Posted:  Dec. 18, 2013

 

The admonitions coming from all official sources and opinion leaders are the same.  Hong Kong’s Basic Law, they say repeatedly, must be followed chapter and verse in all local matters that are of concern to the central government.  In response, debate, protest, and resistance that began decades ago when the Basic Law was being drafted are now reviving, yet again, provoked this time by the just-released government Consultation Document on Hong Kong’s next round of political reform (Dec. 6, 12 posts).

These rounds move slowly as they proceed from one election cycle to the next, with the reforms themselves rationed out by Beijing  in bits and pieces.  Despite the delay in a project they thought would be completed by now, activists have never given up on their aim of electing  Hong Kong’s government directly via one-person, one-vote universal suffrage.  The biggest difficulty with these reform sequences, however, is not just that progress toward the ultimate goal is moving at a snail’s pace, but that the Basic Law itself  has become a moving target … with subtractions, additions, and adjustments that were not present or anticipated at the start.

The repeated admonitions glide with a wink and a nod past some key provisions written into the Basic Law as promulgated in 1990.  These have been overridden by policy decisions subsequently made in Beijing not here.  The law was intended to serve as Hong Kong’s constitutional guide for 50 years from 1997 to 2047, when the one-country, two-systems guarantee of local autonomy under Beijing’s authority is due to expire.  A second major problem is the introduction of conditions that do not appear in the Basic Law at all.

Given its over-riding authority and long-term post-2047 aims, no one seriously questions Beijing’s right to change the rules along the way.  But on the other hand, if anyone is wondering why trust in government is on a downward slide here, one major reason is Beijing’s slow back-tracking on some important matters that impinge on its original guarantees.   Hong Kong  reformers are not getting what they thought they had been working for and had been promised by the Basic Law.

Much effort went into publicizing  Beijing’s promise of one-country, two-sytems autonomy for Hong Kong and the slogan signifying how it would work:  “Hong Kong people ruling Hong Kong.”   British negotiators and politicians argued strenuously in defense of the agreements they were signing with Beijing counterparts before Hong Kong was returned to Chinese sovereignty in 1997.  Their way of governing might not be to our liking, said the Western authorities, but Chinese leaders could be counted on to keep their word and the words were all being written down in black and white … in the 1984 Joint Agreement between China and Britain.  Hong Kong’s new Basic Law constitution, written between 1985 and 1990 and promulgated that year, affirmed the promises made in the Joint Agreement.  But that was a generation ago and expectations were built on promises made then that are not being realized in practice now.

DELETE AND SUPERSEDE

          It is true that the Basic Law only promises “eventual” universal suffrage elections for the  Chief Executive and Legislative Council while not saying much about what form those elections might take.   Still, the law did lay down some markers and one in particular, concerning Legislative Council (Legco) election reforms,  has been overridden without even the courtesy of an explanation.  The specific legal debate it might have generated was largely lost in the uproar following Hong Kong’s massive protest against the local government’s 2003 attempt to push through national political security legislation, as mandated by Article 23 of the Basic Law.

That protest culminated in the huge angry march on July 1, 2003, which was soon followed by a new set of electoral regulations from Beijing.  These were designed to block the pro-democracy electoral momentum growing out of the 2003 protest.   Buoyed by their unexpected gains a few months later in the 2003 District Councils election, democracy activists reached for the moon.  They said their aim was to win a 50% majority of seats in the coming 2004 Legco election.  They also began raising demands for full democracy, meaning universal suffrage one-person, one-vote in the 2007 and 2008  Chief Executive and Legco elections, respectively.

Obviously alarmed at the prospect, Beijing over-rode the Basic Law passage that said Legco electoral reforms could proceed “after 2007.”  Specifically, Annex II, point 3 of the Basic Law refers to the method for Legco elections after 2007.   If there is a need to change the methods specified herein (for a half-half split between directly-elected Geographical Constituencies and Functional Constituencies), said the Basic Law, any such changes “must be made with the endorsement of a two-thirds majority of all members of the council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People’s Congress for the record.”   The key phrase is “for the record,” which means only a pro forma notification that such a change has been made.  Annex I on the Chief Executive contained a similar proviso for changes after 2007, but said they had to be reported to Beijing “for approval.”

The British had raised a related point about Legco elections in the 1990s soon after the Basic Law was promulgated and they received a straightforward answer:  electing all Legco members by universal suffrage “is a question to be decided by the Hong Kong SAR (Special Administrative Region) itself and it needs no guarantee by the Chinese Government.”*   Around the same time, senior Beijing official Lu Ping made a similar statement:  “How Hong Kong develops democracy in the future is a matter entirely within the sphere of  Hong Kong’s autonomy, and the central government cannot intervene.” **

The matter was not raised again until a decade later, after the July 2003 march.  In early 2004 Beijing was in the process of  rethinking the rules and orchestrating a public information campaign to teach Hong Kong some lessons about the Basic law and national sovereignty.   Some angry old men arrived from Beijing to read Hong Kong the riot act over its out-of-control ambitions.  These were the “Basic Law guardians,” as its original drafters were called. The polemic was obviously not leaning in the direction of autonomy and  Western-style elections.

