Written evidence submitted by the Hong Kong Democratic Foundation to the Foreign Affairs Committee of the House of Commons of the Parliament of the United Kingdom in response to its inquiry entitled “The UK’s relations with Hong Kong: 30 years after the Joint Declaration”

 In Constitutional Reform, Constitutional Reform, One Country Two Systems & Post-2047 Issues
,

China’s betrayal of its pledges and Britain’s dereliction of duty as committed to in the Sino-British Joint Declaration

 

Summary of the submission

  • This submission focuses on Hong Kong people’s electoral rights as enshrined in the Sino-British Joint Declaration and the Hong Kong Basic Law.
  • It calls on the Foreign Affairs Committee to look into the following:
    • betrayal by the Government of the People’s Republic of China of its commitments on Hong Kong people’s electoral rights as enshrined in the Sino-British Joint Declaration and the Hong Kong Basic Law,
    • failure of the Government of the United Kingdom to ensure that China honours such commitments.
  • It calls on the Government of the United Kingdom to discharge its duty as a signatory to the Joint Declaration to insist on China’s faithful implementation of its commitments on Hong Kong people’s electoral rights.

 

The main body of the submission

 A reminder of the rights and obligations of Britain and China under the Sino-British Joint Declaration

  1. In making the demands above, it is important to remind the Committee of the rights and obligations conferred upon Britain and China by the Sino-British Joint Declaration.

 

  1. The Sino-British Joint Declaration is a legally-binding international treaty signed by Britain and China and lodged with the United Nations. Paragraph 7 of the Declaration states that Britain and China agree to implement the Declaration and its Annexes, paragraph 8 provides that both the Joint Declaration itself and its Annexes are equally binding.

 

  1. The main text of the Joint Declaration (in paragraph 3) sets out China’s basic policies regarding Hong Kong after 1997. These basic policies are further elaborated in Annex I of the Joint Declaration.

 

  1. Paragraph 3(12) of the Joint Declaration provides that China’s basic policies regarding Hong Kong are to be implemented in Hong Kong through a Basic Law enacted by China’s National People’s Congress. This function of the Basic Law is restated in the Preamble of the Basic Law of Hong Kong, which states that the enactment of the Basic Law of Hong Kong is “to ensure the implementation of the basic policies of the People’s Republic of China regarding Hong Kong.” These passages suggest that the Basic Law is a legal instrument for implementing the Joint Declaration in Hong Kong.

 

  1. Given the afore-mentioned status of the Basic Law, China is obligated by the Joint Declaration to implement the Basic Law faithfully and in consistency with the Joint Declaration, while Britain is conferred a right by the Joint Declaration to call on China to so honour its commitments.

 

  1. As Britain was returning Hong Kong to an authoritarian regime with a poor human rights record,  the then British Prime Minister Mrs Margaret Thatcher defended the decision on the promise that Britain would see to China fulfilling its commitments in the Joint Declaration. It is therefore important to remind the Committee that Hong Kong people have a moral right to call on Britain to honour its promise, while Britain owes Hong Kong a moral duty to ensure that China’s commitments are indeed honoured.

 

Hong Kong people’s electoral rights as enshrined in the Joint Declaration and the Basic Law

  1. Provisions in the Joint Declaration and the Basic Law that protect the electoral rights of Hong Kong people include:
    • Joint Declaration
      • Annex I, Paragraph XII: “… The provisions of the International Covenant on Civil and Political Rights [hereafter ICCPR] and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force.”
    • Basic Law
      • Article 25: “All Hong Kong residents shall be equal before the law.”
      • Article 26: “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 39: “The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. …”

 

  1. There has been an argument that Article 39 of the Basic Law does not require the application to Hong Kong of Article 25(b) of the ICCPR, which protects the rights to vote and to be elected. The argument contends that in Article 39, the clause “as applied to” means that the reservation entered by Britain in 1976 not to implement Article 25(b) of the ICCPR in Hong Kong continues to apply today.

 

  1. However, the United Nations Human Rights Committee has repeatedly expressed disagreement with this argument. The Committee takes the view that Britain’s reservation concerns only the right not to hold elections in Hong Kong (the 1976 reservation reads “The Government of the United Kingdom reserves the right not to apply sub-paragraph (b) of Article 25 in so far as it may require the establishment of an elected Executive or Legislative Council in Hong Kong”); once elections are held, however, these must comply with Article 25(b).

