Fact check: Was Hong Kong ever promised democracy? (original) (raw)

More than two months of pro-democracy protests have failed to sway the Chinese government's decision to put limitations on the way residents of Hong Kong can elect the region's leader and legislative council.

More than 210 protesters have been arrested by Hong Kong police, amid warnings of further arrests as police tore down the protest camp in the city's financial district, after a High Court made an order in early December that the site be cleared.

Protesters say during Britain's negotiations before handing Hong Kong back to China in 1997, an understanding was reached that China would allow Hong Kong to progress towards democracy, despite the rest of China remaining under communist rule.

Martin Lee, a lawyer who helped draft Hong Kong's constitution told ABC's 7.30: "The people of Hong Kong have come out demanding democracy from Beijing. We are not asking for anything new. It was promised to us..."

ABC Fact Check looks at whether China has ever explicitly promised democracy for Hong Kong, and if the protesters are asking for anything new.

What are the protests about?

On August 31, the Chinese government released new rules to govern the 2017 Hong Kong elections. The decision of the National People's Congress Standing Committee (NPCSC) includes a rule that Hong Kong voters must elect their chief executive from two or three candidates selected by a 1200-person "nomination committee", and those candidates must "love the country and love Hong Kong".

The pro-democratic organisation "Occupy Central with Love and Peace" said China's ruling to limit the number of candidates who can stand for election, and veto candidates it deems unsuitable "stifles genuine universal suffrage".

The NPCSC decision "has deprived people with different political views of the right to run for election and be elected by imposing unreasonable restrictions, thereby perpetuating 'handpicked politics'," according to an Occupy Central media release.

Macquarie Dictionary defines universal suffrage as the right to vote provided to all, or the principle that the right to vote for one's government should be extended to everyone above a specified age, usually eighteen.

Pro-democracy protesters in Hong Kong on December 10, 2014

Protesters gather at the Occupy Central protest site in Admiralty in Hong Kong on December 10, 2014. (REUTERS/Athit Perawongmetha)

Early expectations

In 1984 China's premier Zhao Ziyang told a Hong Kong University student body that: "In the future, it is of course a sure thing, that Hong Kong will implement the democratisation of the political system, that is what you called the 'democratic ruling of Hong Kong'."

In 1992, former British Prime Minister Margaret Thatcher responded in the House of Lords to criticism over Britain's failure to take more steps before handover to secure democracy for Hong Kong, saying that "provision for the steady expansion of democracy had already been agreed with China".

"It is already agreed that half the members of the legislative council will be directly elected in the year 2003. That means that there could be universal suffrage by 2007, 10 years after the end of Britain's responsibility. It is not perfect perhaps, but it is a provision for steady and orderly progress towards full democratic elections".

Britain's chief negotiator and ambassador to China from 1978 to 1983, Sir Percy Cradock, said in an interview broadcast on ABC's Four Corners a week before the 1997 handover that the people of Hong Kong "naturally" felt let down.

"Unfortunately over the last four years we have given them the impression... they could have improved democracy now and also improved democracy after 1997," he said

"That was never a possibility and when they've come to realise it, as they have now, they are naturally feeling bitter and disillusioned," he said.

British diplomats to China, and later Hong Kong's last governor, Chris Patten, have hinted at the difficulties in negotiating to have more stringent democratic principles enshrined in Hong Kong law, and the backflip performed by Britain on the issue as it struggled to maintain close diplomatic and trade ties with China.

"In a case like this in Hong Kong where there is such a disparity in strength between the two sides, between Britain and China, you go for the best you can get, and I take the simple view that half a loaf is better than no bread," Sir Percy told Four Corners.

Fact Check asked Mr Lee for the basis for his comments on 7.30 that democracy was promised to Hong Kong.

He referred to three documents, each examined below.

Pro-democracy protesters stand behind a banner

Protesters stand behind a banner outside the British consulate in the Admiralty district of Hong Kong on November 21, 2014. (AFP: Philippe Lopez)

1. The Joint Declaration

In 1984 China and Britain signed the Joint Declaration guaranteeing that Hong Kong would "enjoy a high degree of autonomy", continue its capitalist system and its "life-style" and retain independent judicial power.

