Simon Young on Political System Transformation in Hong Kong (Verfassungsblog)

"Political System Transformation in Hong Kong"

Simon Young
Verfassungsblog: On Matters Constitutional 

Published on 13 April 2021

China’s National People’s Congress (NPC) and Standing Committee of the NPC (NPCSC) decided in March 2021 to transform Hong Kong’s political system. Within a couple of months, the Hong Kong government will amend local laws to enable elections for a reconfigured Election Committee (EC) and Legislative Council (LegCo) to be held, respectively, in September and December 2021, ahead of the Chief Executive (CE) election in March 2022.

Reforming Hong Kong’s electoral system

The CE is Hong Kong’s political leader, accountable to both the central government and the Hong Kong Special Administrative Region (HKSAR). The CE is nominated by EC members, elected by the EC, and appointed by Beijing. The EC was first established in 1998 with 800 members divided equally across four sectors. In 2012, it was expanded to 1,200 members. EC members are elected by almost 250,000 voters, most of them individuals, some corporate. To run for CE a nomination by one-eighth of the EC members is needed, and the successful candidate needs more than 50 per cent support. The CE is not allowed to be a member of a political party. The new reforms will increase the size of the EC by another 300 members, add a new sector for Hong Kong members of national bodies, abolish individual voting, and give EC members the power to nominate LegCo members. ...  Click here to view the full text.

Essays on the Hong Kong Umbrella and Taiwan Sunflower Movements (new book chapters)

Law and Politics of the Taiwan Sunflower and Hong Kong Umbrella Movements

Brian C Jones (ed)
2017, Routledge, 236 pp
4. "The Law and Politics of Constitutional Reform and Democratization in Hong Kong"
Albert HY Chen

Introduction: A few weeks after China’s National People’s Congress Standing Committee (NPCSC) promulgated its Decision of 31 August 2014 on the model for the election by universal suffrage of Hong Kong’s Chief Executive in 2017, the “Occupy Central” Movement – also known as the “Umbrella Movement” -- engulfed several key government and business districts in Hong Kong. As in the case of the “Sunflower” Movement in Taipei earlier in the same year, students played a very important role in the Hong Kong movement. Whereas the movement in Taipei was in protest against the ruling regime’s policy of economic cooperation with Beijing, the movement in Hong Kong was a popular protest against Beijing’s policy towards, or restrictions on, democratization in Hong Kong. 

     Beijing’s policy on Hong Kong’s democratization was purportedly based on the provisions of the Basic Law of the Hong Kong Special Administrative Region (HKSAR), which was enacted by the National People’s Congress (NPC) in 1990 and came into force when Hong Kong’s status changed from that of a British colony to a Special Administrative Region (SAR) of the People’s Republic of China (PRC) on 1 July 1997. Ironically, so were the demands of the protestors, who alleged that the NPCSC Decision of 31 August 2014 constituted a breach of Beijing’s promise to the people of Hong Kong that the democratic election of the Chief Executive (CE) of the HKSAR by universal suffrage would be introduced – a promise enshrined in the text of the Basic Law itself. In this sense, the “Occupy” Movement in Hong Kong can be considered a social movement that drew on legal norms as an important component of its strategy of mass mobilization. How then could both the legitimacy of the NPCSC Decision of 31 August 2014 and the claims of the protestors be simultaneously based on the Basic Law – the constitutional instrument of the HKSAR? This chapter seeks to answer this question by reviewing the evolution of Hong Kong’s political system and investigating into the different understanding and interpretations of the Basic Law on the part of the Chinese regime and on the part of democracy activists in Hong Kong. 

     This chapter consists of the following parts, apart from this Introduction. First it examines the development of Hong Kong’s political system since colonial times, and the provisions of the Basic Law governing the political order of the HKSAR. It then briefly reviews the movements towards democratization that took place since the establishment of the HKSAR in 1997. Next it considers developments since early 2013, when the “Occupy Central” campaign was launched to struggle for the realization of “genuine universal suffrage” in the election of the CE of the HKSAR. Finally, it concludes by reflecting on the contradictions and tensions inherent in the project of “One Country, Two Systems” that were revealed by the failure of the “Occupy” Movement in realizing its democratic aspirations, particularly the conflict between the Communist Party-led socialist political system in mainland China and the aspirations towards Western-style liberal democracy on the part of democracy activists in Hong Kong.

5. "Political Protest in High-Income Societies: The Case of the Occupy Central Movement in Hong Kong"

Hualing Fu

Introduction: Hong Kong is a metropolitan city that enjoys prosperity, freedom and the rule of law. It is also a city that recently (1997) came under China’s authoritarian rule. The tension in Hong Kong’s political system is manifested in the continued struggle to reconcile with its new political master and the corresponding demand for democratic advancement. As a “semi-democracy”, Hong Kong is constitutionally committed to universal suffrage, and there is a deeply felt passion and aspiration among residents in the city for liberal constitutional democracy. But the commitment to democracy is ironically made by a Communist Party authoritarian state that is fearful of, if not hostile to, the very concept. The fight for democracy in the sub-national unit within an authoritarian regime has defined and continues to define Hong Kong’s political landscape. 

     Hong Kong has been a difficult place for China to govern. Its political freedom and openness, independent and powerful legal system, and vibrant and challenging civil society are alien to the Central Authorities in Beijing. For them, Hong Kong remains uncharted water in many fundamental aspects. Yet as difficult and costly as it has been, China has grown confident in its ability to govern Hong Kong with a degree of effectiveness, and increasingly has resorted to constitutional rules and legal process in shaping Hong Kong’s political future. The Decision of the National People’s Congress Standing Committee on 31 August 2014, as discussed below, is the most recent example of how China suffocates Hong Kong’s democratic impulses through legal interpretation. But China’s rule of law concept is an authoritarian one. Will it prove effective in deflecting and silencing resistance from political and legal institutions in Hong Kong and in limiting Hong Kong’s constitutional options? 

