The Hong Kong Special Administrative Region (HKSAR) of China has a unique alliance and system of governance, the ‘one country two systems’ rule. While it follows a capitalist system and is a global financial centre and is autonomous in that sense, its policies are highly regulated by the Chinese mainland especially in areas of defense and diplomacy. Hong Kong was transferred by the British to China in 1984 pursuant to the 1984 Sino-British Joint Declaration, and the one country two systems principle was adopted. The Basic Law guaranteeing the city’s autonomy from the mainland in executive, judiciary and legislative matters was signed in 1997, applicable for 50 years.. The document also provides that the Chief Executive’s method of election shall progress towards a system of “universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.” It is this provision that has been mired in ambiguity due to interpretations by pro-democracy activists in Hong Kong and alternatively, the Beijing administration.
The 2014 Umbrella Movement at Hong Kong has arisen from a disillusionment in the pace of political reform Beijing has permitted in the region. When under colonial rule, the Chief Executive was appointed by the British government. Since 1984, the executives have been selected by an election committee of 1200 members from four segments, that of financial sectors, Hong Kong political bodies, professional sectors like higher education and social services, and religious sectors. Reforms are regulated by the legislative branch of the People’s Republic of China, the National People’s Congress. The protests of 2014 have been largely led by student organisations Scholarism and Hong Kong Federation of Students. A civil disobedience movement was initially sought to be led by Benny Tai’s movement Occupy Central With Love and Peace, but the protests soon developed into a non-centralised movement that spread to a large number of areas in Hong Kong. The movement, a series of marches and protests in central and symbolic areas of the city like the Mong Kok, the Admirality, and Causeway Bay. Sit ins and marches were also carried out outside the Chief Executive CY Leoung’s office and home, demanding him to respond to requests for dialogue. The protestors have been demanding for increased autonomy for their region. They demand interference from China to cease, and for Hong Kongers to exercise their right of self-determination in the political sphere by organizing elections democratically. It seems to be a direct challenge to the one-party rule in China. The protestors believe that China has reneged on its promise made in 1997, that of the Basic Law by which Hong Kong’s Chief Executive would be elected by a system of universal suffrage by 2017. A 2014 decision by the standing committee of the National People’s Congress has granted them the right to elect their candidate via universal suffrage, but only from a pre-screened list of candidates chosen by China itself, consisting of candidates who “love the country and love Hong Kong”. This evidently ensures that only those candidates politically loyal to the mainland will be permitted to run for the post of Chief Executive. Protestors in Hong Kong demand for the right to elect their own candidate from the populace, and not from the pre-determined list. They demand for a reform of the electoral system, to ensure self-determination consistent with the guarantee of a ‘high degree of autonomy’. Beyond the demand for freedom and democracy from the mainland, the people of Hong Kong have sought to assert their own identity, as distinct from the Chinese. They have a different culture of their own, heavily influenced by their colonial past, and also speak different dialects of Chinese.
Beijing however, does not seem willing to grant any of the requests that could undermine the supremacy of the communist system it follows against the western-backed demand of democracy. It asserts that the protestors are lawbreakers mounting to “challenge the supreme state’s power organ”.
Municipal Law or International Law?
The United States of America have proposed a legislation which would enable them to monitor the status of human rights and autonomy in Hong Kong and use it to augment US-Hong Kong relations accordingly. It bases the proposed legislation on China’s obligations under the International Covenant of Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) which provide international standards for elections, guaranteeing citizens the right to vote and be elected in genuine periodic elections by universal suffrage. Of course, China has the principle of non-interference in domestic matters of states to back its stand. The principle is grounded in the precept of a state’s sovereignty, territorial integrity and political independence. There are varying opinions on what the policy, interfering in a way to influence domestic policy of another nation in a particular direction, could be characterized as.
Validity under the Basic Law, ICCPR and Bill of Rights
The legal provisions in the Basic Law and in the Joint Declaration have remained ambiguous, and hence, interpreted differently by Beijing and by the Hong Kong protestors. Article 3(4) of the Declaration provides that the Chief Executive shall be appointed on the basis of locally held elections. The Basic Law further provides in Article 45 that the goal is to gradually progress towards a system of universal suffrage, though the deadline has been delayed multiple times by the standing committee of the National People’s Congress. It can be argued that the provision for elections covers a wide variety of types of elections, including indirect elections and in that China’s reform proposal of 2014 is valid. Given that the elections are to be held locally as provided, it would seem that elections from a predetermined list of candidates would also be consistent with China’s obligations under the Joint Declaration. It could alternately be argued that imposing conditions on a process of formal elections like allowing only a pre-selected list of candidates to stand would strip the provision of any reasonable meaning and significance. It is difficult to substantiate these claims and the validity of the 2014 decision based solely on the Joint Declaration, and reference must be made to obligations under the ICCPR and the Basic Law.
Provisions in the Basic Law, most importantly Articles 45, 68, 26 and 39 set out widely worded terms like “in light of the actual situation in Hong Kong”, “principle of gradual and orderly process”, etc. for the transition to democratic processes to be undertaken. All these elements will likely be interpreted and debated over to ascertain their implications. It does not provide for a specific timeframe for the achievement of the aim, but sets out criteria against which any proposed reforms may be assessed. It might be possible to argue that the 2014 decision is inconsistent with the Basic Law provisions under Article 45, 26, 68 and 39, considered together with provisions of the ICCPR and in accordance with the “actual situation in Hong Kong”.
The ICCPR under Article 25 provides for the electoral system, that every citizen will have the right to take part in elections, to vote and be voted without unreasonable restrictions. However the UK on its ratification of the ICCPR in 1976 chose to reserve Article 25(b)’s application in the Hong Kong SAR, and when it was transferred to China in 1997, it inherited the reservation. Article 25 has been adopted in the Hong Kong Bill of Rights with the proviso that it does not entail the establishment of a legislative or executive council. It would be difficult to argue that the reservation is contrary to the purpose and object of the ICCPR. Additionally, Article 25 stipulates for genuine periodic elections, but without specification of the public bodies that are to be elected. It does not by implication mean that the head of the state is inclusive under these elections, directly, though it does include elections to the legislative and executive council. The test here for validity of the 2014 decision would be to check whether it fulfils reasonable requirements such as having a fairly representative nomination list whose process is transparent, and there must be no unreasonable restrictions on people applying to be nominated for the election. The system in question fails these requirements, as the nomination requirement of people “who love China and love Hong Kong” cannot be said to be reasonable, the selection committee is not transparent and neither is the criteria for eligibility, the threshold for which being 1200 members and the cap being 2-3 nominees.
Thus, there can be arguments made to assert that the electoral reform system proposed by China in 2014 is inconsistent with the Basic Law, the ICCPR and the Bill of Rights.
Joshua Wong has intensified the raging political debate by launching a political party to bolster his demand for political reforms in the electoral system. Members of Demosistō are going to run for the legislative and executive council elections scheduled for September 2016 and hope to revolutionise the present system to “regrasp ‘our’ political agenda through democratic self-determination.”
By: Vidushi Sanghadia, NALSAR University of Law, Hyderabad