It also guaranteed that "the chief executive will be appointed by the Central People's Government on the basis of the results of elections or consultations to be held locally."

Mr Lee referred Fact Check to Article 3 of the Joint Declaration, specifically to the section which says all the policies, including those mentioned above, "will be stipulated, in a Basic Law of the Hong Kong Special Administrative Region... and they will remain unchanged for 50 years".

Specifically, Article 3 states:

Article 3(2) The Hong Kong Special Administrative Region will be directly under the authority of the Central People's Government of the People's Republic of China. The Hong Kong Special Administrative Region will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People's Government;

Article 3(4) The chief executive will be appointed by the Central People's Government on the basis of the results of elections or consultations to be held locally. Principal officials will be nominated by the chief executive of the Hong Kong Special Administrative Region for appointment by the Central People's Government; and

Article 3(5) The current social and economic systems in Hong Kong will remain unchanged, and so will the life-style. Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by law in the Hong Kong Special Administrative Region.

The UK Parliament's Select Committee on Foreign Affairs has intermittently reported on the status and stability of Hong Kong since the 1997 handover.

In a report released in November 2000, the Committee stated that during negotiations between Britain and China for the handover, there was a preference by both parties to leave out any reference to democracy, given "there was nothing approaching democracy in Hong Kong... when the Joint Declaration was signed [in 1984]."

The committee referred to comments from Alan Paul, the Senior British Representative at the final session of the Sino-British Liaison Group in 1999. He stated:

"I have again raised [during the Liaison Group meeting] the need for democratic development in Hong Kong at a pace in line with the wishes of the community. The two sides agreed that this is a matter which falls entirely within Hong Kong's high degree of autonomy."

The UK Select Committee concluded:

"The Chinese government has therefore formally accepted that it is for the Hong Kong government to determine the extent and nature of democracy in Hong Kong. However, there are reasons for doubting whether the Chinese government is in practice sanguine about the prospect of untrammelled democracy developing in Hong Kong.

This is both because a fully democratic Hong Kong would represent a model for the rest of China...and because the mainland is unwilling to see a Hong Kong administration with the self-confidence which democracy would bring to exercise the autonomy which has been granted to it."

2. Hong Kong's Basic Law

In 1990, China approved Hong Kong's Basic Law, which is recognised as operating like a constitution governing Hong Kong, and came into effect after the handover in 1997.

Mr Lee says several sections of the Basic Law underpin Hong Kong's right to democracy - Articles 26, 45 and 68, and Annexes I and II.

Article 26 reads:

Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law.

Article 45 states in part:

The method for selecting the chief executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. 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.

Article 68 refers to the legislative council and says the "ultimate aim is the election of all the members of the legislative council by universal suffrage".

Following the release of China's August 2014 decision, vice secretary-general of the NPCSC Li Fei disputed calls to implement an internationally accepted definition of democracy in Hong Kong. He told a press conference that "international standards" clearly run against the Basic Law, and such "unpractical" calls had led to "a tremendous waste of time" in Hong Kong society.

"Having two or three election candidates will make for an efficient election system and complies with the opinions of the majority expressed during a five-month consultation conducted by the HKSAR government".

3. International Law

Mr Lee referred Fact Check to basic democratic rights enshrined in the International Covenant on Civil and Political Rights which the protesters say should extend to how elections are held in Hong Kong, because the language used in Article 3(5) of the Joint Declaration reflects certain rights contained in the ICCPR.

Hong Kong is not a signatory to the ICCPR. Instead, in 1976 the United Kingdom ratified the international treaty, and extended the protections contained in the document to its dependent nations, including Hong Kong.

Crucially, however, it carved out Article 25 of the ICCPR and said it did not apply to Hong Kong. This was in recognition of the fact that Hong Kong was not a democracy.

That Article contains the right for any citizen, without unreasonable restrictions, to "take part in the conduct of public affairs, directly, or through freely chosen representatives", and "to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage..."