    Deeply concerned with a real decline in Hong Kong’s way of life, frustrated by the authoritarian rule of law that the Central Authorities impose on Hong Kong, and desperate for the lack of democratic mandate that may entrench Hong Kong’s value and institutions, various groups in the city decided to make their political demands outside the established political and legal routes, launching the largest civil disobedience movement to date by occupying main streets at the heart of the city to protest against the 31 August Decision (the movement was referred to as the Occupying Central Movement, hereafter OCM). In doing so, Hong Kong residents took the constitution into their hands, insisting on their own alternative constitutional interpretation. 

    While the pursuit of democratic value through civic participation and the rule of law are both close to the heart of the Hong Kong people, the OCM, as the largest civil disobedience movement to date, reveals a rare moment of a clear tension between the ideals of democracy and the rule of law. The OCM clearly demonstrated Hong Kong’s democratic passion and resilience. For a brief period, the movement gathered so much momentum that the students appeared to be unstoppable. However, with the prolonged nature of the OCM, the movement started to show its adverse social and economic impact, leading to a split in the community which initially showed a high degree of support and solidarity. The democratic potential of civil disobedience for the OCM began to decline and diminish, and its potential instability started to come to the forefront. As time progressed, the OCM was associated more with frustration, fatigue and disorder, and even became linked with political conspiracy and a continued threat to Hong Kong’s rule of law. When pro-OCT activists struggled to cope with internal conflicts, anti-OCM forces were mobilized and brought the occupiers to courts to account. Ironically, it was a court order that drove a fatal wedge into the OCM, dividing the supporter community and undermining the moral of the occupiers. It was the authority of the court and the willingness of the people in the city to obey the rule of law that effectively suppressed citizens’ democratic impulses. 

    With the peaceful ending of the OCM, Hong Kong’s struggle for democracy has turned a new page. The two-and-a-half month display of mass civil disobedience was unprecedented in its scale, epic in its manifestation, and potentially lasting in its impact on Hong Kong’s constitutional development; but it was also highly controversial and divisive. There was the expectation that when all the dust settles, Hong Kong will have to do some serious soul-searching to rediscover its core values, redefine its identity, and locate itself within China. Unfortunately, the OCM has not brought political antagonism to an end. The OCM is much a reflection of divisive society as a catalyzer of a more radical movement, one that may spin Hong Kong out of control.

6.  "The Nomos of Hong Kong's Umbrella Movement"

Daniel Matthews

Abstract: My claim here is that the great success of Hong Kong's pro-democracy "Umbrella Movement" was that it temporarily ruptured the background ordering of the city that we – as legal scholars – so often take for granted. This interruption of the existing normative order or nomos of the city re-posed the questions belonging and by paying due attention to the interruption that the movement enacted ​we can see its enduring significance for Hong Kong’s legal and political settlement. The argument proceeds by first setting out the shift that I propose to take: away from “law” and towards the “nomos”, a term that, as will become clear, opens our thinking to a broader and more dynamic sense of normative ordering than that afforded by a strictly legalistic lens. I then turn to two distinct senses of the “nomos” that I will discuss in relation to the Umbrella Movement. The first, inspired by the German jurist Carl Schmitt, foregrounds the normative force of spatial ordering and the second, inspired by sociologist Peter Berger and the legal theorist and historian Robert Cover, assesses the discursive dimension to normativity, stressing how shared normative commitments are central to the formation of community and a common identity. My claim is that, beyond raising technical, constitutional issues concerning voting rights, the Umbrella Movement’s interruption of the city’s existing spatio-normative distribution posed fundamental questions about the nature of identity and belonging in the territory that goes to the heart of its political significance.

Michael Davis Interviewed on the Lunar New Year Street Violence in Hong Kong (FT)

"Scores injured as Hong Kong police clash with protesters"
Ben Bland
Financial Times
9 February 2016

Hong Kong police and several hundred protesters fought running battles in a popular commercial district early on Tuesday morning in the worst street violence the Asian financial centre has seen since the Occupy movement brought parts of the city to a standstill in 2014.

     Police fired warning shots and used baton charges and pepper spray to subdue what the government called “mobs” after officials faced demonstrations when they tried to remove illegal hawkers.

...

     CY Leung, Hong Kong’s chief executive, condemned what he called a riot, saying the protesters were “seriously jeopardising the safety of police officers and other people at the site”. He said the police would “apprehend the mobs and bring them to justice”.

     When asked by a reporter whether the violence was the result of dissatisfaction with his government, Mr Leung said “you have to ask those people who appeared to be organisers behind this riot” and insisted he would simply “enforce the laws of Hong Kong”.

     But Michael Davis, a professor of law at the University of Hong Kong, urged the government to look at the deeper issues.

     He said the fact that the protesters had rallied round the cause of the street hawkers underlined broader concerns with growing social inequality in the city and a sense that the government was becoming more heavy-handed.

     “You have to go back to the government and ask why has this radicalisation occurred?” he said. “Support for more extreme tactics may be in the minority but the concerns they are raising about democratic reforms and livelihood issues are fairly widespread and the government ignores this at its peril.”... Click here for the full article.

Benny Tai Writes "An Essay that Changes Hong Kong"

A night in mid-January of 2013

Lights are out. Lying in pitch darkness, my mind is still swiveling madly like a spinning engine. Before climbing to bed, I have decided the topic of the article for Economic Journal next week is Occupy Central. After completing the framework and the introduction, I plan to write the substantive part the next day as usual. When I turn off the computer, I still have no idea what to fill in at that very moment.

      After the march on the New Year Day of 2013, a number of protesters occupied the street in Central ending in the arrest of Long Hair for unauthorized assembly. All of a sudden, a thought springs up in my mind: What happens if a lot more protesters occupy the streets of Central? C.Y. Leung, the newly selected Chief Executive is going to deliver his first policy address in the coming Wednesday. I don’t think he will dare to touch the issues of political reform as it is so controversial. He might want to first focus on some livelihood concerns with the hope of enhancing his popularity. We cannot let him go so easily.

     By putting these two considerations together, the idea of Occupy Central is born... Click here to read the full article by Benny Tai in "An Essay that Changes Hong Kong", Democracy Chronicles, 7 November 2015.

