Posted: March 26, 2014
Professors at the University of Hong Kong’s law school accepted the challenge proclaimed by China’s leaders at their recent National People’s Congress meeting in Beijing. Leaders said then, in effect, that international standards and Hong Kong’s Basic Law constitution don’t mix and, when in doubt, the Basic Law must take precedence no matter what (Mar. 11 post).
Beijing has been reinforcing this message for months in response to the initiative, also led by a HKU law professor, to launch a civil disobedience campaign if Hong Kong is not allowed to conduct the next election cycle in accordance with “international standards.” He and his friends have been preparing for over a year in anticipation of Beijing’s refusal to approve Hong Kong’s proposals for the 2017 Chief Executive election, and a new generation of young people has been driving a campaign of their own for “civil nomination.” They say international standards demand that ordinary voters be allowed to participate in nominating candidates. Otherwise, pre-selected “safe” candidates will turn Hong Kong’s first ever “universal suffrage” election into a rubber-stamp farce.
It is this combination of demands for international standards and public or civil nomination, plus the threat of civil disobedience that is, to hear Beijing officials tell it, striking at the very foundations of the People’s Republic. HKU’s response was a day-long academic roundtable sponsored by the Centre for Comparative and Public Law on March 20, to discuss “Universal Suffrage and Nomination Procedures: Imperatives from Article 25 of the International Covenant on Civil and Political Rights.” Results of the discussion were announced at a press conference the next day where participants explained how the “guiding principles” they derived from Article 25, could be applied to Hong Kong’s Chief Executive election. The principles aimed to counter Beijing’s assertions by showing how international standards could be followed and conform to Basic Law requirements all at the same time.
The lead panelists were all professors with international law experience who are knowledgeable about Hong Kong government and politics. These “international experts” were mostly non-Chinese. Invited guests kibitzing and interjecting from the sidelines around the inner panelists’ circle were local law professors, mostly all Chinese. Students, press people, and others attended to observe and report with the whole day’s proceedings streamed live for those able to access: http://new.livestream.com/socreclive/20mar2014.
Among the participating guests were HKU professors: Benny Tai, lead promoter of the “Occupy Central” civil disobedience initiative (http://oclp.hk/); Simon Young who heads the Design Democracy project, which invites everyone to create their own preferred electoral reform model (www.designdemocracy.hk ); Michael Davis; and Albert Chen whose intricate interpretations of Hong Kong’s Basic Law inevitably dovetail with those of Beijing.
A DAY OF DELIBERATION
According to the international gold standard ICCPR, Article 25: “Every citizen shall have the right and the opportunity …: (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; …”
Beijing holds that ICCPR Art. 25 conflicts with the Basic Law’s Article 45, which says a “broadly representative nominating committee” should do the nominating when and if Hong Kong holds a universal suffrage selection for its Chief Executive. Beijing has since refined this with an interpretation from on high to mean the four-sector Election Committee, which has endorsed Beijing’s approved candidates since 1997, must now undergo a name-change to become the Nominating Committee for Hong Kong’s first ever universal suffrage Chief Executive election in 2017. Arguments over Article 45 and Beijing’s subsequent decisions are ongoing ( Feb. 14 post).
The roundtable’s final “Guiding Principles on the Compatibility of Election Mechanisms and Methods with International Standards” are posted on the HKU/CCPL website (http://www.law.hku.hk/ccpl/events/Article25ICCPR.html ).
1. The legitimacy of a democratic government in Hong Kong and elsewhere is derived from the will of the people and this requires a process that allows the free expression of the genuine will of the people.
2. Any Nominating Committee which may be constituted under Article 45 of the Hong Kong Basic Law should reflect the will of the people and the equal representation of the people of Hong Kong. Corporate voting should be avoided because it violates the principle of universal and equal suffrage.
3. The process for electing members of the Nomination Committee should be inclusive, participatory and transparent.
4. Nomination procedures used by the Nomination Committee should be reasonable, fair and transparent. These should include civil nominations through the Nomination Committee or processes of public consultation.
5. In compliance with international human rights law, there ought to be no unreasonable restrictions on people’s right to stand for election, be nominated or participate in the selection process, particularly bearing in mind the need to comply with principles of equality, non-discrimination, inclusion and participation. These are essential to the meaningful exercise of the rights to participate in the political process.
The statement of principles concludes on a hopeful note saying that: “Adoption of the aforementioned principles would ensure that the people of Hong Kong would be able to enjoy true and genuine choice in the elections.”
