RAW: On Broken Democracy Promises in Hong Kong

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RAW- A new category of unedited commentary. Longer, detailed, quality, civil. Try us.

Our first from Devon Rowcliffe: Has China ever actually offered a complete democracy to Hong Kong? Are China’s new demands truly in violation of its legal commitments or other promises? Rowcliffe offers his take on the meaning of broken democracy promises.

DEVON ROWCLIFFE
Amid democracy protests in Hong Kong, accusations of deception filled the tropical autumn air with as much fervor as the swarms of colourful umbrellas. Some Hong Kong residents insist that the larger powers involved in this affair – namely the Chinese government – have broken earlier promises to fully democratize Hong Kong, and that recent demands from China violate existing commitments.

But are these claims accurate? Has China ever actually offered a complete democracy to Hong Kong? And are China’s new demands truly in violation of its legal commitments or other promises?

China’s new demands

Critics of Beijing point to two recent demands made by China as betrayals of previous commitments: that securing a nomination to become a Hong Kong Chief Executive candidate should become more difficult, and that future Chief Executive candidates must “love the country” (China).

First, China intends to make the process of securing a nomination for the Hong Kong 2017 Chief Executive election significantly more difficult than is has been in the past. China envisions a limit of three candidates; and instead of only having to secure the support of 100 members of the Election Committee, prospective candidates for 2017 would have to receive the backing of more than 600 of the new nominating committee’s members – an increase of more than 500% compared to the 2012 nomination threshold.

The second change sought by China that has caused uproar in Hong Kong is the stipulation that Chief Executive candidates for 2017 must “love the country” (meaning China). This is essentially a code phrase that means that the Chief Executive must not be highly confrontational with the Chinese government. This “love China” requirement is likely aimed at preventing the most ardent of pan-democrats from becoming Hong Kong’s Chief Executive and frequently locking horns with Beijing.

Sino-British Joint Declaration

Let’s turn to the existing promises that have been made regarding the intended democratization of Hong Kong. The 1984 Sino-British Joint Declaration set the terms for the 1997 handover of Hong Kong back to China. Despite British involvement in its creation, notably absent from this document are terms such as “democracy”, “democratic” and “universal suffrage”. Regarding how Hong Kong’s Chief Executive should be chosen, the phrase that appears in the Joint Declaration is “elections or consultations to be held locally”– a vague commitment that technically doesn’t even require limited-participation elections, let alone a fully-participative democracy.

Another phrase in the Joint Declaration that is often referred to by those who claim that China has promised democracy to Hong Kong is “a high degree of autonomy.” Section 3.(2) states that Hong Kong “…will enjoy a high degree of autonomy, except in foreign and defence affairs…” However, “autonomous” and “democratic” are clearly not synonyms; and “a high degree” is not the same as “absolute”, in reference to Hong Kong’s autonomy. Unfortunately, a literal reading of the Joint Declaration does not find any clear promise for a thoroughly democratic Hong Kong.

In terms of complaints about China’s recent demands for the Hong Kong 2017 Chief Executive election (for a less accessible nomination system and that candidates “love China”), the Joint Declaration arguably does not serve as a protection, because it does not mandate Chief Executive elections – the wording allows for “consultations” to be held instead.

Despite this, some critics have recently argued that Britain should be pressuring China into democratizing Hong Kong, based on the 1984 Joint Declaration. The reality, however, is that this treaty is hardly a prescription for a completely democratic Hong Kong. The document’s lack of language relating to democratization means there is little that Britain could hope to enforce.

Simply put, Britain was not able to get China to clearly commit to Hong Kong democracy in the Joint Declaration. Perhaps counter-intuitively, subsequent legal promises made by China that did not involve British signatories went much further in committing the Middle Kingdom to increasing democracy in Hong Kong – particularly universal suffrage.

Hong Kong Basic Law

The next legal document of importance is the Hong Kong Basic Law, which serves as the territory’s constitution and was promulgated by the Chinese government in 1990. The Basic Law was created by a drafting committee that was dominated by Chinese government officials, and to a lesser degree, the Hong Kong business community. There was no formal British representation in the drafting committee. Given the significant role that the Chinese government had in drafting the Basic Law, its contents should be interpreted as China’s key legal promises to the people of Hong Kong.

What does the Basic Law say about Hong Kong’s democratization? Like the Joint Declaration, the Basic Law commits China to allowing Hong Kong “a high degree of autonomy.” But the Basic Law goes much further: it features the terms “democracy”, “democratic” and “universal suffrage.” It states that the “ultimate aim” is for elections featuring universal suffrage for both the Chief Executive and the legislature – although the Chief Executive elections are to feature a nomination committee. For both types of elections, “the principle of gradual and orderly progress” is to be used to determine how elections should be run – or in other words, elections are to become progressively and incrementally more democratic over time, until the “ultimate aim” is reached.