P.Y. Lo (PhD 2012) Marks the Anniversary of the HK Umbrella Movement

"Back to the Legal Basics: A Note at the Anniversary of the Hong Kong Umbrella Movement"
Dr. P.Y. Lo (PhD 2012)
ICONnect
3 October 2015

The Umbrella Movement erupted in Hong Kong, a Special Administrative Region (SAR) of the People’s Republic China (PRC), on 28 September 2014 when protestors began to occupy major thoroughfares in mainly three busy business and commercial districts in Hong Kong after the police failed to disperse them using CS gas and pepper spray. These unlawful occupations lasted for 79 days and came to an end with the removal of the last protestors by members of the police said to be assisting in the execution of several court orders made at the suit of private transportation businesses.

      The Umbrella Movement was the unintended culmination of a course of advocacy by various political factions in Hong Kong in 2014 to threaten to use civil disobedience tactics to force the Central Authorities of the PRC to grant at the next stage of the development of Hong Kong’s political system in 2017 a method of election of the Chief Executive that is “genuinely democratic universal suffrage” and the Central Authorities’ substantive rejection of such a demand by a Decision of the Standing Committee of National People’s Congress (SCNPC) adopted on 31 August 2014 (the 8.31 Decision).

      This Note marks the first anniversary of the Umbrella Movement by examining the substantive provisions of the 8.31 Decision as to how restrictive they are and whether they can or cannot be justified as “reasonable restrictions” of a Hong Kong SAR permanent resident’s rights to vote and to be elected, which are guaranteed under Article 26 of the Basic Law of the Hong Kong SAR.

      Although the Hong Kong SAR Government’s proposal for amending the method of selecting the Chief Executive in 2017 by universal suffrage was rejected by the Legislative Council in farcical circumstances on 18 June 2015, the first anniversary of the Umbrella Movement has presented an opportunity for all those concerned to re-focus on the debate about the direction of Hong Kong’s political system for the mid and long-term, not only because the pre-existing electoral method for electing the Chief Executive (based upon an Election Committee composing of four sectors of a total of 1,200 persons elected to represent various sub-sectors in one of those sectors) will continue to be the electoral method for the Chief Executive election in 2017, but also due to the legal bind and the political reality that any future move in developing the Chief Executive electoral method towards a method by universal suffrage will continue to have the 8.31 Decision as the starting point.

      I had earlier in this blog in February 2014 outlined the current electoral method for electing the Chief Executive and considered what the Basic Law of the Hong Kong SAR, particularly Article 45 thereof, envisages to be the electoral framework for returning the Chief Executive of the Hong Kong SAR by universal suffrage. More debates had followed, which led to the 8.31 Decision. The analysis I am going to embark on follows recent scholarship on how the SCNPC works in law-making and extends the coverage to decision-making said to be in accordance with law, which might not be normatively different. The analysis is also necessary to enable the stakeholders (the Central Authorities included) to view the legal position dispassionately and take more rational positions in future negotiations, including revisiting the 8.31 Decision at appropriate time and circumstances... Click here to read the full article.

New Issue: SSRN Legal Studies Research Paper Series (HKU)

Vol. 5, No. 8: 28 September 2015

Table of Contents

1. Role of the Criminal Law in Maintaining Hong Kong as an International Financial Centre
Simon N. M. Young, The University of Hong Kong - Faculty of Law

2. Problems of Judicial Recognition and Enforcement in Cross-Border Insolvency Matters between Hong Kong and Mainland China
Emily Lee, The University of Hong Kong - Faculty of Law

3. Sentencing
Simon N. M. Young, The University of Hong Kong - Faculty of Law

4. Judicial Review of Elections in Hong Kong: Resolving a Contradiction
Simon N. M. Young, The University of Hong Kong - Faculty of Law

5. Rethinking the Process of Political Reform in Hong Kong
Simon N. M. Young, The University of Hong Kong - Faculty of Law

6. Mediation in China: Towards a Modernised and Harmonised Framework for International Commercial Mediation
A. K. C. Koo, The University of Hong Kong - Faculty of Law

7. Ten Years after Halsey
A. K. C. Koo, The University of Hong Kong - Faculty of Law

8. Human Rights, the Rule of Law and Democracy: Recent Experience of Hong Kong and China
Johannes M M Chan, The University of Hong Kong - Faculty of Law

New Issue of Hong Kong Law Journal (Vol. 45, Part 2)

HONG KONG LAW JOURNAL

Editor-in-Chief: Rick Glofcheski

Associate Editor: Albert Chen

Vol. 45, Part 2, August 2015

Table of Contents

Comment

Rethinking the Process of Political Reform in Hong Kong 

Simon NM Young 381

Analysis

Judicial Enforcement of the Listing Rules in Hong Kong 

Tom Ng 389

Omissions and Public Authority Liability: Should Hong Kong Follow England’s Lead? 

Hin Ting Liu 405

Lecture

55 Years in the Law 

Lord Walker of Gestingthorpe 417

Articles

The United Nations Human Rights Inquiry on North Korea: Background, Reaction and Prospects 

The Hon. Michael Kirby AC CMG 425

Leave Without Delay: The Requirement to Make Prompt Application for Leave to Apply for Judicial Review 

Stephen Thomson 449

The Failure of Corporate Internal Controls and Internal Information Sharing: A Conceptual Framework for Taiwan 

Chang-hsien Tsai 469

Using Actuarial Evidence in Singapore and Hong Kong: A Sequel to “Lai Wee Lian Revisited” 

Felix WH Chan, Wai Sum Chan and Johnny SH Li 499

Realising the Right to Health: A Comparative Study of South Africa, the United States and China 

Xiao Pan 517

The Sewol Accident and its Legal Implication 

In Hyeon Kim 547

China Law

Human Rights in China–Taiwan Relations: How Taiwan can Engage China 

Yu-jie Chen 565

Decision-Making and Scrutiny of Rural Land Expropriation in China: Conventional Wisdom and Beyond

Chun Peng 591

Changes and Challenges of the 2014 Revised Environmental Protection Law in the Context of China’s Five Fundamental Transitions 

Mingqing You 621

Measuring China’s Social Insurance Law under International Standards of International Labour Organization and Influences of Social Dimension Provisions of Free Trade Agreements and Bilateral Investment Treaties 

