Posted:  Dec. 6, 2013

 

As everyone knows by now,  Hong Kong has been promised its first one-person, one-vote universal suffrage election in 2017, when the current Chief Executive’s term expires.   Local democrats … fearful of more run-arounds after 30 years of official procrastination … got off to an early start this year to begin campaigning on their own.  Because Chief Executive Leung Chun-ying  has said next to nothing about the whole project, democracy campaigners feared his administration would wait until the last minute, thereby cutting short the time they need to educate the public and build further support for their long-sought goal.  They also know that without widespread popular pressure Hong Kong will remain mired forever in the same muddle of partially-elected unworkable institutions that emerged from the pre-1997  Sino-British negotiations.

So far so good.  The early start paid off.   No doubt Beijing and Leung Chun-ying saw public sentiment already moving beyond their reach, which was why  Li Fei came to town last month to lay down some markers (Nov. 27 post),  and also why the Hong Kong government has formally kicked off  the reform campaign months ahead of the original 2014 time table.  The official consultation document was made available to the public precisely at 3 p.m. on December 4.  It marks the start of the customary public consultation  process that always precedes the introduction of important polices and reforms.

Government drafters have also undergone some serious sensitivity training since 2003, when sarcastic officials dismissed public misgivings about the Tung Chee-hwa administration’s attempt to push through its national political security legislation.  The consultation document, entitled Let’s Talk and Achieve Universal Suffrage  [有商有量, 實現普選 ], smoothly sidesteps the two most controversial conditions Li Fei sought to establish.  These are the political prerequisite of “patriotism” that could be used to disqualify pro-democracy candidates; and denial of democratic demands for general public participation in the nomination of candidates.*

In fact, the document mentions neither patriotism nor public nomination.  It doesn’t need to.   Li’s message evidently was meant to be taken literally and the Hong Kong government responded as it thinks it must, by writing his message into the details albeit without identifying it as such.  The intricate reasoning nevertheless leads to only one conclusion:  dictatorship in the guise of  legalistic interpretation.

A  CYNIC’S  BENCHMARK

The language  may seem warm and welcoming  but the consultation procedures hark back to British days and the public has by now grown cynical, seeing them as “fake”… meaning official attempts to project the appearance of public approval while official plans proceed regardless.  Applied to this case, however, the cynic’s view can provide a  useful benchmark for judging afterward:  just how much leeway was actually allowed, and how much was achieved by all the campaigning that is sure to continue between now and a year or two from now when the reform package has been finalized.**

Heading into the formal campaign, it’s clear that Beijing aims to establish the parameters and guard the gate.   There must be a political prerequisite; the person must be a patriot.  By patriot Beijing means one of its own loyalists preferably, but not necessarily, from the “traditional” patriotic community that professes unqualified devotion to the Central Government and Chinese Communist Party rule.  But whether a traditional or latter-day loyalist, such a person, for example, would never question the need to pass national security legislation or introduce a mandatory national political studies curriculum for all students.  Both were shelved due to public protest, in 2003 and 2012, but both remain on the government’s to-do list and loyalists periodically call for their reintroduction.

Heading into the formal campaign, it is also clear that Beijing aims to use the old four-sector Election Committee composed overwhelmingly of conservatives and loyalists who have reliably endorsed the approved candidates for Chief Executive since 1997.  The aim now is to turn this same committee with its four-sector design into a Nominating Committee that will choose the candidates.  The one-person, one-vote universal suffrage promise could then proceed much like local sub-county elections on the mainland today:  everyone can vote, but only for communist party-approved candidates.

It follows that democracy campaigners’ ultimate success can be judged by how far the final result deviates from Beijing’s apparent bottom line in the direction of their demands.  If they do not succeed, Beijing can declare another obstacle removed in its on-going effort to set precedents and lay building blocks for Hong Kong’s transition from one-country, two-systems …  to one-country, one-system mainland rule.   Li Fei’s visit alone suggests how far that effort has already evolved since Hong Kongers still tend to think of  local electoral reform as being something they could decide for themselves under the original “high degree of autonomy” and “Hong Kong people ruling Hong Kong”  promises  made when Hong Kong returned to Chinese rule in 1997.   That now seems a very long time ago.

