The Law and Politics of the Struggle for Universal Suffrage in Hong Kong, 2013–15

Abstract

Post-1997 Hong Kong under the constitutional framework of “One Country Two Systems” has a political system that may be characterized as a “semi-democracy.” Hong Kong’s constitutional instrument—the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China—provides that the ultimate goal of the evolution of Hong Kong’s political system is the election of its Chief Executive by universal suffrage. Since 2003, a democracy movement has developed in Hong Kong that campaigned for the speedy introduction of such universal suffrage. In 2007, the Chinese government announced that universal suffrage for the election of the Chief Executive of Hong Kong may be introduced in 2017. In 2014, the Chinese government announced further details of the electoral model. The model was rejected by Hong Kong’s Legislative Council in 2015, with the result that the election of the Chief Executive in 2017 would not materialize. This article seeks to tell this story of Hong Kong’s quest for democratization, focusing particularly on the context and background of the “Occupy Central” Movement that emerged in 2013 and its aftermath. It suggests that the struggle for universal suffrage in the election of Hong Kong’s Chief Executive in 2017 and the obstacles it faced reveal the underlying tensions behind, and the contradictions inherent in, the concept and practice of “One Country, Two Systems,” 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 “pan-democrats” and their supporters in Hong Kong.

1. INTRODUCTION

Since 1997, the former British colony of Hong Kong has enjoyed autonomy as a “Special Administrative Region” (SAR) of the People’s Republic of China (PRC) under a constitutional arrangement known as “One Country, Two Systems” (OCTS). OCTS was first stipulated in the Sino-British Joint Declaration, a treaty signed in 1984 whereby Britain agreed to return Hong Kong to China in 1997. The Hong Kong Basic Law enacted by the Chinese National People’s Congress (NPC) in 1990, often known as Hong Kong’s “mini-constitution,” constitutionalizes OCTS, grants to the Hong Kong SAR (HKSAR) a “high degree of autonomy,” and provides for the progressive democratization of Hong Kong.

The political system that has existed in post-1997 Hong Kong has been described as a “semi-democracy.”¹ The Basic Law itself stipulates that the ultimate destination of the evolution of Hong Kong’s political system is the election of the Chief Executive of the Hong Kong SAR and of all members of its Legislative Council (LegCo) by universal suffrage.² However, this is “a democracy that might never come.”³ As one scholar put it, “(a)n authoritarian regime which has pre-committed itself to democracy is an inherently unstable regime, because it will be taken to task to deliver.”⁴ Since 2003, a democracy movement has developed in Hong Kong that campaigned for the speedy introduction of universal suffrage. In response, the Chinese government announced in 2007 that universal suffrage for the election of the Chief Executive may be introduced in 2017.⁵

On 31 August 2014, the NPC Standing Committee made a decision stipulating the model for the election of the Chief Executive of the Hong Kong SAR in 2017.⁶ It provided for universal suffrage but also introduced an elaborate procedure for the nomination or screening of candidates. Pro-democracy politicians (the “pan-democrats”⁷) and activists immediately condemned the decision as failing to meet international standards on genuine universal suffrage,⁸ as they believed that only persons approved or considered acceptable by the Chinese government would be nominated as candidates under the electoral model stipulated in the decision. Popular protest against this decision soon escalated and turned into the occupation—known as the “Occupy Central” or “Umbrella Movement” (or “Umbrella Revolution”)—of central business and government districts in Hong Kong by thousands of demonstrators for as long as 79 days.⁹

Under the Basic Law,¹⁰ any constitutional reform such as the introduction of election of the Chief Executive by universal suffrage can only be adopted by a two-thirds majority vote in the Hong Kong legislature, in which the “pan-democrats” have for many years and up to now occupied more than one-third of the seats. The electoral model proposed by the Hong Kong government on the basis of the NPC Standing Committee’s decision was finally vetoed by the Hong Kong Legislative Council in June 2015.¹¹

The struggle for the realization of universal suffrage in the election of the Chief Executive in Hong Kong in 2017 provides a good case-study of constitutional politics in a subnational political community exercising autonomy and seeking to introduce constitutional reform and democratization. It is also particularly interesting because Hong Kong is an SAR of China, still ruled by the Communist Party, while the aspirations of Hong Kong’s democracy movement are towards Western-style liberal constitutional democracy. This article seeks to tell this story of Hong Kong’s quest for democratization, focusing particularly on the context and background of the “Occupy Central” Movement and its aftermath. It suggests that the struggle for universal suffrage in the election of the Chief Executive of the Hong Kong SAR in 2017 and the obstacles it has faced reveal the underlying tensions behind, and the contradictions inherent in, the concept and practice of “OCTS,” 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 pan-democrats and their supporters in Hong Kong.