Ronald Brown 651

Book Reviews

International Capital Markets: Law and Institution, Cally Jordan 

Robin Hui Huang 679

Dress, Law and Naked Truth: A Cultural Study of Fashion and Form, Gary Watt 

Marco Wan 687

Simon Young on Rethinking the Process of Political Reform (HKLJ)

"Rethinking the Process of Political Reform in Hong Kong"
Simon NM Young
Hong Kong Law Journal
August 2015, Vol. 25, Part 2, pp 381-388

In a historic vote on 18 June 2015, the Hong Kong government failed to obtain the support of two-third of all 70 Legislative Council (LegCo) members for its proposal on universal suffrage of the chief executive.  Had the proposal been passed, the chief executive would have been elected by up to five million eligible voters in 2017. Ironically, all 27 pan-democrat legislators voted against the proposal, as was expected for many months. They objected to the restrictions imposed by the Standing Committee of the National People’s Congress (NPCSC) in its 31 August 2014 decision. In their view, the restrictions were incompatible with genuine universal suffrage because they effectively enabled the central government to choose two to three chief executive candidates. In an unexpected blunder, only eight pro-establishment legislators remained in the chamber to vote in favour of the proposal; the other 31 left at the last minute hoping to trigger a delay to buy time for a fellow legislator (Mr Lau Wong-fat), who was stuck in traffic, to arrive and cast his vote. Unfortunately, the plan was not communicated well to those who remained in the chamber. Four days after the reform vote, pan-democratic legislator, Mr Ronny Tong, announced his resignation from both the Civic Party and LegCo in order to start a middle of the road think tank known as “Path of Democracy”.

     A process of reform, which began in December 2013, ended in great disappointment for everyone. With the reform proposal rejected, the chief executive will continue to be nominated and selected by a 1200-person election committee, at least until 2022, and the earliest possible year for realising full universal suffrage of the legislature will be 2024, if not 2028.  Many reasons have been given for why the reform efforts failed, eg the lack of mutual trust between the pan-democrat legislators and the central government, the hard-line approach adopted by the central and Hong Kong governments allowing for no compromise or negotiations, the 79-day Occupy Central protests and perceived interference by foreign governments strengthening Beijing’s resolve to adopt a conservative approach to protect national interests, the uncompromising principled position of the pan-democrat legislators, the central government’s indifference to Hong Kong universal suffrage despite outward appearances to the contrary and so on.

     Little attention, however, has been paid to how the process of reform may have contributed to the demise of the reform enterprise itself. No public consultation on the process preceded the public consultation on substantive reform proposals in late 2013. Indeed, surprisingly few questioned the process adopted by the government. It is argued here that the nature and significance of the reform exercise deserved a more participatory process than the one adopted, ie one that involved more meaningful contributions from the public at important moments in the process. The quality of a participatory process should not be measured solely by the numbers of meetings held with or submissions received from members of the public. Receiving meaningful contributions at important moments means that the public is consulted initially not only on reform issues but also on draft reform proposals before they are finalised. It also means that the relevant reform bodies should include membership from independent individuals, whether as experts or representatives of the public. The Hong Kong government should also have consulted and secured agreement with legislators on the process of reform before commencing the reform exercise. If the stakeholders agreed at the outset that the process to be followed would be fair and transparent, it would be more likely that they would accept the outcome from that process... Click here to download the article.

"China Tightens its Two-Systems Approach for Hong Kong" (Michael Davis)

"China Tightens its Two-Systems Approach for Hong Kong"
Michael Davis
YaleGlobal
4 August 2015

Abstract: A one-country, two-systems model describes China’s relationship with Hong Kong. Observers naturally can’t help but weigh the pros and cons of each system, regarding one better than the other. China is tightening controls on the mainland for human-rights advocates, educators and internet users while also denying the “high degree of autonomy” once promised to the citizens of Hong Kong as a special administrative region, explains Michael Davis, a professor of law at the University of Hong Kong. How to proceed on candidates for the 2017 election of Hong Kong’s chief executive is at a stalemate: Pro-democracy supporters would like open nominations, and China prefers to screen candidates. Davis concludes that “It’s not in the interest of local Hong Kong people or global investors for Beijing to increase its grip on Hong Kong.” Lingering dissatisfaction, tightening controls and uncertainty could put Hong Kong’s status as a global financial center at risk.  Click here to read the full article.

Simon Young Interviewed on the Fishermen in Hong Kong's Political System (Associated Press)

"In quirky Hong Kong voting system, fishermen play key role"

Kelvin Chan
Associated Press
23 July 2015

Since China took control of Hong Kong from Britain in 1997, the city's billionaires have played a leading role in hewing the Asian financial center to Beijing's priorities. So too have a dwindling band of fishermen and farmers.

     The desire of China's communist leaders to enlist the tycoons' cooperation is understandable given the influence they have through their control of large swathes of the semiautonomous Chinese city's economy. Chinese President Xi Jinping last year summoned a group of them for an emergency meeting as political tensions in Hong Kong mounted.

    Less known outside Hong Kong, however, is the political role of fishermen and farmers, remnant industries in Hong Kong that form a large slice of the 1,200-member committee that selects the southern Chinese city's pro-Beijing leader. They also have their own representative in the territory's legislature.

     Fishing and farming make up less than 1 percent of Hong Kong's $274 billion economy but command 60 votes in the leadership committee, far more than groups or industries with much greater economic or social significance.

     Their outsized role is a source of discontent in a city that was rocked by pro-democracy protests over the past year as many Hong Kongers chafed against a rising tide of mainland Chinese influence...

     The quirky election system is a legacy of the British, who in the 1980s introduced legislative elections that gave seats to the business and interest groups, known as functional constituencies.

     The Chinese liked the system so much they kept it after realizing they could use it to exert influence and keep loyalists in power, said Simon Young, a Hong Kong University law school professor who wrote a book about the city's elections... Click here to read the full article.

Michael Davis Q&A on World Politics Review

"Hong Kong Faces Another Barrier in Fight for Democracy"
The Editors
World Politics Review
30 June 2015

Earlier this month, Hong Kong’s legislature vetoed an election-reform package that was backed by mainland China but strongly criticized by pro-democracy lawmakers and activists. In an email interview, Michael C. Davis, professor at the University of Hong Kong Faculty of Law, discussed Hong Kong’s democracy movement.