Hong Kong  journalist Frank Ching raised the forgotten Beijing promise in one of his South China Morning Post columns and received a sharp rebuke for taking the subject out of a 1994 context that no longer signified.  The 1994 statement, said one of the guardians, “absolutely did not imply that the central government had relinquished … its responsibility and power regarding  Hong Kong’s political system”   (Ta Kung Pao, Ming Pao Daily, SCMP, all Feb. 8, 2004).

Two months later, in early April, Beijing  issued an “interpretation” of  Annex II.3 on Legco election reform that changed what reformers thought were the rules based on the promulgated text of the Basic Law.  Originally, the procedures for reforming Legco and the Chief Executive elections were not the same.  Now they apparently were and then some.  Beijing announced in its interpretation that Beijing must approve all such reforms before they could move along a long winding path that would come to be known as the “five-steps.”   This is the procedure that has just begun here with the publication of the Consultation Document on methods for electing the Chief  Executive in 2017 and Legco in 2016 (Dec. 6, 12 posts).

In late April 2004, Beijing released another statement that dashed hopes for universal suffrage in 2007 and 2008 with an unequivocal “no.”  This decision was issued in the name of the Standing Committee of the National People’s Congress (SCNPC).  Except that these April 2004 statements were introduced as arrangements for the coming  elections in 2007/2008  …  when activists had hoped to achieve their goal of full universal suffrage.

That the April 2004 SCNPC announcements were actually setting a precedent for all elections to come did not become generally known until preparations began for the 2012 election cycle.  Officials began reminding everyone of the “five-step” procedure and everyone needed the reminder.   Specifically, Beijing must first O.K. the results reached by Hong Kong’s preliminary consultations, such as those underway here now, and affirm that there is a need for electoral reform, before those results can be tabled for a vote in Hong Kong’s Legislative Council.

To make sure everyone remembers the point this time around, the 2004 interpretation and decision are reprinted as Annexes II and III of the government’s just-issued Consultation Document for 2016/2017.   The precedent set in 2004 has now become established practice.  The original promise officially affirmed a decade earlier in 1994 … about  Hong Kong people making their own decisions on Legco electoral reforms and reporting to Beijing “for the record” only  …   no longer signifies.

THE LETTER OF THE LAW?

         Meanwhile, officials introducing the current Consultation Document have added two controversial conditions that do not appear anywhere in the Basic law.  One is the requirement that the Chief Executive must be “patriotic” and “love” China.  The other is that the current Election Committee should become the Nominating Committee (Dec. 6 post).

Debates are raging on both points as officials try valiantly to demonstrate that the Basic Law implies patriotism even if it doesn’t actually say so.   Apparently, Basic Law or no,  Beijing’s bottom line in practice will be that anyone who has ever called for an end to one-party dictatorship in China, or at least anyone who still does, cannot qualify as a Chief  Executive candidate.

The case for the Election/Nominating Committee is even more difficult to argue.  Officials are following yet another Beijing decision that said the Nominating Committee can be formed “with reference to” the current Election Committee.  This phrase appeared in the December 2007  SCNPC decision promising Hong Kong a universal suffrage election for the Chief Executive in 2017.   The decision has been reprinted as Annex I of the current Consultation Document.  The big problem here, however, is that the Basic Law says nothing about a Nominating Committee and the phrase “with reference to” can only be defended by referring to mainland legislation.   A  note in the Consultation Document explains hopefully that the phrase “with reference to”  is regarded as binding in mainland law (Dec. 6 post).

The note fails to mention, however, that mainland laws are not supposed to apply here.  According to Hong Kong’s Basic Law, Article 18, “national laws shall not be applied” here except for those listed in the  Basic Law’s  Annex III.  Annex III concerns matters such as the national anthem, flag, and so on.   Of course, the SCNPC “may add to or delete from the list of laws in Annex III.”   But any such changes “shall be confined to those related to defense and foreign affairs as well as other matters outside the limits of the autonomy” of Hong Kong.

It will be something of a stretch to try and claim that the specific design of Hong Kong’s Nominating Committee must be rooted in mainland legal precedent.  But since Beijing officials obviously see a need, the SCNPC will no doubt find a way.

* Ministry of Foreign Affairs, PRC, “Facts about a Few Important Aspects of  Sino-British Talks on 1994/95  Electoral Arrangement in Hong Kong,” China Daily, March 1, 1994.

 ** Renmin ribao, haiwaiban  [People’s Daily, Overseas Edition], Beijing, March 18, 1993.

pepper@cuhk.edu.hk

 

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