This article consists of the following parts, apart from this Introduction (Part 1). Part 2 describes the relevant developments in Hong Kong since early 2013,¹² when a social movement known as the “Occupy Central” campaign developed to struggle for the realization in 2017 of genuine universal suffrage in the election of the Chief Executive of the Hong Kong SAR. It will focus particularly on the positions of the democracy activists in Hong Kong, as well as the stance of the central government in Beijing. Part 3 provides a commentary on the political considerations and dynamics behind this episode of Hong Kong’s attempted political reform. Finally, Part 4 analyses the possible pathways of Hong Kong’s constitutional development, employing a model developed by the political scientist Robert Dahl. It concludes by reflecting on the prospects for Hong Kong’s democratization under “OCTS” in light of the NPC Standing Committee’s decision of 31 August 2014.

2. THE “OCCUPY CENTRAL MOVEMENT” AND ITS AFTERMATH

The goals of pro-democracy politicians and activists in Hong Kong are to realize in the Hong Kong SAR what they called “double universal suffrage” (雙普選)—the election of the Chief Executive and of all members of the Legislative Council by universal suffrage.¹³ In response to popular demand in Hong Kong for democratization, the National People’s Congress Standing Committee (NPCSC) had in December 2007 set the timetable for the realization of these goals: the Chief Executive may be elected by universal suffrage in 2017, and thereafter the whole of the LegCo may also be so elected.¹⁴ However, the precise model for such elections had not been elaborated in the NPCSC’s decision of 2007.

Indeed, some of the most controversial issues regarding Hong Kong’s constitutional development had remained unresolved after the NPCSC Decision of 2007. In particular, since Article 45 of the Basic Law provides that candidates for election of the Chief Executive by universal suffrage have to be nominated by “a broadly representative nominating committee in accordance with democratic procedures,” there were concerns about whether the universal suffrage promised with regard to the election of the Chief Executive in 2017 is genuine or “fake” universal suffrage: pan-democrats were concerned that the “nomination threshold” and the “screening mechanism” for candidates for the Chief Executive in the context of the operation of the nominating committee would be such that only “pro-China” or “pro-Establishment” politicians (as opposed to the pan-democrats) would get nominated by the nominating committee. Furthermore, there were concerns as to whether the universal suffrage for the election of all legislators promised by the NPCSC Decision of 2007 would be accompanied by the abolition of functional constituencies, which is a major goal that pan-democrats have fought for.¹⁵ These constituencies include, among others, certain professions and business sectors which are guaranteed representation.

It was expected that, a few years before 2017, the precise electoral model for the election of the Chief Executive by universal suffrage in 2017 would be worked out. Pro-democracy political activists in Hong Kong started in early 2013 to prepare for this exercise. A milestone in this regard was the publication on 16 January 2013 of an article¹⁶ by Mr Benny Tai (戴耀廷), associate professor in the law school of the University of Hong Kong, on the idea of an “Occupy Central” campaign to put pressure on the central government and the Hong Kong government to introduce a model for universal suffrage consistent with international human rights standards. The idea was widely circulated on the Internet and received much media attention, snowballing into a real “Occupy Central” campaign supported by many civil society groups and the pro-democracy politicians in Hong Kong.¹⁷ “Occupy Central” in this context refers to demonstrators practicing civil disobedience and occupying the Central District—the central business district of Hong Kong—to paralyze it if the government fails to come up with a model for universal suffrage that complies with international standards on free and fair elections.¹⁸

After months of deliberation, the Occupy Central Movement proposed on 6 May 2014 three models for election of the Chief Executive by universal suffrage for public consideration, all including the element of civic nomination (also known as “public nominations” or “citizens’ nominations,” which are translations of the original Chinese term gongmin timing 公民提名), namely the nomination of candidates by prescribed numbers of citizens. In the week of 22 June 2014, the Occupy Central Movement held a “referendum” at which people could vote by mobile phone, on the Internet, or at voting booths to indicate whether they supported any of the three proposed models, and whether they believed that the Legislative Council should reject any model introduced by the government which was inconsistent with international standards of universal suffrage. More than 700,000 people in Hong Kong participated in the “referendum” and indicated their support for the demands put forward by the Occupy Central Movement.

Another major development in the struggle for democracy was the formation on 21 March 2013 of the Alliance for True Democracy,¹⁹ consisting of all the pan-democrats in the LegCo, all the “pro-democracy” political parties, and some civil society organizations. The objective of the Alliance was to promote the realization of “genuine” universal suffrage in Hong Kong. After months of deliberation, on 8 January 2014, the Alliance proposed a “three-track” model for the election of the Chief Executive by universal suffrage—the three tracks being nominations by citizens (“civic nominations”), by political parties, and by the nominating committee, respectively.