Academic Geping Rao wrote in a legal journal in 1993 that "The United Kingdom stated that based on the fact that no seats in the Legislative Council in Hong Kong were elected at that time, it would reserve Article 25 for the reason that its intent was not to require the establishment of an elected executive or legislative council in Hong Kong, where none had previously existed."

"Changes have since occurred which put into question the necessity of continuing this reservation," he said.

When Hong Kong later mirrored the language of the ICCPR in Article 3(5) of its Basic Law in 1990, it again left out the reference in Article 25 of the ICCPR to citizens being able to vote, "and be elected at genuine periodic elections".

Occupy Central Hong Kong protester

An Occupy Central Hong Kong protester holds umbrellas in the air, the symbol of the pro-democracy protests. (Reuters: Tyrone Siu)

Election reforms

In 1991, direct elections were introduced for 18 (of 60) legislative council seats - although only certain sections of Hong Kong could vote. Governor Chris Patten increased the number of directly elected seats to 30 in 1995.

The other half of the council are elected by so-called "functional constituencies". A 2004 paper by researchers for the Centre for Comparative and Public Law at the University of Hong Kong explains: "The system confers a right to vote on a small percentage of... the population based on membership in a recognised social, economic, industrial, commercial, political advisory, professional body or sector".

After the 1997 handover, Beijing dismantled the existing council, and replaced it with a provisional body entirely appointed by China.

One year later, a small number of seats in the council were marked for direct election, but a 400-member election committee had been established to select the remaining council members, and the chief executive (a newly created position to fill the role left by the outgoing British governor).

Inaugural chief executive Tung Chee-hwa indicated in 2001 that constitutional reform or direct elections for the chief executive would not be in place for the 2007 elections.

In April 2004, the NPCSC ruled out any change before at least 2012. A year later, following a three month consultation period, a pro-democratic proposal for elections in 2007-08 was explicitly vetoed by Hong Kong's legislative council.

Beijing has the power to amend Hong Kong's Basic Law. The NPCSC did so in December 2007, and again in August 2014 when it released rulings on how elections are to be carried out.

The NPCSC's 2007 decision foiled hopes of democratic groups by ruling out direct elections in 2012. Instead, it suggested 2017 as a possible date to implement universal suffrage, declaring:

... that the election of the fifth chief executive of the Hong Kong Special Administrative Region in the year 2017 may be implemented by the method of universal suffrage; that after the chief executive is selected by universal suffrage, the election of the Legislative Council of the Hong Kong Special Administrative Region may be implemented by the method of electing all the members by universal suffrage.

China's 2007 decision repeats the limitation contained in Article 45 of the Basic Law that a "broadly representative nominating committee" would be formed to nominate a certain number of candidates, who would then be elected "through universal suffrage by all registered electors of [Hong Kong]... and officially appointed by Beijing". The size of the committee has been progressively increased from 400 in 1998 to 1200 in 2012.

The 2007 decision goes on to say:

[The NPCSC] is of the view that... the democratic system of [Hong Kong] will definitely make progress continuously, and that the aim of the selection of the chief executive and the election of all the members of the Legislative Council by universal suffrage will be realized in accordance with the Hong Kong Basic Law and this Decision.

The drafting of the 2007 decision, particularly the word "may", leaves open how fast this "continuous progress" of the democratic system would develop.

A Congressional Research Service Report for the US Congress said in January 2008 that "ambiguities in the language used by the NPCSC have contributed to differences in interpretation of its decision".

It said the view of then chief executive Donald Tsang Yam-keun was that "the decision sets a clear timetable for democracy" in Hong Kong. "However, representatives of Hong Kong's pro-democracy parties believe the decision includes no solid commitment to democratisation in Hong Kong," it said.

While the NPCSC's 2014 decision, allows the Hong Kong public to vote for their chief executive for the first time since the handover, the limitations on that vote sparked the recent protests.

It states:

"The Hong Kong community generally expressed the hope to see the selection of the Chief Executive by universal suffrage in 2017, and broad consensus was reached on important principles such as: the method for selecting the chief executive by universal suffrage shall comply with the Hong Kong Basic Law and the relevant Decisions of the [NPCSC] and the chief executive shall be a person who loves the country and loves Hong Kong."