WPR: What do democratic advocates in Hong Kong fear from China’s proposed electoral plan?

Michael C. Davis: China’s democratic reform proposal essentially provides for a vetted election for Hong Kong’s chief executive. Under the Aug. 31, 2014, Beijing decision and the Hong Kong legislative bill to carry it out, a heavily pro-Beijing 1,200-member nominating committee would select by majority vote three candidates to be presented to the voters. Democracy advocates view this as a fake election and fear it is part of a larger pattern of interference from Beijing that will ultimately undermine Hong Kong’s autonomy and, with it, the rule of law

     The Hong Kong Basic Law, the constitutional document of Hong Kong, makes a number of important promises that aim to preserve the character of Hong Kong as an open, rule-of-law-based society. Most relevant to the current debate, Article 45 states, “The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.” A similar commitment to universal suffrage is made in Article 68 for the Legislative Council. The human rights chapter of the Basic Law further guarantees the right to vote and stand for office, and incorporates the human rights guarantees of the International Covenant on Civil and Political Rights. The latter guarantees include the right to a free and fair election, including a free choice of candidates for electoral office. Hong Kong residents take these promises very seriously, as they are viewed as instrumental to preserving Hong Kong’s distinctive character and its basic freedoms. ... Click here to read the full interview.

Albert Chen Interviewed by Emily Lau after the Political Reform Veto

Professor Albert Chen was interviewed in Cantonese by the Honourable Ms Emily Lau on OurTV.hk on 25 June 2015.  In the 30-minute interview, Professor Chen expressed disappointment in the reform vote on June 17th and his belief that the reform debate won't be discussed again until the Legislative Council election in 2016.  He noted Beijing officials' statements to the effect that the restrictions in the 31 August 2014 decision would remain unchanged.  Professor Chen also believed that pan-democrats need to rethink their approach to the political reform issue and avoid oppositional tactics like filibustering, which was not favoured by the public.  Ms Lau said there were indeed many less politically sensitive issues on which pro-establishment and pan-democratic legislators could agree.  She called upon Professor Chen, in his capacity as a member of the Basic Law Committee, to convey to Beijing the Hong Kong people's strong desire for a genuine choice of Chief Executive candidates and their rational and peaceful approach to fighting for political reform.

Michael Davis on What Next for Hong Kong Leaders after Reform Veto

"Reform failure should prod Hong Kong leaders to step up as defenders of our autonomy"

Michael Davis

South China Morning Post

27 June 2015

A lot of recent attention has focused on Hong Kong pan-democrats and what they should do after their failed attempt to secure democracy. This attention might be better focused on the Beijing and Hong Kong governments. Last week's Legislative Council vote was a disastrous end to a nearly two-year campaign to push through alleged democratic reform. Soul-searching by our top officials is clearly needed.

     While opinion polls seemed to suggest equal support for and opposition to the bill, in fact, supporters often acknowledged that the proposal was flawed. Their support was often based on the premise of future changes - hardly a resounding endorsement if this is not a realistic possibility. Given the level of foot-dragging over democratic reform in the past 17 years, one would have to be pretty gullible to expect further significant reform to institute genuine democratic elections.

     Rather, public support for the bill was probably based on the intimidation factor; many were prepared to accept an undemocratic model to avoid further contention. But what is the source of this contention? Laying the blame at the feet of protesters hardly seems fair. The protests were driven by the efforts to block genuine reform. Beijing, in its white paper and its August 31 decision, clearly aimed to block pan-democrats from being presented to voters... Click here to read the full article.

CL Lim on Britain's 'treaty rights' in Hong Kong

"Britain's 'treaty rights' in Hong Kong"
CL Lim
The Law Quarterly Review
July 2015, Vol. 131, pp. 348-354

Recent controversy over democratic reform in Hong Kong has, at its heart, the decision of August 2014 by the Standing Committee of the National People’s Congress (NPCSC) to restrict the choice of candidates while allowing the Hong Kong electorate to elect Hong Kong’s Chief Executive in 2017.

     Critics say that Britain has a "treaty responsibility" in the matter. They intend to refer to treaty obligations arising under the Sino-British Joint Declaration of 1984. However, these obligations are res inter alios acta. Any suggestion that there could be treaty responsibilities which may be owed by Britain to Hong Kong, or its people, is unsound. Nothing in the conduct of successive British Governments seems to have ever suggested this. A more realistic proposition would be that China owes Britain certain treaty obligations, the current Hong Kong controversy involves a breach of Britain’s treaty rights, and since Britain has not hitherto pressed its rights it now has the "responsibility" to do so. All that can be meant by British "responsibility" is that Britain owes a moral responsibility to Hong Kong to press its own treaty rights against China.

      For its part, Beijing has rejected any notion of British moral responsibility. More importantly, Beijing has also denied that there is any treaty right involved in the recent controversy let alone a breach of the Joint Declaration. The fact that the Joint Declaration states nothing about choosing Hong Kong’s Chief Executive by universal suffrage would tend to support Beijing’s view. The instrument in which such an express stipulation may be found, however, is Hong Kong’s Basic Law. Prior to the 1997 handover, the colonial government had attempted to democratise Hong Kong’s Legislative Council (LegCo). But there never was any point in doing that which could easily be undone by Beijing upon Hong Kong’s return to China. Everything therefore depended upon the outcome of what were, then, ongoing discussions between 23 Hong Kong and 36 Beijing representatives on the enactment of a Basic Law for post-handover Hong Kong. As Lord Patten had acknowledged in a speech to LegCo in October 1992, any colonial initiative will as a practical matter have to converge with the Basic Law.

