively certain about at that time. The committee’s four-sector design remains unchanged but numbers have been topped up by a few hundred (from 800 to 1,200), primarily with more Beijing loyalists and honorary appointees to Beijing’s United Front bodies here. So that if Article 45’s requirement for a “broadly representative nominating committee” is to be met, the 1980s design needs to be reconsidered as well.
VINDICATION FOR JASPER TSANG
Vindication in a backhanded sort of way, that is … because the timing of Li Fei’s high-profile appearance here, to publicize the parameters Beijing means to draw around Hong Kong’s political reform debate, was probably not accidental. More likely the timing was inspired by the stir pro-Beijing loyalist Jasper Tsang Yok-sing [ 曾鈺成 ] created a few weeks ago with his unscripted comments mocking Beijing’s “inner demon” fear of pan-democrats. He went so far as to say that even if they were elected to the top job, they wouldn’t be able to do much harm since the central government supervises from above and the main pro-Beijing political party is keeping watch below (Oct.24 post).
Tsang himself founded that party, the Democratic Alliance for the Betterment and Progress of Hong Kong (DAB), which is now the largest political party here and regarded as the electoral wing of Hong Kong’s unacknowledged “underground” communist party branch. Probably, Beijing is worried that local loyalists are losing their ideological resolve and Li Fei’s message about patriotic prerequisites was intended as a warning not to let down their guard.
Yet given the weakness of the arguments Li was able to muster in presenting his case, they did more to vindicate Tsang’s mockery than prove him a lapsed loyalist. Chief Executives must pledge to uphold the Basic Law, which establishes the Central Government as the sovereign authority here. If Beijing insists on further questioning the integrity of candidates and will only approve those with long-standing loyalist pedigrees, then Hong Kong is on course for ever more political protest of the sort that has drained the authority of all three hand-picked post-1997 Chief Executives.
As for the old Election Committee still carrying on as Beijing’s preferred option, pan-democrats can accept their own share of blame. When the mainstream Alliance for True Democracy announced its general principles last spring, the focus was on popular participation in the nominating process and the popular movement for civic nomination took off. But when the Alliance’s first set of actual proposals appeared during the summer, Proposal Number One featured the existing Election Committee transformed into the Nominating Committee … without any demand for a re-design.
Knowing that all the relevant documents Beijing would cite anticipated some sort of a committee to nominate but did not specify its design or composition, the Alliance nevertheless took the easy way out and proposed using the old Election Committee … without bothering to consider that it could be re-vamped and democratized. So why wouldn’t Beijing assume that the old committee remains an acceptable alternative? There are others, and the way still lies open before them … if only pan-democrats care to take it.
* Li Fei gave two speeches on Nov. 22, one at the luncheon for a hundred invited guests and another to senior government officials. Both texts were printed in full: Wen Wei Po, Ta Kung Pao, Nov. 23; and posted on Beijing’s Hong Kong Liaison Office website, in Chinese only: http://www.locpg.hk/.