HARMONIZING INTERNAIONAL STANDARDS
Beijing has been railing for months (years, actually) about the intrusion of foreign forces here and their interference in Hong Kong’s internal affairs. For sure, the roundtable was a clear instance of “foreign interference” in the effort to find common ground between international standards and Hong Kong’s Beijing-drafted Basic Law constitution. But if the March 20th roundtable exercise is any indication, Beijing can rest easy. The interactions throughout the day seemed to succeed more in harmonizing international standards than internationalizing the Basic Law.
For example, when one of the panelists suggested a strong upfront statement on civil nomination, a guest participant immediately shot down the idea as being too provocative. The result is the watered down item # 4: nomination procedures “should include civil nominations through the Nomination Committee or processes of public consultation.”
Another panelist suggested a strong categorical statement against corporate voting. This is the means whereby the tycoons and business corporations that dominate especially in Sector One (among the four sectors in the current Election Committee that will become the Nomination Committee) are able to dominate that sector without any indication even as to who might be controlling the votes. But that idea was immediately countered by a local pro-democracy law professor who explained that while some in Sector One might agree to give up their privilege, he knew others not willing who would automatically balk at any such proposal making it impossible to negotiate a solution with them. The end result was the watered down sentence in item #2, to the effect that, “Corporate voting should be avoided because it violates the principle of universal and equal suffrage.”
It should be avoided but probably won’t be … which also anticipates that there will be no serious attempt to redesign the four-sector Election/Nominating Committee as a whole. This is stacked with so many conservatives that pro-democracy politicians have had to struggle since 1997 for endorsements from one-eighth of the 1,200 members, the threshold needed to qualify even as a token candidate under the existing system.
In a further blow to democracy activists’ hopes for support from international standards, two panelists elaborated their conclusions in press interviews. Constitutional law expert Yash Ghai, who chaired the roundtable, said specifically that international standards do not mandate civil nomination. This was the point … on the requirement for public nomination … that had been deleted from the guiding principles as they were being debated and drafted on March 20. Professor Ghai, now retired, was an outspoken member of the HKU law faculty in the 1990s. The South China Morning Post featured his call for activists to be pragmatic and realistic in balancing their demands with those of Beijing (March 22).
Music to Beijing ears. That’s exactly the counsel that democracy activists have learned to fear since Beijing holds most of the cards and can force compromise on its terms. Beijing is also headed in a different “people’s congress” institutional direction toward the 2047 end game, a prospect that moderates invariably fail to consider … as did another roundtable panelist who also counseled compromise. Professor Carole Peterson, a former member of the HKU law faculty now at the University of Hawaii, said public nomination was not essential for democratic development. She said only that the Nominating Committee must be truly representative and should not impose unreasonable thresholds for the nomination of candidates (SCMP, March 24).
The most persistently “radical” voices among the HKU roundtable participants were those of Law Yuk-kai who heads the Hong Kong Human Rights Monitor and HKU law professor Michael Davis. Davis subsequently published an open letter with his own suggestions for public nomination … by the name of public recommendation.
It could be done, he argues, via a Nominating Committee that would itself be elected entirely by popular vote. In his design, the committee would retain the existing four sectors (business and finance; professionals; grassroots; political authorities). Each would have an equal number of seats, as the Election Committee does now. But each sector would be elected by a roughly equal number of Hong Kong’s registered voters … all of whom would be able to register for one or another of the committee’s various constituencies.
Committee members would then endorse any qualified (by age, nationality, residence) aspiring candidate and 12.5% of all committee members would be sufficient to secure nomination. Additionally, the committee would be expected to act on good faith and endorse any qualified person who could collect 10,000 nominating signatures from registered voters (SCMP, March 25).
Alas, there is little hope for a popularly-elected Nominating Committee. That was one of the earliest proposals from pan-democrats a year ago and they themselves quickly abandoned it as an overly ambitious non-starter. But it points toward the only real solution, namely, some creative way of addressing the aversion to another rubber-stamp Chief Executive selection project … especially the coming one that is to be conducted under the guise of universal suffrage. If 2017 is to mean anything at all, the public should be allowed to have its say. And especially the younger generation needs to know, for future reference, that its year-long campaigning contributed to a solution.
Building public nomination into the Nominating Committee or combining the two are evidently the only possibilities since Beijing seems irrevocably attached to its Nominating Committee format. State sovereignty and the coherence of unitary one-party rule depend on it, we are told. The people alone must not be seen to be making autonomous decisions about their governing institutions because the people are not sovereign and neither are any institutions they might elect.
So it was probably not by coincidence that Anson Chan’s “HongKong2020” group announced its reform proposals while HKU’s roundtable discussion was underway, on March 20. She, too, failed to endorse public nomination … but with a difference. Ditto another member of her group, Professor Johannes Chan, one more voice from HKU’s law faculty who contributed another variation on the theme of creative combinations … (to be continued: the two Chans’ solutions).