    The upshot of all this was that, while it is merely a piece of Mainland Chinese legislation, all roads lead to the Basic Law... Because the Joint Declaration (Pt XIII, annex I) also states that "the provisions of the International Covenant on Civil and Political Rights … as applied to Hong Kong shall remain in force", it makes the rules of the Human Rights Covenant "relevant" to the interpretation of the Joint Declaration. These rules are "applicable" to any Sino-British treaty commitment concerning electoral reform because art.25(b) of the Covenant guarantees the "right to vote and to be elected at genuine periodic elections which shall be by equal and universal suffrage". There is a British treaty reservation which had excluded art.25(b)’s application to colonial Hong Kong, and which China subsequently preserved, but the reservation applies only to the "establishment" of an elected "Executive or Legislative Council". Arguably, Beijing has already decided to favour such "establishment" and Britain can say that the reservation no longer applies. 

      In sum, the argument for a British treaty right rests upon a prolonged argument about treaty interpretation, the essence of which is that commitments in the Joint Declaration ought to be amplified by terms contained in the Basic Law and that while Britain may have acquiesced to China’s previous interpretations of the Basic Law, this cannot now be taken for granted; not least, because the Human Rights Covenant also needs to be taken into account in interpreting the Joint Declaration... Full text version available on Westlaw.

Michael Davis Explains Why Democrats Vetoed Universal Suffrage in Hong Kong

"China must trust Hong Kong's desire for democracy"
Michael Davis
Nikkei Asian Review
19 June 2015

After nearly two years of planning, discussion and then a year of promoting Beijing's vision of democracy, the Hong Kong government on Thursday suffered an embarrassing defeat on its proposed electoral reform legislation.

      An impromptu walk-out by pro-government lawmakers just before the vote -- supposedly meant to delay proceedings by creating an insufficient quorum -- misfired. There were enough lawmakers left in the legislative chamber for the historic vote to go ahead and the "no's" overwhelmed the "yes" camp by 28 to eight.  However, even if the lawmakers had all stayed and voted, the united front presented by the opposition would still have been enough to veto the bill.

     For many in the local and international communities, this defeat demonstrates the Hong Kong people's vigorous determination to defend their city's autonomy, enshrined in its constitution since Britain returned it to mainland China in 1997.  Many fear Beijing's increasing interference in Hong Kong's internal affairs will bring with it the corruption and lack of rule of law long witnessed on the mainland.

      It may seem strange that the opposition lawmakers -- who come under a loose alliance called the "pan-democrats" -- would vote against a reform bill that was meant to allow Hong Kong people to select their head of government by one person, one vote for the first time.  The version of "universal suffrage" that is acceptable to Beijing comes with severe limitations, however, and they are designed to exclude anyone deemed unfriendly to the central government... Click here to read the full article.

Hong Kong's Democratic Future (Report of the Canadian Foreign Affairs Standing Committee)

From March to May 2015, Canada's House of Commons Standing Committee on Foreign Affairs and International Development conducted a study of the political situation in Hong Kong.  The Committee held three meetings and took evidence from academics, representatives from NGOs, student leaders, and leaders of Hong Kong's pro-democracy movement. The Committee's 29-page report entitled "Hong Kong's Democratic Future" was recently published.  The Committee concluded that "Canada has both an interest and a role in ensuring that the spirit of democracy is respected in Hong Kong, a city with which Canada shares important history, economic ties and personal connections."  It emphasized "that there should be no gap between the rhetoric and the substance of universal suffrage".  In ended the report with three recommendations directed at the Government of Canada. Recommendation 1: The Committee recommends that the Government of Canada state its support for the democratic aspirations of Hong Kong people, including the need for genuine universal suffrage in the election of their political leaders. Recommendation 2: The Committee recommends that the Government of Canada reiterate its support for the ‘one country, two systems’ principle, and for the 1984 Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong. Recommendation 3: The Committee recommends that the Government of Canada encourage dialogue that can lead to governance reforms in Hong Kong that are broadly accepted by all concerned.  Professor Simon Young testified before the Committee and his views were taken into account in the Committee's report.

"Changing the tune of our calls for democracy in Hong Kong" (Kapai & Elgebeily)

"Changing the tune of our calls for democracy in Hong Kong"

Puja Kapai and Sherif Elgebeily

Calls for democracy in Hong Kong, though rooted in serious concerns about the implementation of universal suffrage under the Basic Law, are undoubtedly romanticised; like birdsong, sweet and uplifting, they underscore our hopes for a more egalitarian future for us and our children – yet they risk beckoning us to see only the rose-tinted future without questioning what the path to achieving it entails. These calls spurred into action a public – notably, the younger generation – which has been thought to be apathetic to political and social issues. Recent movements have shown that they are anything but apathetic; they are passionate, hopeful and determined about their democratic future. But what exactly is this effort directed at? The irony is that calls for democracy have moved us further away from its goals of social cohesion than ever before; amidst the emotional crescendo from the Umbrella Movement to the political wrangling over the government’s reform proposal for the election of the next Chief Executive, have we ever paused to consider why we are calling for democracy and how it will serve Hong Kong?

     The actualisation of democracy in Hong Kong has acquired the status of a goal unto itself, without adequate attention paid to questions about which democratic models succeed or fail, and why. In this omission, the pursuit of democracy ‘at large’ without a discussion of the form and context in which an aspirational model is likely to operate in substantive terms, whether as a model that allows civic nomination or a blank vote option, puts the carriage before the horse. It predisposes calls to democracy to fail in fulfilling the expectations of the people of Hong Kong that democracy is the answer that will help fix all wrongs and deliver us from this political quagmire. The answer as to why we strive for democracy so vehemently lies perhaps in the societal conditioning that has nurtured a widespread logical fallacy: freedom is inherently good simply for the sake of offering us freedom. We seem to have taken for granted that democracy is both what we want and need in light of articles 3(2) and 3(5) of the Sino-British Joint Declaration and the promise of gradual and orderly reform towards universal suffrage guaranteed in articles 45 and 68 of the Basic Law. We are confident in Hong Kong that democracy can exist – and indeed, thrive; however, we must first decide what we want our democracy to look like, how we want it to function and to achieve what ends in order to protect our cherished Hong Kong values. 

     The pursuit of ‘democracy’ for democracy’s sake without considering the individual circumstances of Hong Kong and its present needs socially and politically, risks rendering it a meaningless concept. Do we seek democracy simply to mimic overseas systems? If so, we are no better than a schoolchild pleading to his parents for the latest pair of trainers in order to fit in with his peers. Or do we genuinely want an effectively functioning democratic system that will not entrench the mistakes other democratic systems are known for? 