Clearly, from a general perspective, the Basic Law stipulates that HongKong is supposed to become democratic. But democracy is not a binary concept, in which you either have it or you don’t: instead, there are many shades of grey. No country or political system is entirely democratic. And seeing that China has offered Hong Kong elections with universal suffrage – for both Chief Executive and the legislature – China seems to at least be abiding by the democratic principle of letting people vote freely.

Being able to vote is one thing – but what about being able to stand for office? Are there existing obstacles in the Basic Law that prevent Hongkongers from running for Chief Executive, or is this a new development?

Chief Executive nomination process: existing promises

Basic Law Article 45 states that the “ultimate aim” for selecting Hong Kong’s Chief Executive candidates is “by a broadly representative nominating committee in accordance with democratic procedures.” Annex 1 of the Basic Law clarifies the membership categories of this Chief Executive nomination committee. This existing requirement for a nominating committee is probably the least democratic element of Hong Kong’s elections as stipulated by the Basic Law, as it forces potential Chief Executive candidates to secure a significant amount of support from a committee dominated by financial and professional representatives.

Article 26 states that any Hong Kong permanent resident may stand for election – but only “in accordance with law.” And since Article 45 stipulates the use of a nomination committee to select Chief Executive candidates, Article 26 does not act as a guarantee that anyone may run for Chief Executive.

Article 39 is perhaps the most intriguing; it states that the provisions of the International Covenant on Civil and Political Rights (ICCPR) apply. This United Nations-adopted treaty states that: “Every citizen shall have the right and the opportunity … to be elected at genuine periodic elections…” Basic Law Article 39 also states that the Basic Law may restrict rights and freedoms, but not any that are contained in the ICCPR (as well as a handful of other documents).

So the question becomes: does the presence of a nomination committee violate the ICCPR? Probably not. If the United States of America can purport to be a pinnacle of democracy, despite employing a system for nominating its presidential candidates that is severely limiting, the chances of having Article 45 and Annex I of the Basic Law struck down (as per Article 39 paragraph 2) look fairly remote. The requirement for a nominating committee has been in the Basic Law since it was adopted in 1990 – some 24 years ago – and there is no wording in the Basic Law that states that the increasing democratization of the Chief Executive elections would ultimately lead to the elimination of a nomination committee.

Actual promises aside, some Hong Kong protesters, perhaps emboldened by the promise of universal suffrage in 2017, are demanding an equally-democratic Chief Executive nomination system – one that would feature civil nominations, negating the need for a nominations committee. However, the Basic Law does not commit to this, nor has China ever specifically articulated the desire for such a system.

China’s first new demand: a more challenging nomination threshold

When China recently outlined its desired changes for the 2017 Hong Kong Chief Executive election, one of the two “ultimate aims” of the Basic Law was to be realized: universal suffrage. However, some people in Hong Kong became infuriated when they learned that the other “ultimate aim” – a “broadly representative nominating committee in accordance with democratic procedures” – would not be fully realized. In fact, some critics have argued that the re-jigging of the Chief Executive nomination process would make it less democratic in 2017 than it had been in 2012 – a step backward.

China desires to retain its political filter in Hong Kong’s Chief Executive selection process, to keep out candidates who would be confrontational with the Beijing government – assertive pan‑democrats likely being China’s greatest worry. This filter was previously located in the election stage of the Chief Executive selection process, by restricting voting to an elitist Election Committee. But because China has agreed to allow voting by universal suffrage as of 2017, and thus can no longer filter which Chief Executive candidate is elected, China needs to move its filter to somewhere else in the selection process – the nominating stage.

As previously mentioned, China’s intention for the 2017 Hong Kong Chief Executive election is to restrict the total number of nominations (to a maximum of three), and that nominations would require the support of a much larger percentage of the nomination committee (which would still be dominated by business-friendly members who are arguably indifferent to democratization). A pan‑democrat candidate such as Anthony Ho who was able to secure a nomination in 2012 would likely not be able to do so in 2017. And hence, we hear accusations from pro-democracy Hongkongers that China is reneging on its promise to incrementally implement democracy, as securing a nomination will be more difficult than it has been previously.