Earlier, on 17 October 2013, Mr C.Y. Leung, the Chief Executive of the HKSAR, announced the establishment of a three-person “Task Force on Constitutional Development,” led by Chief Secretary Mrs Carrie Lam, which would launch a public consultation exercise on the electoral reforms for the LegCo and the Chief Executive to be elected in 2016 and 2017, respectively. The exercise formally commenced on 4 December 2013 with the publication of the Consultation Document on “Let’s Talk and Achieve Universal Suffrage,” initiating a five-month consultation period which ended on 3 May 2014. During the consultation period, many political parties and civil society groups, including those which are “pro-China” and those which are “pro-democracy,” put forward their proposed models for the nomination and election of the Chief Executive in 2017.²⁰ On 15 July 2014, the government released its report on the outcomes of the consultation exercise. On the same day, the Chief Executive, Mr C.Y. Leung, submitted to the NPCSC his “Report on Whether There Is a Need to Amend the Methods for Selecting the Chief Executive of the HKSAR in 2017 and for Forming the Legislative Council of the HKSAR in 2016,”²¹ recommending the introduction of universal suffrage for the election of the Chief Executive in 2017, and recommending no constitutional change regarding the electoral arrangements for the Legislative Council in 2016.

Since March 2013, the central government of the PRC, through various widely publicized speeches of its senior officials and of legal scholars close to the government, made known its stance on and baseline for this exercise in political reform in Hong Kong.²² It was repeatedly said that any model for the election of the Chief Executive must be based on and consistent with the provisions of the Basic Law and the relevant decisions of the NPCSC. In this regard, doubt was cast on whether the mode of “civic nominations” of candidates for the Chief Executive election proposed by the pan-democrats, the Alliance for True Democracy, and the Occupy Central Movement was consistent with the provision on nominations by the nominating committee (“NC”) in Article 45 of the Basic Law.

Central government officials and mainland legal scholars, beginning with Qiao Xiaoyang (喬曉陽) in his important speech to “pro-Establishment” Hong Kong legislators in Shenzhen on 24 March 2013,²³ and continuing with Li Fei’s (李飛) visit to Hong Kong on 21–23 November 2013,²⁴ also pointed out that nominations by the NC under Article 45 of the Basic Law are “institutional nominations” (i.e. nominations by the NC as an institution). These were argued to be an expression of the “collective will” of the committee, and different in nature from the procedure²⁵ of joint nominations by individuals used by the existing election committee for the election of the Chief Executive. It was stressed that the Chief Executive must be a “patriot” who “loves the nation and loves Hong Kong,” and the central government would not appoint as Chief Executive someone who is “confrontational” towards the central government and attempts to change the socialist political system in mainland China. On 6 March 2014, Mr Zhang Dejiang (張德江), Chairman of the NPCSC, said at a meeting with Hong Kong deputies attending the NPC session in Beijing at that time that the design of the model for universal suffrage for the Chief Executive of the HKSAR is a matter that concerns the “sovereignty, security and developmental interests” of the PRC, and that the context for the universal suffrage to be practised in the HKSAR is that of a local election and not a national election—hence the models for national elections in other countries are not necessarily appropriate for Hong Kong. Subsequently, it was elaborated that, if someone who is not a “patriot” becomes the Chief Executive (CE) of the HKSAR, the security interests of the PRC might be prejudiced.

The central government’s position on universal suffrage in the HKSAR was further elaborated when senior officials met with Hong Kong legislators (including some of the pan-democrats) in Shanghai on 13 April 2014,²⁶ and when they met with Hong Kong legislators, Hong Kong deputies to the NPC, Hong Kong members of the Chinese People’s Political Consultative Conference (CPPCC), and other representatives of Hong Kong society in Shenzhen on 21–22 August 2014. The Shenzhen meeting came after the Hong Kong government published its report²⁷ on the consultation exercise in July but before the NPCSC met to consider the report. It was explained that the provision in the Basic Law that candidates for election of the CE by universal suffrage should be nominated by a “broadly representative nominating committee” was well designed for the purpose of minimizing three kinds of “risks” associated with such election: the risk of “political confrontation,” that of “constitutional crisis,” and that of “populism.” “Political confrontation” refers to confrontation between the “two social systems” within “OCTS,” between Hong Kong and the central government, or within Hong Kong society. The NC would ensure that candidates are acceptable to various factions and thus minimize the risk of confrontational politics. As regards “constitutional crisis,” this refers to the scenario of a candidate being elected by universal suffrage who is not considered appointable by Beijing, so that Beijing would refuse to appoint him or her as CE. Finally, as regards “populism,” this refers to failure to ensure that the interests of all social classes (including those of business or capital) are taken care of. The risk of “populism” is said to be minimized as the composition of the NC is based on the principle of balanced representation of various social classes.