"The nominating committee shall nominate two to three candidates for the office of 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."

"All eligible electors of the Hong Kong Special Administrative Region have the right to vote in the election of the chief executive and elect one of the candidates for the office of chief executive in accordance with law."

"Implementing universal suffrage for the selection of the chief executive represents a historic progress in Hong Kong's democratic development and a significant change... 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."

A pro-democracy protester pleads with police not to use force

A pro-democracy protester pleads with police not to use force during a standoff in the Mongkok district of Hong Kong on October 18, 2014. (AFP/Anthony Wallace)

Albert Chen, former dean of the University of Hong Kong law faculty told Fact Check that when the Joint Declaration said the chief executive would be appointed by China on the basis of the results of elections or consultations, "there was no mention of universal suffrage or democracy in this context".

When it comes to Article 45 of the Basic Law, Professor Chen says: "The 'democratic procedures' refers to the procedures of nomination by the nomination committee," not the selection of the nominated chief executive by the people.

"In my opinion, the latest decision of the National People's Congress Standing Committee in August 2014 on political reform in Hong Kong is based on and consistent with this provision in Article 45."

Fellow University of Hong Kong professor Ian Scott expressed a contrary opinion to Fact Check. He said Mr Lee is correct, and that Hong Kong has been trying to define universal suffrage as something other than one person, one vote, "probably with the intent of retaining functional constituencies [favourable to China] which currently make up 50 per cent of the [legislative council]".

He said it would be difficult to define having 1200 people nominate the chief executive as "broadly representative", as required by the Basic Law. "It is in fact disproportionately representative of business and professional elites," he said.

"The demonstrators have argued for the right of open nomination rather than committee nomination. It would not have been difficult to concede to that demand but the Chinese government (supported of course by the Hong Kong government) chose to argue that open nomination was contrary to the provisions of the Basic Law.

"The attempt to separate the nomination process from elections under universal suffrage is contrary to democratic practice everywhere else in the world and means in effect a choice between Tweedledum and Tweedledee, both of whom would have to be acceptable to the Chinese government."

The attempt to separate the nomination process from elections under universal suffrage is contrary to democratic practice everywhere else in the world and means in effect a choice between Tweedledum and Tweedledee, both of whom would have to be acceptable to the Chinese government.

Conversely, Chairman of the Basic Law Institute, Alan Hoo, a pro-Beijing Hong Kong barrister told the BBC that while the people on the streets are asking for the right to nominate, Article 45 of the Basic Law does not include this right.

"Universal suffrage, under the International Covenant [on Civil and Political Rights], means that there are express rights to elect or be elected. There is no express right to nominate," he said

Like Professor Chen, Sydney University Professor of Chinese Law Bing Ling says: "The Joint Declaration includes little that could be construed as a promise for democracy (except for the continued application of the ICCPR)." He notes the application of the ICCPR in Hong Kong is still subject to the "UK reservation" and says whether it should be so is disputed.

The UN Human Rights Committee says because elections have taken place since 2007, Article 25 should now apply. A lower court in Hong Kong has also argued that the exclusion should no longer apply, but the decision does not carry any legal weight, Prof Ling says.

The Basic Law does have Article 45, but does not promise a timetable [for democracy], he says, although the 2007 NPCSC decision "arguably involves a promise of a 'meaningful' election, not a rigged one".

Former governor Chris Patten told the UK Select Committee in November 2014 that while the argument for democracy was not "specifically addressed in the Joint Declaration", the implicationand the understanding of British officials during negotiations between 1984 and 1997 was that "things would move in that direction".

But he also said in October 2014 that the existing election committee, which currently selects the chief executive, is not in fact, broadly representative and violates the Basic Law. "Its membership is chosen by only 7 per cent of the total Hong Kong electorate, and its voting procedures seek to prevent the nomination of any candidates who may harbor democratic sympathies," he wrote in Project Syndicate.

