• Fri
  • Dec 19, 2014
  • Updated: 6:28pm
Universal Suffrage
CommentInsight & Opinion

Beijing has failed to honour its promise to Hong Kong

Michael Davis says the pan-democrats have every reason to reject any political reform proposal based on a Standing Committee decision that clearly violates the Basic Law

PUBLISHED : Wednesday, 03 September, 2014, 6:03pm
UPDATED : Thursday, 04 September, 2014, 4:51am

Beijing's decision on universal suffrage marks a dark day in Hong Kong history. The shortcutting of its firm commitments in the Sino-British Joint Declaration and the Basic Law signals a broken trust. Both sides have long struggled in their arranged marriage, agreed on in the Joint Declaration and sanctified in the solemn vows of the Basic Law.

By requiring a majority vote in a highly unrepresentative 1,200-member pro-Beijing nominating committee, the central government is effectively blocking candidates from the more popular pan-democratic camp. Any token legislative manipulation in the make-up of that committee will not avoid this failing. A limit of two or three nominees further secures this unfortunate blockage of the voters' free choice.

In the recent white paper, Beijing effectively disavowed its international legal commitments in the 1984 Sino-British treaty by claiming that the 12 articles of the Joint Declaration were merely 12 principles crafted by China before the declaration. Along with exclusive authorship, Beijing claims exclusive authority.

Accordingly, Beijing argues that the Basic Law can now be interpreted or amended as it prefers, presumably without constraint. Beijing has long claimed such a power in principle but the legal constraint in using such power is now little evident.

In Sunday's decision, the central government took full advantage of this claimed authority, giving the Basic Law's solemn commitment to universal suffrage an interpretation nobody but Beijing and its supporters would recognise. It is unfortunate that neither Hong Kong officials nor the anointed Hong Kong National People's Congress delegates who attended the Standing Committee proceedings adequately represented Hong Kong concerns. Their practice has been to lecture Hong Kong on Beijing's concerns.

The liberty of interpretation Beijing claims not only denies Hong Kong its promised universal suffrage, but also puts in doubt the city's greatly cherished rule of law. Such wide official discretion on such fundamental human rights matters cannot be consistent with the rule of law.

The rule of law as a principle holds that nobody is above the law and everyone is subject to the law applied in the ordinary manner before the ordinary courts. When officials are able to grant or withhold basic electoral rights at their discretion, that is not consistent with this standard.

Beijing and Hong Kong officials claim that there are no international standards for conducting the universal suffrage required under the Basic Law. This ignores the clear language of the Basic Law and its fundamental purpose. It further raises questions about honesty that impinge on popular trust.

The universal suffrage promised in Article 45 already imbeds international standards in the words themselves. There is no understanding of these words that would legitimate an election that denies voters a free choice of candidates.

China's own interest cannot be well served by imposing such limitations on elections in Hong Kong. This engenders the strong opposition to which Beijing objects. Hong Kong people and the world at large will have no trust in a government formed in such a high-handed manner under the pretence of universal suffrage. The present autocratic system may be better than legitimating fake democracy.

Beyond the ordinary meaning of such words, the Basic Law provides a much deeper commitment to international standards by its firm commitment to the International Covenant on Civil and Political Rights. Article 39 of the Basic Law, as long interpreted by the courts, renders invalid any restriction on human rights in violation of that covenant.

Article 25 of the covenant provides every citizen the right "to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage … guaranteeing the free expression of the will of the electors". Article 26 of the Basic Law echoes this by guaranteeing permanent residents "the right to vote and the right to stand for election in accordance with law". Such law includes the non-discrimination and free speech guarantees in the Basic Law.

The UN Human Rights Committee charged with interpreting the covenant's language has stressed that "persons entitled to vote have a free choice of candidates". Emphasising non-discrimination, the committee stresses that people should not be excluded, among other things, for "political affiliation".

The only defence the government embarrassingly offers is to invoke a 40-year-old British colonial reservation to the covenant. The Human Rights Committee has rejected this, emphasising that once democracy is established, it should conform to these requirements.

Even more compelling than the language of the Basic Law is a common sense reflection on what "one country, two systems" is fundamentally about. Its primary mission clearly had to be the handover and preservation of Hong Kong and any advantages the drafters of the Joint Declaration and the Basic Law sought to achieve in maintaining Hong Kong as a distinct system. The success of that mission depends on confidence in Hong Kong's promised "high degree of autonomy".

As Deng Xiaoping put it, the aim was for Hong Kong people to "put their hearts at ease". The agreement was taken to the capitals of the world in the same spirit. This understanding is neither subversive nor a "lopsided view" as expressed in the white paper. "One country, two systems" only makes sense on this understanding. Claiming Beijing is the boss and can do what it wants does not advance these objectives.