     ‘One person, one vote’, a process of civic nomination and improved representation in the Nomination Committee are often cited as indicators of our vision for a democratic Hong Kong; but if Berlusconi’s iron grip on Italian elections through his quasi-monopoly of the media has taught us anything, it is that even a civic nomination process is no guarantee of a result that is fair. 

     Democracy must achieve egalitarianism in both form and substance so that Hong Kong can address the problems that are the major sources of social discontent and disharmony. How would it address the deep-rooted cleavages across different sectors in society that are currently crippling Hong Kong and fuelling animosity across the political divide: rising property costs, an ever-widening wealth gap, poverty, equal access to education? In the absence of a model with characteristics that fully account for how these issues might fare in the context of a democratic system, democracy – even if attained in name – would be ineffective in practice. 

     Democracy as a ‘predetermined’ model of political arrangement in one form or another is not a panacea for the woes of Hong Kong that can simply be administered to combat a chronic ailment; rather, it is an all-pervasive system that requires the painstaking fostering of an environment conducive to organic growth and integration of the numerous institutions and cultural practices which support successful exercise of democratic political power by its constituents. Successfully achieving democracy is not as simple a task as ticking off a homogenous check-list of flat-pack boxes fresh from the production-line of Democracy Industries™. Rather, it necessitates first the establishment of conditions for a thriving democracy to be functional in practice.

     “Democracy”, Karl Popper tells us, “is the word for something that does not exist” – it is ethereal and intangible. Thus, the quest for democracy ought to be as much about creating culturally and politically enabling conditions to pave the way for outcomes that have come to be universally defined as characteristic of a flourishing democracy – pluralism, freedom of expression and association, the structural and social institutions for change, and dialogue in conditions of reciprocal trust. It is moulding the malleable; it is artistry; it is living needlepoint, weaving the essence of culture, community, language and society into a canvas of supporting factors to create the DNA of a specialised democratic system. Each system warrants its own form of democracy. Therefore, while one cannot pinpoint a universal model of what democracy is, we can certainly identify what it is not.

     Accordingly, today, the basis upon which we can reject the government’s reform proposal is simply that we inherently know this is not democracy – it lies too far away on the spectrum to constitute democracy, even if we have not yet enumerated what the milestones towards democracy on this spectrum are. As we prepare for the looming rejection of the government’s reform proposal for the election of the Chief Executive, we must reflect on why so-called democratic models abroad have failed to deliver on the same issues that have struck at the heart of Hong Kong’s stability. It is only when we turn our gaze critically towards other democracies that we can identify the form our aspirational model of a democratic Hong Kong should take given its present composition, constitution and political constraints; we should not fall prey to demanding that we emulate one or another model blindly simply because certain mechanisms have worked in countries that are brandished as ‘democracies’. We ought to pay close attention to the specific context within which certain mechanisms thrive whilst others fail to do so and use that to inform our cause.

      Without focusing on the details of what we seek so desperately and more importantly, why, just like even the sweetest birdsong, calls for democracy will become nothing more than background noise after the failure of the government’s reform proposal, tuned out as we move forward with our daily lives.

    Ms. Kapai is Associate Professor of Law at the University of Hong Kong and Director of the Centre for Comparative and Public Law, University of Hong Kong; Dr. Elgebeily is Assistant Research Officer at the Centre for Comparative and Public Law, University of Hong Kong.

Political Reform ABC (Ming Pao Interview with Albert Chen)

Political Reform ABC

by Professor Albert Chen

The political reform proposal introduced by the Hong Kong Government has been met with both support and opposition. This article will discuss the controversies by means of Q&As.

Q: What is the political reform proposal all about?

A: In short, the latest proposal is about ‘returning the votes to the people’ in order to achieve the goal of ‘returning the power to the people’ to a certain extent, so that the democratic development of Hong Kong can move one step forward. In the existing Chief Executive election mechanism, the Election Committee formed by 1,200 members from four sectors in the society takes complete control of both the nomination and the election of the Chief Executive. Under the latest proposal, this Election Committee will be transformed into a Nominating Committee. Like the Election Committee, the Nominating Committee will still have the right to nominate Chief Executive candidates, but the right to vote to choose the Chief Executive will devolved to the hands of over 5 million eligible voters. The nominating procedures will involve two stages (the first stage involves a lower threshold for ‘recommendation’ of potential candidates, while the second stage requires the affirmative vote of at least half of all of the Nominating Committee members) for selection of two to three candidates. After that the Hong Kong people may elect the Chief Executive by one person one vote. Then the Chief Executive elect will be appointed by the Central Government.

     At present, Hong Kong people already have the right to elect District Council and LegCo members. The proposal gives extra fundamental civil right to the people, that is to say, the right to elect the Chief Executive. Since Hong Kong’s political system is an ‘executive-led’ system, the right to elect the Chief Executive is a more powerful and important right compared with the right to vote in District Council and LegCo elections.

Q: Why can political reform help Hong Kong’s democratic development move forward?

A: The core value of ‘democracy’ is ‘public opinion can be expressed and will be respected’. The ballot is the best tool to express public opinion. One’s opinions can be expressed in a civilised, rational and peaceful manner by way of voting. People speak their minds by casting their ballots. It is difficult to have democracy without voting. There are of course other means to express opinions other than by voting, for example, to exercise the freedom of speech, freedom of publication, freedom of assembly or freedom of petition. However, in general, there would be relatively fewer people expressing their political views by these methods.

Q: What are the advantages for the people to have the right to elect the Chief Executive?

A: An elected leader has to be responsible to and monitored by those who have elected him/her. If the Chief Executive is elected by all Hong Kong people directly (not elected by 1,200 persons), that Chief Executive has to be responsible and accountable to all Hong Kong people. ‘Those who have a vote are the boss’. People who have the right to vote (the public) and the person being elected (the Chief Executive) have a master and servant relationship. In an universal suffrage with two or more candidates, each candidate has to make the best efforts to put forward a political platform that can move the voters, thereby to obtain their votes (which is called “baipiao” (拜票，or ‘solicit votes’) in Taiwan). From the people’s perspective, this is a kind of ‘benign’ (‘productive’ or ‘positive’) competition. Since the majority of voters in Hong Kong come from the grass root or the middle class, the political platforms suggested by the candidates in an universal suffrage election are likely to be more beneficial to the grass root and middle class people compared to those who are going to be elected by 1,200 persons. A Chief Executive who has gone through the ‘baptism’ of universal suffrage will very likely be more sensitive to public sentiments and acquainted with people’s needs.