Is China’s attempt to restrict the Chief Executive nomination process in violation of the democratic concessions offered in the Basic Law? While the language of the Basic Law is more specific and detailed than the Joint Declaration, it is still vague enough to give the Chinese government considerable wiggle room in terms of interpretation. The terms “broadly representative” and “in accordance with democratic procedures” in Article 45 are unfortunately not defined, and thus remain a matter of contention. Beijing has argued that the existing Elections Committee (and future nomination committee) is already “broadly representative” of Hong Kong society, given that the committee includes members represented by industry, commerce, finance, professions, labour, social services, religions and other sectors.

As for the ambiguous term “in accordance with democratic procedures,” China could argue that the existence of a nominating committee that limits who can run for Chief Executive isn’t necessarily against democratic procedures, seeing as other democracies like the United States feature similar systems that significantly limit who can become the top politician.

What about accusations from critics that the Chief Executive nomination process will become less democratic in 2017 – that democracy would actually regress in this area? Does current Basic Law wording permit democratic regression?

The “principle of gradual and orderly progress” in Article 45 is one area where critics of China’s recent demands may find support in the Basic Law. While the document does not include a timeframe for the increasing democratization of elections, the term “gradual … progess” would seem to indicate a linear direction toward increasing democracy, and not be supportive of democratic regression (as we see with what may become increasingly unobtainable Chief Executive nominations for 2017). Unfortunately for democracy advocates, however, there is no specific wording in the Basic Law that unambiguously denies China the right to “democratic regression.”

Another issue is the lack of a clear timetable for when the aforementioned “ultimate aims” for Hong Kong’s elections are to be realized. No dates are specified, unfortunately leaving ample legal room for the Chinese government to delay full implementation if they choose to do so. Some Hongkongers may have assumed that realizing one “ultimate aim” in 2017 (universal suffrage) would mean realizing the other (a highly representative nomination system), but the Basic Law does not mandate that both “ultimate aims” be realized simultaneously.

China’s second new demand: “love China”

Beijing’s second controversial proposed amendment to the 2017 Hong Kong Chief Executive nomination process is that candidates must “love the country” (which refers to China). This has been interpreted as meaning that candidates who could be a regular thorn in China’s side would not be eligible for nomination. The Chinese government recently stated that they feel the “…need to maintain long-term prosperity and stability of Hong Kong and uphold the sovereignty, security and development interests of the country.”

Does this “love China” condition of Chief Executive nominees violate existing promises in the Basic Law? In addition to the guaranteed “high degree of autonomy,” numerous mentions of protecting rights and freedoms are peppered throughout Hong Kong’s constitutional document, and there does not seem to be any language that would support the notion of China barring Chief Executive candidates based upon their political opinions.

The proposed “love China” requirement is perhaps the strongest argument that China intends to break existing promises in the Basic Law. As mentioned earlier, Basic Law Article 39 enshrines the International Covenant on Civil and Political Rights (ICCPR); Article 26 of that document states that people are to be guaranteed “…protection against discrimination on any ground such as … political or other opinion…”

China could perhaps argue that Basic Law Article 45 does contain the word “orderly”in terms of how the Chief Executive selection process was intended to evolve over time, which could be Beijing’s escape clause to insist that candidates be “patriotic.” (And remember that Article 158 gives Beijing the right to unilaterally interpret the Basic Law.) However, Article 39 (which enshrines the aforementioned ICCPR) has unusually stringent wording, and states that laws in Hong Kong’s constitution may not violate the ICCPR. As such, there seems to be little in the Basic Law that could justify Beijing’s “love China” stipulation, and any such insertion would likely be found to violate Article 39.

Some have argued that China’s expressed desire for Hong Kong politicians to “love China” is nothing new (and thus is not a broken promise). For example, former Chinese leader Deng Xiaoping made the following statement in 1984: “It must be required that patriots form the main body of [Hong Kong’s] administrators … we only ask them to love the motherland and Hong Kong.” However, this sentiment was not captured by any legal documents: the 1984 Joint Declaration contains an annex of China’s policies regarding Hong Kong, and the need for Hong Kong politicians to “love China” is not included.

Extralegal promises

Besides the aforementioned legal documents (Joint Declaration and Basic Law), have any less formal (or “extralegal”) commitments been made by China to increase the democratization of nominating Hong Kong’s top politician?

Perhaps, but several problems arise. Firstly, if they were made outside of legal agreements, what weight do they carry? Politicians renege on their promises regularly – even in democracies.

Secondly, who made the promises, and when were they made? In a letter from May 1984, Chinese Premier Zhao Ziyang promised Hong Kong students that democratic rights would be protected. But Zhao was later put under house arrest by the Chinese government for being too lenient regarding student-led democracy protests in Beijing. Should Zhao’s letter still be seen as a commitment from China, knowing that Zhao was later purged by his regime?