The argument over patriotism is a red herring. The Oaths and Declarations Ordinance requires all prominent officials, including the chief executive, Executive Council members, legislators and judges to swear to uphold the Basic Law and "bear allegiance" to the Hong Kong SAR.

Some people worry that a big protest or passionate support for Occupy Central will bring disorder and tragedy to Hong Kong. The opposite may be true. Only a few people showing up to demand democracy will signal that Hong Kong people are giving up on Beijing's promises. Either way, the democrats in the Legislative Council have no reason to support a bill under these constraints.

Professor Michael C. Davis, of the University of Hong Kong, specialises in constitutional law and human rights


Related topics

For unlimited access to:

SCMP.com SCMP Tablet Edition SCMP Mobile Edition 10-year news archive



This article is now closed to comments

The CCP breaking a contract and doing things "their way". That's news.
Contractual obligations: Silly western notion along with human rights, law and the enlightenment.
Luckily HK people, either for or against the CCP, know the real face of the CCP and can rest easy with the knowledge that the HK way of life will go downhill at a faster clip after this.
Failed to honor ? They never intended to. Look into the history how the Chinese communist behaved, read what they said when they were in the Opposition, their words are well documented. They lied in the past, they lie now, and they will lie in the future. It is clear that the Hong Kong people will not get democracy as long as the CCP is in power.
The first principle of any good Party member works like this: do not let words be constrained by facts; craft the message, ignore the facts; make a loud enough noise about it and facts will fade into insignificance and the fiction in the message ultimately becomes fact. The CCP have ruled on this principle since 1949 and know no truer way.
I think Michael C. Davis doth profess too much! Perhaps he has forgotten to read the Basic Law himself, for his seemingly jaundiced view and incorrect interpretation is more to the intelligence of Sholarism, who similarly fail to interpret the document as a whole, but rather choose to incorrectly interpret paragraphs to suit their own ends! China has adhered to every word within the Joint Declaration, the key word here being 'joint', words that were agreed by the British as they handed Hong Kong back to China - there is no point in crying about it now, the time to have acted has passed; Hong Kong is merely a city within a country called China, the capital of which is Beijing. People may not like it, but the reality is that any country exercises control over its cities; if that country is not a democracy, then how can one small city demand it? Even with a Chief Executive voted in by universal suffrage, his/her power will always be curtailed by the Leader of the Nation; do you think the Mayor of New York tells the President of the United States what to do! It is time for Hong Kong to focus on what makes us great, not the petulance of a few who are ruining the city for the many...
Yes, and the Brits, Portuguese, French, and Spaniards were known to attack others and colonized their lands. The Americans were known to be racists, practiced slavery, and stole from the Indians. The Aussies were criminals.....Your logic is total rubbish.
Please read more and do travel extensively, not for shopping, but observe.
Racism does not have to be white against colored.
These countries you accused happen to embrace multi-culture. What about our China, huh? Think. Think again. They don't even let me be a Chinese national. Have you ever wondered why the HK privileged could? They discriminate their own race!
Have you noticed how our citizens treat the Philippines and other South Asians on the streets of Hong Kong?
Please tour West Africa and see how the Chinese treat the poor local negroes. It is imperative that China build a stronghold there since Africa is the remaining land with enormous resources which China needs. But our comrades have displayed despicable behavior in countries like ****ia, Benin, Cameroon, Angola etc. out of simple prejudice.
I hope you understand that ignorance & prejudice breeds racism.
Have you ever wondered why you can only see white people adopting colored kids and how many Chinese you see adopted kids of any color?
Please. Try to observe before you make cliché generalizations.

This is a very devious article and full of rubbish. Article 25 has NOTHING to do with how the CE is chosen.
Everyone should read the Basic Law. Its not very long, and it is written in very clear language. The Pan-Democrats may not like the Basic Law, or the hand they have been dealt, but read Articles 43, 45, 158 and in particular, Annex 1. Its all VERY clear. China is following the Basic Law to the letter.
@" Beijing has failed to honour its promise to Hong Kong"
So Professor Davis, what about Article 23 on Security legislation?
Why not headline your rebel-rousing piece "Hong Kong has failed to honour its promise to Beijing?
Go back to your air-conditioned office and read "Constitutional Law for Dummies".
Can the eminent law professor cite any actual statements in the Joint Declaration and Basic Law that demonstrated China's promise to implement the kind of universal suffrage that he so envisage? I would expect more from people of the academic field compared to journalists.
It's interesting some mentioned China is following some laws, in a country where it's man-rule...


SCMP.com Account