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An Introduction to the Chief Executive Electoral Reform Debate

July 25, 2014

Background

Seventeen years after China’s resumption of sovereignty over Hong Kong, the former British colony has returned to the spotlight. The debate over reforms to the process for selecting the city’s next Chief Executive in 2017 has reached fever pitch. Democracy advocates are rallying behind the “Occupy Central” civil disobedience movement; authorities in Beijing have responded by threatening suppression by the People’s Liberation Army. But what is the argument about, and what is truly at stake?

The Existing Legal Framework

China’s “basic policies” towards Hong Kong are set out in Article 3 and Annex I of the Sino-British Joint Declaration of 1984.[1] These policies included a “high degree of autonomy” for Hong Kong, the preservation of basic rights and freedoms, and appointment of the Chief Executive based on the results of “elections or consultations.”[2] As an international treaty, the Joint Declaration and its annexes are binding on China.[3]

The Basic Law—Hong Kong’s constitutional document—is supposed to implement China’s obligations under the Joint Declaration.[4]  As such, Article 39 of the Basic Law states that the provisions of the International Covenant on Civil and Political Rights, “as applied to Hong Kong,” will remain in force.[5] Article 45(2) of the Basic Law further provides that the “ultimate aim” is for the Chief Executive to be selected “by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.”[6] However, the Chief Executive is currently selected by a 1,200-strong Election Committee specifically designed to be “overwhelmingly pro-business and pro-Beijing in its leanings.”[7] The process of amending the Chief Executive electoral procedure is governed by Annex I to the Basic Law. If “there is a need” for amendment:

… [S]uch amendments must be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People's Congress [NPCSC] for approval. [8]  (Emphasis added)

In a 2007 decision, the NPCSC declared that Hong Kong could elect its Chief Executive by universal suffrage in 2017.[9]

The Current Debate

The crux of the current debate is what “universal suffrage” actually means. Beijing’s position has been that the Hong Kong electorate may elect only candidates that a Nominating Committee—to be constituted along similar lines to the existing Election Committee—has pre-selected for political loyalty.[10] The pro-democracy camp in Hong Kong opposes such “filtering.” [11] The Occupy Central movement—which has threatened to bring the city’s Central business district to a standstill if Beijing will not allow universal suffrage in line with international standards—conducted an informal referendum from June 20 to June 29, 2014. The referendum, which drew nearly 800,000 voters[12] despite “one of the largest and most sophisticated denial-of-service attacks in the Internet’s history,”[13] overwhelmingly endorsed nomination of Chief Executive candidates by the Hong Kong electorate—a form of nomination that Beijing categorically rejects.[14]

Of the voters who participated in the referendum, 87.8 percent thought that the city’s legislature (the Legislative Council or LegCo) should veto any proposal that does not comply with international standards.[15] Pro-Beijing politicians, as well as China’s State Council in its recent White Paper on “One Country, Two Systems,” have downplayed the role of the Joint Declaration and the ICCPR.[16] The Hong Kong and Beijing governments continue to rely on Britain’s reservation to Article 25 of the ICCPR made on Hong Kong’s behalf in 1976, the effect of which was to exempt Britain from an obligation to hold elections for Hong Kong’s legislature and governor.[17] However, the Human Rights Committee—responsible for overseeing compliance with the ICCPR—has maintained that the reservation in relation to legislators lapsed once Hong Kong conducted legislative elections.[18] The same reasoning applies to Chief Executive elections. Although the Joint Declaration on its face permits the Chief Executive to be selected by means other than elections, its provisions must be interpreted in light of the conduct of the parties, as well as current rules of international law.[19] Under such rules, the word “elections” in the Joint Declaration must be interpreted as having a substantive meaning; an “election” in which only one person voted would have no meaning at all. As Beijing has chosen to appoint the Chief Executive after elections, it is bound to hold such elections in accordance with international standards.[20] Beijing’s “bottom line”—its requirement that candidates for Chief Executive be pre-filtered for pliant political views[21]—is inconsistent with these standards.[22]

What Next?

Beijing’s increasingly histrionic reaction to calls for democratic reform suggests that it is simply not interested in fulfilling its international obligations. A senior Mainland figure threatened to deploy the PLA in response to Occupy Central;[23] the referendum was condemned by Beijing as “illegal” and targeted by online attacks.[24] Despite these threats, over 500,000 people voted in the referendum’s first 29 hours.[25]  Unless and until Beijing reconsiders its bellicose response to demands for democracy in Hong Kong, such confrontations are likely to continue.


Notes:

[2] Ibid. at art. 3, and Annex I.