Another promise was made in March 1993, by no less than China’s chief negotiator regarding Hong Kong, Lu Ping. In a newspaper article, he wrote: “How Hong Kong develops its democracy in the future is completely within the sphere of the autonomy of Hong Kong. The central government will not interfere.” Lu’s promise of autonomous democracy is intriguing, in that it was made post‑Tiananmen; and according to Chris Patten, the last British governor of Hong Kong, China’s Foreign Ministry later confirmed Lu’s statement. However, rather puzzlingly, this same Lu Ping also stated, also in 1993, that Hong Kong should not become a “political city” and must remain only as an economic hub. Long before the 1997 transfer, Lu was saying very contradictory things about Hong Kong democratization.

Conclusion: has China broken its promises for democracy to Hong Kong?

Have China’s new demands for the Hong Kong 2017 Chief Executive nomination process broken its earlier promises? China’s desire to ensure that nominees must “love China” – or more accurately, the ability for the Chinese government to be able to filter Hong Kong Chief Executive nominees based upon what they think or how they feel – is perhaps the most violating of Beijing’s requests. Other than that, most of China’s desires are arguably not egregious breaches of previous promises – at least in terms of a literal interpretation of the legal documents.

Poorly-constructed legal documents and the unreliability of extralegal promises make other accusations of broken democratic commitments extremely subjective as best. China’s constitutional commitments to Hong Kong in the Basic Law have been written vaguely; it’s unclear exactly what the “ultimate” system of Chief Executive nomination‑by-committee should look like. The lack of implementation dates in the Basic Law also absolves China from having to make improvements to the nomination committee specifically in time for the 2017 election. Extralegal promises contained in letters and newspaper articles perhaps don’t hold much weight when those who offered such promises were either subsequently purged or significantly contradicted themselves.

Did China intend for Hong Kong to become a full democracy? Some have argued that China committed to the “principle” of democracy in Hong Kong, and that by refusing to permit civil nominations for Chief Executive, China is reneging on a promise for genuine democracy. But perhaps the most telling aspect of the Basic Law is its first chapter: General Principles. The word “democracy” is noticeably absent. It does refer to “fundamental rights and freedoms”, but not democracy. Nor should “autonomy” be confused with democracy. As such, can full democracy for Hong Kong said to be a principle of the Basic Law? Perhaps not.

It is probable that the Chinese government was willing to include in the Basic Law eventual universal suffrage for all levels of Hong Kong elections only if China could counter this with a nomination committee that would act as a filter to ensure that Chief Executive candidates who might regularly challenge China’s government would not be elected.

Are civil nominations more democratic than nomination-by-committee? Definitely. There is nothing inherently wrong with Hong Kong protesters wanting civil nominations and full democracy, nor for them to state that they feel that the Basic Law doesn’t meet their democratic aspirations. However, China insists that all participants abide by the Basic Law – which, rather conveniently, is a constitution that was crafted primarily by Beijing. Even if Hong Kong’s highly polarized society was united around the cause of civil nominations – and it perhaps is not – the Chinese government might simply brush aside any such demands, due to civil nominations not being offered to Hong Kong in the Basic Law. The Chinese government is, after all, a dictatorship.

For those willing to abide by the Basic Law, Hong Kong Chief Secretary Carrie Lam offered a silver lining back in June. She wrote that there could be further improvements in the future to the Chief Executive nomination committee – that this “ultimate aim” in the Basic Law has not yet been realized, and could be further democratized. But for those who seek civil nominations and full democracy, and who don’t feel that the Basic Law offers enough democratic concessions, does that really matter?

In challenging China’s demands for the 2017 Chief Executive election, Hong Kong’s democracy advocates would perhaps do best to focus upon the “love the country” request, which appears to be undue political interference from China, and may violate the International Covenant on Civil and Political Rights (as per Basic Law Article 39). Additionally, the issue of democratic regress proposed for the 2017 Chief Executive nomination system – which may conflict with Basic Law Article 45 – is another topic likely worth pursuing.

The protests of Hong Kong’s democracy advocates are as much complaints that the Basic Law won’t bring Hong Kong the full democratization that they desire, as they are about bringing attention to China’s broken promises. But whether such publicly-aired grievances will successfully pressure China into offering more democratic concessions to Hong Kong than are already included in the Basic Law remains to be seen.

Editor’s note: Harbour Times welcomes contributions RAW! We will conduct a minimal, if any, edit.

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About the author: Devon Rowcliffe is a freelance political commentator who analyzes East Asian and Canadian politics, and has written for Asia Times, (Singapore) Straits Times, Korea Times and Korea Herald. He is based in Vancouver. Reach him via twitter @devonrowcliffe.