Chinese officials also pointed out that the debate on the model for electing the CE by universal suffrage involved not only a question of the design of rules and institutions, but also a political question of whether the principle of “patriots ruling Hong Kong” should be given effect. It was pointed out that some people in Hong Kong would like it to become an “independent political entity” and do not accept the central government’s “plenary power to govern” Hong Kong (quanmian guanzhi quan 全面管治權)²⁸; they use “one system” against the central authority, or even attempt to change the political system in the Chinese mainland. Such people should not be allowed to become the CE of the HKSAR.²⁹

On 31 August 2014, the NPCSC finally rendered its Decision on political reform in the HKSAR.³⁰ It accepted the CE’s recommendation³¹ that no constitutional change regarding the election of the Legislative Council was called for in 2016. On the question of the election of the CE by universal suffrage, the following points in the Decision are particularly noteworthy:

1. 1 “Since the long-term prosperity and stability of Hong Kong and the sovereignty, security and development interests of the country are at stake, there is a need to proceed in a prudent and steady manner.”

2. 2 “The formulation of the method for selecting the Chief Executive by universal suffrage must strictly comply with the relevant provisions of the Hong Kong Basic Law, accord with the principle of ‘one country, two systems’, and befit the legal status of the HKSAR. It must meet the interests of different sectors of the society, achieve balanced participation, be conducive to the development of the capitalist economy, and make gradual and orderly progress in developing a democratic system that suits the actual situation in Hong Kong.”

3. 3 “Since the Chief Executive of the HKSAR shall be accountable to both the HKSAR and the Central People’s Government in accordance with the provisions of the Hong Kong Basic Law, the principle that the Chief Executive has to be a person who loves the country and loves Hong Kong must be upheld. This is a basic requirement of the policy of ‘one country, two systems’. It is determined by the legal status as well as important functions and duties of the Chief Executive, and is called for by the actual need to maintain long-term prosperity and stability of Hong Kong and uphold the sovereignty, security and development interests of the country. The method for selecting the Chief Executive by universal suffrage must provide corresponding institutional safeguards for this purpose.”

4. 4 The CE of the HKSAR may be elected by universal suffrage “starting from 2017.”

5. 5 As regards the “number of members, composition and formation method” of the “broadly representative nominating committee” that nominates candidates for the CE, provisions “shall be made in accordance with the number of members, composition and formation method of the Election Committee for the Fourth Chief Executive.”

6. 6 “The nominating committee shall nominate two to three candidates for the office of the Chief Executive in accordance with democratic procedures. Each candidate must have the endorsement of more than half of all the members of the nominating committee.”

On 1 September 2014—the day following the NPCSC decision—senior Chinese officials visited Hong Kong and made important speeches to explain the Decision to members of the public and to Hong Kong government officials. They reiterated many of the points previously made as set out above. It was further pointed out that the model for universal suffrage prescribed by the Decision provides the institutional guarantee that the CE elected by universal suffrage in future would be someone who is both trusted by the central government and supported by the people of Hong Kong, and that non-patriots or those confrontational towards the central government could not become the CE. Mr Li Fei³² said that the question of the model for universal suffrage in Hong Kong involves “a struggle for the power to govern the HKSAR”—some people in Hong Kong are:

... unwilling to accept the fact that the PRC has resumed the exercise of sovereignty over Hong Kong, and are unwilling to accept the governing power of the central authority over Hong Kong; they adopt an “alternative interpretation” of “One Country, Two Systems” and the provisions of the Basic Law; they make use of foreign forces, continuously stir up political disputes, pointing their fingers at the central government, and attempt to turn Hong Kong into an independent political entity. On the issue of universal suffrage, their views and demands may be summarized in one sentence: let their representative become the Chief Executive. This, of course, cannot be permitted. If they are allowed to become the Chief Executive, this would necessarily prejudice the central government’s governing power over the HKSAR, prejudice our country’s sovereignty, security and developmental interests, and damage the stability and prosperity of Hong Kong …. If we understand the political nature of the question of universal suffrage, we can see that the question involves matters of fundamental principles on which there can be no compromise. … Those who insist on being confrontational towards the central government cannot be the Chief Executive, whether in the past, present or future.³³

The Decision of the NPCSC was met by strong protests from pro-democracy forces in Hong Kong, which launched the “Umbrella Movement” (also known as the “Occupy Central Movement”) that started in late September and continued until mid-December 2014, resulting in the occupation by demonstrators of central business and government districts in Admiralty, Causeway Bay, and Mongkok. On 6 January 2015, after the occupation came to a peaceful end, the government, in pursuance of a promise made at a televised meeting with student leaders during the occupation campaign, submitted to the Hong Kong and Macau Affairs Office of the State Council a “Report on the Recent Community and Political Situation in Hong Kong,”³⁴ which was intended to reflect to Beijing the views of the Hong Kong community on the controversial issues of universal suffrage.