[3] Ibid. at art. 8.  See also Xiao Weiyun, One Country, Two Systems: An Account Of The Drafting Of The Hong Kong Basic Law 13 (2001).  Xiao was a member of the Basic Law Drafting Committee and hailed as one of the “guardians” of the Basic Law: see Jimmy Cheung, “Basic Law ‘Guardian’ Dies at 78,” South China Morning Post (Hong Kong), July 16, 2004.

[4] The Basic Law’s creation is also authorised by the Constitution of the People’s Republic of China: Xianfa art. 31 (1982) (China).

[5] Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (hereafter, Basic Law) [Zhonghua Renmin Gongheguo Xianggang Tebie Xingzhengqu Jibenfa (中華人民共和國香港特別行政區基本法)], promulgated by Order No.26, Pres. of China, April 4, 1990, effective July 1, 1997.

[6] Ibid.

[7] Te-Ping Chen, “Meet Hong Kong’s Voters — All 1,200 of Them,” China Real Time, March 19, 2012.

[8] Basic Law, supra n. 5, Annex I.

[9] Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2012 and on Issues Relating to Universal Suffrage [Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Xianggang Tebie Xingzhengqu 2012 Nian Xingzheng Zhangguan He Lifa Hui Chansheng Banfa Ji Youguan Puxuan Wenti De Jueding (全国人民代表大会常务委员会关于香港特别行政区2012年行政长官和立法会产生办法及有关普选问题的决定)], adopted by the Standing Committee of the National People’s Congress, December 29, 2007.  

[11] See “Manifesto [信念書],” Occupy Central with Love and Peace; and “Manifesto,” Alliance for True Democracy, March 21, 2013.

[12] Occupy Central, “Nearly 800 thousand Hong Kong people voted against non-genuine universal suffrage,” June 30, 2014 (copy on file with author).

[13] Paul Mozur and Chester Yung, “Hong Kong Democracy Poll Hit by Cyberattack,” The Wall Street Journal, June 20, 2014.

[14] See “A showdown looms,” The Economist (London), June 21, 2014; “Unofficial Hong Kong vote rattles China,” Al-Jazeera, June 20, 2014;  and Michael Forsythe, Chris Buckley, and Alan Wong, “In Hong Kong, an Unofficial Election Draws Beijing’s Ire,” The New York Times, June 20, 2014. See also Occupy Central, supra n.12.

[15] See Occupy Central, supra n. 12; and Forsythe, Buckley, and Wong, supra n. 14.

[16] See “Full Text: Chinese State Council White Paper on ‘One Country, Two Systems’ Policy in Hong Kong,” South China Morning Post (Hong Kong), June 10, 2014; Michael C. Davis, “With white paper, Beijing may have achieved the opposite of what it wants,” South China Morning Post (Hong Kong), June 16, 2014; Tony Cheung and Emily Tsang, “Query on Need to Meet World Standards,” South China Morning Post (Hong Kong), July 11, 2013;  and Stuart Lau and Colleen Lee, “Basic Law expert accused of twisting facts on voting rights,” South China Morning Post (Hong Kong), April 1, 2013.

[17] See Hong Kong Government, Third Periodic Report of the Hong Kong Special Administrative Region of the People’s Republic of China in the Light of the International Covenant on Civil and Political Rights (2013), para 315-23.

[18] See Human Rights Committee, Concluding Observations of the Human Rights Committee (H.K.), U.K., U.N. Doc. CCPR/C/79/Add.57 (1995), para 19; and Sarah Joseph and Melissa Castan, “International Covenant on Civil and Political Rights: cases, materials, and commentary,” 742 (3rd ed. 2013).

[19] For an explanation of the public international law implications of the current Chief Executive debate generally, see Alvin Y. H. Cheung, “Road to Nowhere: Hong Kong's Democratisation and China's Obligations Under Public International Law,” Brooklyn Journal of International Law (forthcoming June 2015), (working draft).

[20] Ibid.

[21] Qiao, supra n. 10.

[22] Chiiko Bwalya v. Zambia, Communication No. 314/1988, U.N. Doc. CCPR/C/48/D/314/1988 (1993); and Joseph and Castan, supra n. 18, at 745.

[23] “A showdown looms,” supra n. 14.

[24] Paul Mozur and Chester Yung, “Hong Kong Democracy Poll Hit by Cyberattack,” The Wall Street Journal, June 20, 2014; and “More Than Half-a-Million Vote in Hong Kong Democracy Poll,” Agence France-Presse, June 21, 2014.

[25] “More Than Half-a-Million Vote,” supra n. 24.

 

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About the Author

Alvin Y. H. Cheung(张语轩)is a non-practicing member of the Hong Kong Bar and a Master of Laws (International Legal Studies) graduate of the NYU School of Law. He is the author of a forthcoming paper on the international law aspects of Hong Kong’s ongoing Chief Executive electoral reform debate.

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