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
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