On 7 January 2015, the government launched the “second round consultation” on political reform by publishing the consultation document entitled “2017 Seize the Opportunity: Method for Selecting the Chief Executive by Universal Suffrage Consultation Document,”³⁵ for the purpose of consulting the public on the concrete model for electing the CE in 2017, which was to be formulated on the basis of the parameters set by the NPCSC Decision. The pan-democrats boycotted the consultation exercise, stating that they would reject any electoral model that conformed to the parameters set by the NPCSC Decision.³⁶

On 22 April 2015, the government published a policy document entitled “2017 Make It Happen! Method for Selecting the Chief Executive by Universal Suffrage: Consultation Report and Proposals,”³⁷ proposing a concrete model for nominating candidates for and electing the CE in 2017, including proposed amendments to Annex I to the Basic Law (on the method for electing the CE). The model included some details that were not in the NPCSC Decision itself. For example, there would be a “two-stage process” of nominating candidates for the CE election. In stage one, no fewer than 120 and not more than 240 members of the 1,200-member NC could jointly recommend potential candidates, who could then campaign and compete for support before stage two. In stage two, members of the NC would vote on whether they support each of the potential candidates. Each NC member would vote for at least two and at most “n” potential candidates (“n” being the total number of potential candidates who emerged in stage one). In this way, two or three candidates for the CE election by universal suffrage would be produced, each having obtained the supporting votes of more than half of the NC members. The proposed model was subsequently introduced in the Legislative Council and put to a vote on 18 June 2015. With 28 (including 27 “pan-democrats”) of the 70 members of the Council voting against the proposal, it failed to secure the requisite two-thirds majority for amendment of Annex I to the Basic Law.³⁸ The veto meant that the existing system of the election of the CE by a 1,200-member election committee would continue in force in the foreseeable future.

3. COMMENTARY ON THE POSITIONS OF BEIJING AND THE PAN-DEMOCRATS

There were some key differences between Beijing’s position on universal suffrage for Hong Kong’s CE and that of the pan-democrats. Beijing would like to ensure that the candidates for election by universal suffrage to the office of the CE are all acceptable, trustworthy, and appointable from Beijing’s point of view, in the sense that they are not “confrontational” towards the central government or ideologically opposed to the “socialist political system” being practised in mainland China. The system of nominations of candidates by a NC as provided for in Article 45 of the Basic Law enables this objective to be achieved if the majority of the members of the NC are “pro-China” or “patriots,” and if the nominations the committee makes are “institutional nominations” expressing the majority will of members of the committee. Thus, the 2014 Decision of the NPCSC requires the size and composition of the NC to follow closely that of the pre-existing election committee for the CE. The political reality has been that, with the four-sector composition of the election committee and its members being largely elected by functional constituencies, the majority of its members were indeed “pro-China” or “pro-Establishment,” and those who were pan-democrats or sympathetic to them only constituted a minority (slightly more than one-eighth) in the election committee.

On the other hand, the pan-democrats were firmly opposed to any “screening” to be performed by the NC for the purpose of preventing persons who have considerable public support among Hong Kong voters (such as leading members of the pan-democrats) but are not “patriots” in Beijing’s eyes from becoming candidates for election by universal suffrage to the office of the CE. In their view, this would be “fake” universal suffrage and inconsistent with international standards of universal suffrage and democracy which prohibit unreasonable restrictions on the right to be a candidate in an election. “Genuine” universal suffrage, in their view, requires a truly competitive election in which candidates with different platforms and political opinions may freely and fairly compete for votes. Given that the pan-democrats have always obtained a majority of the popular votes for LegCo seats that were elected by universal suffrage (as distinguished from seats elected by functional constituencies), they believed that any nomination system for the election of the CE by universal suffrage which makes it impossible for their leaders to be nominated as candidates would not be genuine universal suffrage. Hence the pan-democrats and their supporters condemned the model for universal suffrage stipulated in the NPCSC Decision, boycotted the government’s “second round” of consultation regarding more detailed arrangements for universal suffrage, and ultimately voted in LegCo to veto the constitutional reform proposal.

3.1 Further Analysis

In the struggle over the model of universal suffrage to be introduced in Hong Kong in 2017, the key players were the central government on the one hand and the pan-democrats and their supporters (including the Occupy Central Movement) on the other hand; the HKSAR government and the pro-China/pro-Establishment political forces in Hong Kong largely followed the line taken by the central government. The single most crucial issue in the debate on the issue of universal suffrage for the election of the CE was whether the “nomination threshold” in the operation of the NC would be low enough for at least one leader of the pan-democrats to be a candidate in the election.

In the existing system for election of the CE by the election committee under Annex I to the Basic Law, a candidate may be nominated jointly by at least one-eighth of the members of the election committee, followed by election by members of the election committee. In the CE elections of 2007 and 2012, persons supporting or sympathetic to the pan-democrats won more than one-eighth of the seats in the elections to the election committee, and thus Alan Leong (of the Civic Party) was one of two candidates in 2007 and Albert Ho (of the Democratic Party) was one of three candidates in 2012. In the course of the election campaigns before the 2012 election, the pan-democrats sought assurances from the candidates that they would ensure that the nomination threshold for election of the CE by universal suffrage in 2017 would not be higher than the existing threshold used by the election committee.³⁹ This was understandable because, if the nomination threshold was not raised, and assuming that the composition of the future NC would be no less favourable to the pan-democrats than the existing election committee, then a leader of the pan-democrats would likely be able to stand as a candidate in the 2017 election by universal suffrage.

