The Basic Law was drafted as part of the Sino-British Joint Declaration covering Hong Kong after its handover to China on July 1, 1997. The joint declaration stated that Hong Kong would be governed under the principle of ‘one country-two systems’ and would continue to enjoy its capitalist system and individual freedoms for 50 years after the handover.
Hong Kong government must not blindly follow electoral 'instructions'
Michael C. Davis says mainland official's guidelines have no basis in Basic Law and must be resisted
It has become increasingly apparent that Hong Kong needs to find its voice on the road to universal suffrage or risk a calamitous imposition of an undemocratic model by Beijing.
It became clear, during the weekend visit of Li Fei, the chairman of the Basic Law Committee, that the mainland is bent on seizing control over electoral reform in ways that may go well beyond Basic Law requirements.
The chairman of the Basic Law Committee actually has no formal individual role under the Basic Law in changing the method of electing the chief executive. The Basic Law Committee's role is limited to advice on interpretation. This may, however, be overlooked by government supporters in the flurry to read Beijing's intentions.
Hong Kong faces a crisis of confidence in choosing a path to democracy.
If the government follows its pattern, it will view the guidelines offered by Li as its "instructions" going forward. Most of these reported instructions have no basis in the Basic Law text.
This would not be a problem if the government had the tradition of proactively defending Hong Kong's autonomy in respect of constitutional development. But it does not.
Li's instructions include the noted dilemma: the challenge of combining the Basic Law's requirement that any Hong Kong resident of Chinese nationality of suitable age be entitled to run for chief executive, with the Chinese government specification that the chief executive "love Hong Kong and love China".
If the latter merely requires that the winner take the oath of office and not break the law, as is commonly required around the world, there should be no problem. On the other hand, if it signals a vetting of candidates to eliminate those who have exercised their freedom of expression to criticise government policies, as characterises most democrats, then it risks undermining the entire election and the legitimacy of any winner.
Li also dismissed public nominations, noting the Basic Law requirement of nomination by a nominating committee. The Basic Law specifies the ultimate aim as universal suffrage "upon nomination by a broadly representative nominating committee in accordance with democratic procedures". It allows for changing the method of selection of the chief executive by a vote of two-thirds of the Legislative Council with the consent of the chief executive and approval of the National People's Congress Standing Committee.
If the government steps up and defends Hong Kong in this area, there should be room for compromise to follow the Basic Law nominating process and yet allow a more inclusive public role. It is probably not wise to attempt to amend the Basic Law, since there is little chance of the Standing Committee agreeing to a more democratic process. However, there is nothing in the Basic Law that would prohibit a public consultative component. This might allow for candidates, with a sufficient number of public signatures to be assured a place on the ballot.
The other questionable "instructions" offered by Li have no basis in the Basic Law text, including the one suggesting the nominating committee be formed like the current Election Committee. Hong Kong people well know that the Election Committee has never been broadly representative.
Li further specified that there be a limit on the number of nominees. If an unrepresentative nominating committee is to achieve that limit, even by some "democratic procedure" such as a popular vote within the nominating committee, this would amount to full vetting of candidates. Democrats have never had the votes to win under the make-up of the existing Election Committee.
There is no provision in the Basic Law limiting the number of nominees for chief executive. A fairer approach would be to include all serious candidates that can meet a nominating threshold and simply have a run-off election between the highest two vote-getters if no single candidate won at least half of the public vote.
These "instructions" clearly signal an effort to deny universal suffrage and manage the outcome of this process. That the government will probably view these indications as its marching orders surely predicts public opposition and protests. There is no reason for democrats to embrace a model that would effectively bar them from office.
Some pro-Beijing politicians will argue that Beijing cannot possibly accept a truly democratic election in Hong Kong. This shows little confidence in either Hong Kong or Beijing. Hong Kong people will surely select candidates who can most effectively represent their interest, and whoever is elected will want to do just that.
Confrontation with Beijing will not be a priority. The question now is whether the Hong Kong government will carry out its role to assist both Hong Kong and Beijing to reach a sensible outcome that can garner public support.
Professor Michael C. Davis is a constitutional law scholar on the University of Hong Kong Law Faculty