THE CONSULTATION DOCUMENT’S OPTIONS

The document lays down no ultimatums or parameters but only lays out the case for them, while seeming to offer a range of possibilities and space for democratic maneuvering.  Hence when asked why the document contains no mention of  patriotic pre-conditions, Chief Secretary Carrie Lam said it was understood, assumed … “self-evident” …  that the Chief Executive must be patriotic.  But she also said being patriotic or loving the country did not necessarily mean a person had to love the Chinese Communist Party.   Beijing’s big problem with this prerequisite is that Hong Kong’s  Basic Law mini-constitution also does not mention it (Nov. 27 post).  Lam ranks second to the Chief Executive in the Hong Kong government and heads the team of three officials leading the consultation task force.  The other two are Rimsky Yuen who is Secretary for Justice and Raymond Tam who heads the Constitutional and Mainland Affairs Bureau.

The Basic law also contains no mention of the Chief Executive Election Committee being re-cycled as the Nominating Committee for use in a universal suffrage election.  The consultation document nevertheless does refer to a “binding” mandate for transformation.  Asked to explain this contradiction, Secretary Yuen was honest enough to admit that the mandate had not been established in law …  or at least not in any Hong Kong law.

But the biggest question marks and controversies will revolve around this 1,200-member committee.  Its composition is shown in Annex IV of the document.  As its authority on the legally “binding” nature of the Election Committee’s transformation, the consultation document cites two references both from Beijing sources.  One was a 2007 National People’s Congress Standing Committee decision.  The other was Qiao Xiaoyang who spoke to the issue in March this year (March 25,  April 2 posts).   Both derive from the Basic Law’s Article 45, which states that:  “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.”

The follow-up comments from Beijing and Qiao Xiaoyang say only that the broadly representative nominating committee “may be formed with reference to”  the  Basic Law provisions regarding the composition of the old  Election Committee.   The follow-up legal authority on the so-called “binding” nature of this reference must have taken the research team months to piece together.  In a footnote on page 22, the consultation document strains to explain, with respect to Beijing’s 2007 statement:  “In 230 pieces of  legislation then in force in the PRC (People’s Republic of China), there were a total of 85 usages of  ‘with reference to’  in 56 pieces of legislation.  Amongst the 85 usages of  ‘with reference to’,  the most common meaning,  in colloquial language, is that the law has made specific provisions for a certain situation, but has not made specific provisions for another similar situation.  In such cases, the law would usually provide for reference to be made as appropriate.  Therefore, the term ‘with reference to’ is binding while at the same time allowing appropriate adjustment to be made in light of the actual situation.”

What all this means, we are told,  is that “the purpose is to maintain … the basic components of the four sectors” that make up the old Election Committee “while at the same time enabling the actual formation and size of the NC (Nominating Committee) to be further discussed, with appropriate room for adjustment.”   The consultation document contains no caveat about the strange attempt to impose mainland law as binding  in Hong Kong where mainland law does not, or so we have been told, apply.

The consultation document concludes with a series of questions the public is invited to consider, concerning:  (1) the size and composition of the Nominating Committee;   (2) the electoral base of the committee; (3) methods for forming the committee; (4) procedures for the Nominating Committee to nominate candidates; (5) voting arrangements for election of the Chief Executive by universal suffrage; and (6) what to do if  Beijing rejects the person who receives the most votes from the  Hong Kong  electorate.

Carrie Lam says that all ideas are welcome but cautions that to merit consideration they must remain within the confines prescribed by the Basic Law.   Pro-Beijing sources are also filled with admonitions to “adhere to the  Basic Law.”    What the admonitions must mean is:  adhere to what officials say is the law’s intent, not what is actually written therein.   Still, with so much legalistic parsing of words, pro-democracy lawyers and politicans should be able to score a few good debating points,  if nothing else.   The way does still lie open before them, but campaigners will find it more like an obstacle course than a road designed for realistic transit.

 

* www.2017.gov.hk .  The full title:  Let’s talk and achieve universal suffrage:  methods for selecting the Chief Executive in 2017 and for forming the Legislative Council in 2016:  Consultation Document.   Everyone is invited to participate by sending their opinions to the addresses provided in the document.  Whether everyone’s opinions receive equal attention is another matter.

** The timetable is roughly as follows and the procedure is as complex as the legal details.  Opinions will be collected for five months beginning now and ending in May next year.  The government anticipates it will take two months to collate the results and compile a report.  This must be sent to Beijing for approval to proceed.  A second public consultation is scheduled for later in 2014, on the package of reform proposals the government will draft based on its original report and Beijing’s approval.  The government’s final package (to include reforms for the 2016 Legislative Council election as well) must then be approved by a two-thirds majority in the council.  All of this should be completed sometime in 2015 …  just in time to prepare for the 2016 Legco election.

pepper@cuhk.edu.hk

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