During the debate in 2013–14 on the nomination system for election of the CE by universal suffrage in 2017, the principal demand of the pan-democrats was civic nomination, although there were proposals from pro-democracy scholars considered to be “moderate” (and also a proposal from Ronny Tong,⁴⁰ a legislator who was also a member of the Civic Party) that did not insist on civic nomination but advocated a relatively low threshold for nomination by a nomination committee (such as one-eighth of its members being able to nominate a candidate) which should be more democratically constituted than the existing election committee. The pan-democrats considered civic nomination to be more consistent with democracy and free election than nominations by a NC that is not elected by universal suffrage, as civic nomination would allow everyone who has the requisite degree of popular support (say tens of thousands of eligible voters) to participate as a candidate in the election. Strategically, the demand for civic nomination was probably intended to counteract the idea of “institutional nomination” announced by Qiao Xiaoyang on 24 March 2013⁴¹: relying on the difference in wording between (1) the relevant provision on joint nominations by individual members of the election committee in Annex I to the Basic Law and (2) the provision in Article 45 of the Basic Law on the making of nominations by the NC in accordance with democratic procedures, Qiao argued that the NC collectively as an institution or organ should make the nominations, and “democratic procedures” imply that the minority should defer to the majority. Qiao’s idea of institutional nomination thus raised the prospect of a high nomination threshold in the operation of the NC. Given this context, the pan-democrats seemed to believe that the idea of civic nomination might be used to bypass the “screening effect” of a high nomination threshold within the NC.

It was possible and indeed probable that insistence on civic nomination was, for most of the pan-democrats, only a high “asking price” in the bargaining process, and that they would be willing to accept a final package that included a low nomination threshold (not higher than one-eighth of the members of the NC) and a NC with a voter base significantly larger than the existing election committee. In retrospect, one might wonder whether the NPCSC could have made a decision that was more palatable to the pan-democrats if the latter had not invested most of their efforts in civic nomination—which the central government considered to be clearly outside what is permissible under the Basic Law—and if no one had resorted to the threat of “Occupy Central.” There is no doubt that the pan-democrats’ actions were by no means conducive to the building of trust between themselves and the central government, and foreclosed any possibility of genuine dialogue regarding, for example, what compromise solution might be viable to ensure that persons considered unacceptable and not appointable by Beijing would not become candidates for or would not be appointed as CE. However, it is impossible and futile to speculate on what might have happened had the pan-democrats chosen to adopt a less “confrontational” or more conciliatory approach in dealing with the central government.⁴²

In both the text of the NPCSC Decision of August 2014 and the speeches given by Chinese officials, it was pointed out that the model of universal suffrage prescribed by the Decision provides the institutional guarantee to ensure that only a patriot would become the CE. At the same time, Chinese officials argued that the nomination system stipulated by the Decision does not create unreasonable restrictions on opportunities to become candidates in the election: persons from different political parties or groups can equally compete for the support of the majority of the members of the NC, who are largely elected from the four major sectors of Hong Kong society. There is thus an apparent contradiction between the “patriot” requirement and the alleged principle of fair and equal competition. The answer would seem to lie in the historical and political reality that the manner in which the existing election committee is constituted (which, according to the NPCSC Decision, is also the manner in which the NC would be constituted) has in practice secured a majority of “patriots” in the committee. Thus institutional nomination by a majority of the members of the NC would ensure that the candidates are “patriots.”

According to the government’s proposal of April 2015,⁴³ such institutional nomination would proceed in two stages. In the first stage, potential candidates may be recommended jointly by one-tenth of the members of the NC. In the second stage, NC members would vote on the potential candidates who have emerged from the first stage. The majority requirement for the second stage thus ensures that the majority of the members of the NC may veto any potential candidate who is not considered a patriot or who is considered confrontational towards the central government. Since Beijing officials have said repeatedly that some of the pan-democrats are patriots, it is possible at least in theory that the first stage of the above-mentioned nomination process would produce three potential candidates, one of whom is a pan-democrat considered acceptable to Beijing, and in the second stage all three candidates would be endorsed by the majority of the NC. However, this whole arrangement was totally unacceptable to the pan-democrats, who firmly opposed in principle any “screening” on the basis of political orientation by the majority of the NC.