Professor Steven Phillips from Towson University in Maryland said that the problem with the current debate is that activists assumed the Joint Declaration and the Basic Law intended the term "universal suffrage" to mean the freedom to nominate a wide variety of local leaders to run for election for the Chief Executive post.

"Lee's claim that he is not asking for anything new is correct. I think Lee and those who share his views have long assumed that Articles 26 and 45 mean that nominations for the chief executive post in the 2017 election would be open to a wide variety of figures, and that the bar for running for this office would be low.

"However, I also don't think Beijing ever explicitly stated that it accepted the idea of a nomination process that would let many candidates compete."

University of Hong Kong professor Michael Davis says the operation of Article 45 of the Basic Law does not weaken the democracy argument, despite it tempering the notion of "universal suffrage" by saying it would be implemented using a "broadly representative" nominating committee.

"The [protesters] calls for civil nomination have been questioned by the Hong Kong Bar, but the protesters argue that the result of a civil nomination could be passed through the nominating committee.

"Civil nomination is generally promoted because the protesters do not trust the government and its nominating process. Occupy Central leaders have frequently said that they would accept a model that met international standards, meaning that the voters be given a free choice."

Like any constitution the language is deliberately vague. Martin Lee is not wrong. It is simply that the same language suits the Chinese and their goals as well.

Harvard University's Dalena Wright told Fact Check: "The problem is that the Chinese were careful to ensure that the language suited their purposes."

She emphasises the Chinese government's avowal "in the text of the Basic Law, in discourse in recent years in the Legislative Council debates and in public pronouncements", of a gradual move towards an increasingly open, free and fair election of the chief executive.

"So it comes down to this. Like any constitution the language is deliberately vague. Martin Lee is not wrong. It is simply that the same language suits the Chinese and their goals as well."

She says the UK Parliamentary debates stand as a legislative record of what was intended by both the Chinese and the British when ratifying the Joint Declaration, and subsequently. That record, she says, promised democratic reform and a higher degree of autonomy than is evident from the handing down of a restrictive White Paper, released in June 2014 which states that Beijing has "complete jurisdiction" over Hong Kong and introduced the idea of restricting chief executives to those who "love the country and Hong Kong".

Like some of the British diplomats involved in the negotiations, Ms Wright says that while British public debate spoke of democratic reform, behind the scenes the Chinese asserted that any reform would be "a deliberate and very much an attenuated process".

"For thirteen years before handover, the British, the Chinese and the Hong Kong activists quarrelled mightily over the pace of reform... Regardless of what the Chinese have promised over the last 20 years, it is also true that there were portents that this day would come".

University of Nottingham Professor and author of A Modern History Of China, Steve Tsangechoed Ms Wright's sentiment that both the Chinese and pro-democratic interpretation of the laws could be correct.

He told Fact Check that it is unreasonable to reduce such complex issues to an either/or proposition, where two contrasting interpretations of the law may be equally reasonable.

"It is not about facts but about political interpretation of documents and undertakings, implicit or explicit, as well as concepts such as 'demand for democracy'."

A pro-democracy protester sleeps over a barricade at the Mong Kok shopping district of Hong Kong October 20, 2014.

A pro-democracy protester sleeps over a barricade at the Mong Kok shopping district of Hong Kong on October 20, 2014.

The verdict

Martin Lee says Hong Kong was promised democracy and that three legal instruments prove it. British diplomats involved in negotiating the 1997 handover of Hong Kong to China have said no such promise was explicitly given.

The legal instruments do not preclude a gradual and steady move towards democracy, although there is argument about how China and Britain, and now Hong Kong, define democracy.

Legal academics have various opinions: some say the documents support China's position that chief executive candidates were always intended to be elected from those chosen by a committee; others say the documents prove China intended for Hong Kong to move towards a government based on universal suffrage.

The documents are ambiguous and can be interpreted to favour either side's argument, however any claim that Hong Kong has been promised democracy should be tempered by evidence that China did not explicitly included a timetable for steps to universal suffrage, did not define democratic principles, and did not allow international standards for free and fair elections to apply in Hong Kong.

Mr Lee's claim is overstated.

Sources