Q: Why do the pan-democrats strongly oppose the political reform proposal?

A: We may use grades A, B and C (A is the best, C is the worst, B is somewhere in between) to illustrate the crux of the proposal. The existing Chief Executive election method (which has always been criticised by the pan-democrats as a ‘small circle election’) is a class C political system. What the pan-democrats are fighting for is a class A political system (in compliance with the ‘international standards’ for universal suffrage; no ‘unreasonable restrictions’ on the right to stand for election; and a ‘true universal suffrage’ without ‘screening’). For this political reform proposal, we could say it is a class B political system (see diagram).

Credit: Ming Pao

    Some pan-democrats object to B because they see it as worse than C. Some believe that B is better than C, but still they cannot accept it, because ‘to pocket it first means to pocket it forever’. They believe that if B is adopted, there will never be a chance to fight for A.

     My opinion is that B is better than C. It is more democratic. We may first ‘upgrade’ the political system from C to B, after that the pan-democrats may move forward in fighting for A (including universal suffrage for all seats in LegCo and a more democratically constituted Nominating Committee for the Chief Executive election).

     Either from the viewpoint of human history or by taking into account the political reality of ‘One Country Two Systems’, this kind of progressive democratisation is more feasible than jumping from C to A directly. On the other hand, if the pan-democrats reject B (which is now within reach) and insist on going after the distant A, the outcome will be all Hong Kong people will have to tolerate C for an indefinite period of time, to tolerate a system which the pan-democrats have criticised and described as an extremely un-democratic political system. The price for the pan-democrats going after their dreams is to be paid by all people in Hong Kong. Would that be too costly? The price we have to pay may include these: the government continues to function in difficulties; the LegCo continues to be paralysed by filibuster; the political situation remains deadlocked and in chaos; Hong Kong continues to be stagnant in its economic and social developments. Hong Kon’s prosperity may eventually to be dragged down by the disputes arising from political reform, universal suffrage and the August 31st decision.

Q: Why do some pro-democrats think B is worse than C?

A: Their usual arguments are as follows: (1) The candidate chosen by the Nominating Committee in accordance with B will be ‘rotten oranges, rotten apples’. They will not be welcomed by the public; (2) Voters could only vote like ‘voting machine’. Voters are to clothe the ‘pre-selected’ candidate with ‘pseudo-legitimacy’. This is a ‘fake universal suffrage’. My opinion is: (1) is jumping to an arbitrary conclusion. It is still uncertain as to how the Nominating Committee will function. Why do the pan-democrats predict that the worst scenario will materialise? Why do they exclude all good possibilities at the very beginning, that is, delicious apples and oranges are available to be chosen? Why don’t they give it a try and give the Nominating Committee a chance? As regards (2), according to my understanding, the reason for the ‘high threshold’ settings is not designed to facilitate the Central Government in determining who will be the Chief Executive. Instead, it is designed to reduce the chance of allowing people whom the Central Government is unwilling to appoint as the Chief Executive (i.e. those considered to be “non-patriots” and “controntational towards” the Central Government) to be nominated. Subject to this pre-requisite, the Nominating Committee is allowed and encouraged to nominate two to three candidates freely by way of anonymous votes. Thus the Chief Executive who is ultimately elected will be one who is trusted by the Central Government and supported by the Hong Kong people at the same time. I do not agree with the opinion about ‘covering the candidate with pseudo-legitimacy’. This statement implies disrespect for the voters. Hong Kong is unlike North Korea (which some pan-democrats often mention by way of analogy). Hong Kong is a free and open society. The public can understand all candidates thoroughly and decide freely on whether to vote for a specific candidate, to cast a blank vote or not to vote. How many voters’ hearts have been won over by the Chief Executive will be reflected by the election outcome. This is an outcome that reflects Hong Kong citizen’s true and freely expressed opinion, a ‘genuine public opinion’ (it does not matter whether the universal suffrage is described as ‘true’ or ‘fake’).

Q: The pan-democrats believe that as delegates, they only need to vote in accordance with their political belief and conscience. They need not be affected by the majority public opinion. Do you agree?

A: The election of the Chief Executive by one person one vote is a fundamental civil right as well as a human right. This cannot be deprived of unreasonably. The human rights of the minority cannot be taken away by the majority. It is even worse if the human rights of the majority are taken away by the minority (or the LegCo members who represent their voices). Some public opinion polls show that about half of the interviewees are hoping to elect the Chief Executive in 2017 according to the proposal suggested by the Government. This amounts to about 2.5 million people (using 5 million eligible voters as the base for calculation). There are 27 pan-democratic LegCo members. If they veto the political reform proposal, each of them, on the average, will be striking down the voting rights of over 90,000 voters. Are they thus acting in accordance with the principle of human rights and democracy? Actually, those who oppose the political reform proposal may, at the time of the Chief Executive election by universal suffrage, choose not to vote or cast a blank ballot to show their dissatisfaction with the Chief Executive election system. The pan-democrats should not take away the sacred votes from the hands of millions of voters who want to cast their vote in a Chief Executive election (given that we are now just one step away from such a Chief Executive election).

Q: Apart from the right to vote, is the right to be elected a fundamental civic right?

A: Yes. The Central Government has set a high nomination threshold to restrict the right to be a candidate because it insists that the Chief Executive must be a ‘patriot’ who ‘loves China and loves Hong Kong’. The pan-democrats oppose the political reform proposal by sacrificing the people’s right to vote. This is the difficult situation that Hong Kong's democratic development is facing under One Country Two Systems.

     Translated by Jessica Wu. The original article was published in Ming Pao on 12 May 2015 (in Chinese), reprinted in speakout.hk.