The Decision of the NPCSC in August 2014 might be understood as the outcome of a cost–benefit analysis conducted by Beijing of the introduction of elections of the CE by universal suffrage in Hong Kong. The benefit would be to be seen to honour the promise made in the 2007 Decision of the NPCSC and in the Basic Law, and to win the support of Hong Kong people who aspire towards democracy. Furthermore, some believe that the Hong Kong government would become more effective if its CE were elected by universal suffrage and thus enjoys greater legitimacy to govern Hong Kong. On the other hand, an electoral model that is acceptable to the pan-democrats would be one in which the pan-democrats would have a reasonable chance of getting their candidate(s) nominated by the NC as candidate(s) in the CE election by universal suffrage. For Beijing, agreeing to such an electoral model means to accept that there is a chance that a pan-democrat would be the winner in the election. Beijing would have assessed the likelihood of this scenario materializing and considered how to deal with this scenario should it materialize. Would it appoint the pan-democrat as CE? Or would it decline to make an appointment—a power which it has under the Basic Law, so that another election should be held? What would be the nature and magnitude of the political crisis in Hong Kong should this happen? How would such a crisis (taking into account its likelihood and its magnitude) compare with the crisis (including e.g. “Occupy Central”) that would be precipitated by the electoral model favoured by Beijing being vetoed by LegCo so that Hong Kong people’s hopes for universal suffrage in 2017 are dashed? These, then, were likely to have been the considerations which Beijing took into account in reaching the Decision in August 2014 on the model for universal suffrage for the Hong Kong CE in 2017. The Decision suggests that, according to Beijing’s analysis, the risk of a non-patriot winning an election by universal suffrage and of a crisis precipitated by Beijing refusing to appoint him or her as CE outweighs the risk of “Occupy Central” or of any discontent or unrest flowing from Beijing’s model for universal suffrage being vetoed by LegCo.

4. POSSIBLE PATHWAYS FOR HONG KONG’S CONSTITUTIONAL DEVELOPMENT

The renowned political scientist Robert A. Dahl developed a two-dimensional scheme to illustrate the possible evolution of a political system towards a greater degree of democracy⁴⁴: “[W]e think of democratization as made up of at least two dimensions: public contestation and the right to participate.”⁴⁵ In the diagram below, the horizontal axis represents the extent in society of the right to participate (vote) in elections, or what Dahl calls “inclusiveness.” The vertical axis represents the degree of public contestation or political competition, namely the extent to which different political forces are free to compete for political power:

Dahl uses the two-dimensional analysis to generate the following fourfold classifications of political systems⁴⁶:

Dahl points out that, in the case of England, the path of democratization was to evolve first from A to C (this movement is called “liberalization”), and finally to D (the movement is called “popularization”).⁴⁷ In the British case, the suffrage was originally limited to the upper classes, but extended in the course of the nineteenth and twentieth centuries to more classes and eventually to become universal suffrage. Power was transferred from the monarch (i.e. low degree of public contestation) to political parties competing to win parliamentary elections. The German Empire after the German unification of 1871 moved from A to B,⁴⁸ with parliamentary elections and yet the monarch retaining significant powers. France in the years immediately following the French Revolution of 1789 moved from A to D.⁴⁹ The political system of the former Soviet Union would fall within category B, with universal suffrage and yet power being monopolized by the Communist Party.⁵⁰

Using the above classification scheme, the existing political system of the HKSAR may be considered to fall within category A,⁵¹ insofar as the CE is elected by an election committee of 1,200 persons and pan-democrats have practically no chance of being elected to the office of the CE. The electoral reform proposed in 2015 was designed to move the system from A to B, since universal suffrage would be introduced for the election of the CE, but pan-democrats were unlikely to be nominated as candidates in the election. The pan-democrats vetoed the proposal as their goal was D, and they did not consider that the move from A to B would facilitate the eventual achievement of D.⁵²

Were the pan-democrats correct in their assessment that a move from A to B would be futile or even counter-productive from the perspective of democratization in Hong Kong? Is there any alternative pathway for the democratization of the HKSAR, such as a move from A to C followed by a transition to D? The second of these two questions will first be considered below, followed by discussion of the first question.

It is true that, in the case of Britain, as in several other Western states, the pathway of democratization has been from A to C, and then to D, with the development of political parties and groups competing for votes among the upper social strata first, followed by the gradual extension of the suffrage to become universal suffrage. However, in the contemporary world, in both liberal-democratic and authoritarian states, the political right to vote is no longer limited to upper classes in the social hierarchy, but has been extended to all adult citizens. A “category C” political system, which is a “competitive oligarchy” in which there is open competition between political parties or groups with different political orientations but the right to vote is limited to certain upper classes in society, cannot have any legitimacy in the contemporary world; there is hardly any political doctrine or ideology that can justify such a system. It therefore seems that the pathway of democratization characterized by a move from A to C first and then to D is no longer feasible and cannot be replicated in the contemporary world.⁵³

In the case of the HKSAR, the Basic Law and the NPCSC Decision of 2007 provide for a move to universal suffrage in the election of the CE and of all members of the Legislative Council as the ultimate destinations of the political development of the HKSAR. This dictates that any move from location A in our two-dimensional chart must be to the right-hand side, namely towards an increase in the “inclusiveness” of the political system in terms of the extension of the suffrage. In other words, in the case of the HKSAR, as in other parts of the contemporary world, the pathway of democratization characterized by a move from A to C first and then to D is not feasible.

We now return to the first question, which is whether, from the perspective of democratization in the longer term, the pan-democrats were correct in rejecting the proposed move from A to B, and whether they were right in believing that a move from A to B would not contribute towards (but would even be counter-productive to) an eventual transition to D (full democracy).

First, it should be pointed out in this regard that location B (“inclusive hegemony”) on our chart does not correspond to a single model of a political system, but can embrace several models. For example, according to Dahl, both the political system of the German Empire after Bismarck achieved German unification in 1871 and that of the former Soviet Union can be regarded as a “category B” system, but the two systems differed considerably in their power structures. In the former Soviet Union, elections were controlled by the Communist Party. On the other hand, in the “Second Reich” of Germany, there were free parliamentary elections, although executive power was in the hands of the monarch and his ministers and not open to electoral contestation.

In the case of the HKSAR, half of its Legislative Council members are already being elected in free elections by universal suffrage. If the government’s electoral reform proposal of 2015 were adopted, then, as from 2017, the CE would also be elected by universal suffrage, even though the NC would probably nominate as candidates only persons considered to be “patriots” and pan-democrats are unlikely to get nominated. Even so, those “patriots” who are nominated as candidates would need to compete for votes from millions of eligible voters by offering electoral platforms attractive to voters and persuading them that the candidate is worth voting for. The electoral outcomes will be globally visible, and so is the degree of public support for any candidate ultimately elected as CE. The CE so elected will be more directly accountable to the people of Hong Kong than the CE elected under the existing system of the 1,200-member election committee. It is conceivable that the experience of campaigning for mass support and of voting in the election would be transformative for both the candidates and the voters, respectively, in a manner conducive to the growth of a democratic political culture in Hong Kong, which in turn may prepare the way for an eventual transition from “inclusive hegemony” (B on our chart) to “polyarchy” (D on our chart).

It may therefore be questioned whether the pan-democrats’ rejection of the move from A to B might be based on too dogmatic a view of what “genuine democracy” is, or on a rather narrow vision of democratization, or on some kind of short-sightedness that underestimates the transformative potential of a move from A to B in possibly preparing the way for a further transition from B to D (full democracy). Indeed, one might also wonder whether a move from A to B in the HKSAR may also be conducive to the gradual democratization of mainland China itself in the longer run. Imagine the scenario of the Chinese Communist Party nominating several candidates for competitive election by universal suffrage to the positions of mayors of Chinese cities or even the governors of Chinese provinces. No one can deny that this would be a major step forward in Chinese political reform in the direction of democratization. From this perspective, the realization of a move from A to B in the political system of the HKSAR—as a kind of political experiment in this SAR of China—would be of far-reaching significance not only for Hong Kong, but also for China as a whole.

5. CONCLUDING REFLECTIONS

It may be considered tragic that the long-cherished hopes of the pan-democrats and of many people in Hong Kong that true liberal democracy be realized in the HKSAR under the framework of “OCTS” failed to be realized in the constitutional reform exercise of 2013–15, mainly because of the pan-democrats’ rejection of the NPCSC Decision of 31 August 2014. Pan-democrats condemned the NPCSC Decision and accused Beijing of breaching its promise of universal suffrage for Hong Kong people under the Basic Law. Yet, what the Basic Law promised was no more than a system of appointment of the CE by the central people’s government after an election by “universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.” Thus, some degree of control or pre-selection—or what the pan-democrats objected to as “screening”—of candidates by a NC had been built into the Basic Law as enacted in 1990.

In inaugurating the grand experiment of “OCTS,” the Hong Kong Basic Law not only provided for the co-existence of two economic systems—one socialist and the other capitalist—within the PRC, but also set in motion in Hong Kong a process of democratization towards eventual election of the CE by universal suffrage and election of all legislators by universal suffrage, thus moving the political systems of Hong Kong and of mainland China further apart over time (unless the latter also democratizes). The Basic Law has thus nourished the aspirations of many people in Hong Kong towards a full liberal democracy. But are these aspirations consistent with, and realizable within, the concept and structure of “OCTS,” under which the “One Country” adheres to the supremacy of the Chinese Communist Party and rejects Western-style or “bourgeois” liberal democracy? The story of the debate on and struggle for universal suffrage in Hong Kong thus reveals such underlying tensions behind, and the contradictions inherent in, the very concept and practice of “OCTS.” The NPCSC Decision of 31 August 2014 was the moment of truth for “OCTS.”⁵⁴