 

  1. Provisions spelling out how Hong Kong’s Chief Executive is to be selected and how the Legislative Council is formed are contained in:
    • Joint Declaration
      • Chief Executive, Annex I, Paragraph I: “…The chief executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People’s Government. …”
      • Legislative Council, Annex I, Paragraph I: “…The legislature of the Hong Kong Special Administrative Region shall be constituted by elections. …”
    • Basic Law
      • Chief Executive, Article 45:
        • “The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People’s Government.”
        • “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.”
      • Legislative Council, Article 68:
        • “The Legislative Council of the Hong Kong Special Administrative Region shall be constituted by election.”
        • “The method for forming the Legislative Council 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 election of all the members of the Legislative Council by universal suffrage.”

 

  1. Paragraphs 7-10 above clearly show that both the Joint Declaration and the Basic Law confer on Hong Kong people an equal right to vote as well as to be elected in Hong Kong’s Chief Executive and legislative elections.

 

  1. Apart from setting out the specific methods (with very limited suffrage) for electing the first two terms of the Chief Executive (1997, 2002) and the first three terms of the legislature (1998, 2000, 2004), the Basic Law is otherwise silent on the electoral systems to be used for realizing people’s equal electoral rights; election methods for Chief Executive and legislative elections subsequent to 2002 and 2004 respectively are left open.

 

  1. In relation to the legislature, according to Article III of Annex II of the Basic Law, the decision concerning election methods rests entirely with Hong Kong people. The article reads: “With regard to the method for forming the Legislative Council of the Hong Kong Special Administrative Region and its procedures for voting on bills and motions after 2007, if there is a need to amend the provisions of this Annex, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People’s Congress for the record.”

 

  1. It is worth taking note by the Foreign Affairs Committee that under this provision, it would have been up to the Hong Kong people to institute equal electoral rights in the election of the fourth term of the legislature in 2008.

 

  1. As regards equal electoral rights in Chief Executive elections, according to Article 7 of Annex I of the Basic Law, while China’s approval is required, the initiative on when and by what electoral system to realize such rights rests with Hong Kong. Article 7 reads: “If there is a need to amend the method for selecting the Chief Executives for the terms subsequent to the year 2007, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People’s Congress for approval.”

 

  1. The Committee is invited to note that China’s role is confined in Article 7 to merely approving or not approving the electoral arrangements that Hong Kong has agreed on for electing the Chief Executive. Article 7 does not give China a role in either setting the time-table or stipulating specific arrangements for elections of the Chief Executive.

 

China’s unlawful denial of Hong Kong people’s equal electoral rights

  1. Although the aforementioned provisions relating to Hong Kong people’s equal electoral rights remain intact on paper as of present, China has in effect reneged on her commitment to such rights and turned the provisions into sheer empty words; she has done so through an interpretation of Annexes I and II of the Basic Law and through a number of decisions issued by the Standing Committee of the National People’s Congress (SCNPC).

 

  1. We call on the Committee to note that the SCNPC issued these interpretation and decisions ultra vires.

 

  1. On 6 April 2004, the SCNPC issued an interpretation of Article 7 of Annex I (see paras 15-16 above) and Article III of Annex II (see paras 13-14 above) of the Basic Law. The clause “(i)f there is a need to amend” in these articles was interpreted to mean “(t)he Chief Executive of the Hong Kong Special Administrative Region shall make a report to the Standing Committee of the National People’s Congress as regards whether there is a need to make an amendment; and the Standing Committee of the National People’s Congress shall [ … ] make a determination 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.”.[1]

 

  1. Such an interpretation in effect amounts to an amendment of Articles 7 and III, albeit without going through the due process of amendment as enshrined in Article 159 of the Basic Law. Before the interpretation, whether there is a need to amend the method for electing the Chief Executive or the legislature is a matter for Hong Kong to decide; after the interpretation, approval on this matter has to be sought from the SCNPC.

 

  1. The Committee’s attention is hereby drawn to the extent to which the interpretation goes against the original intents of Articles 7 and III.

 

  1. Before the interpretation, according to Article 7 of Annex I, the role of the SCNPC in the process of amending the method for electing the Chief Executive was only “reactive” – saying only “yes” or “no” to any changes to the method of electing the Chief Executive that had been endorsed by Hong Kong. With the interpretation, the SCNPC bestowed upon itself a “pre-emptive” role in the process – no amendment can be initiated without its approval.

 

  1. As regards Article III of Annex II, before the interpretation, the role of the SCNPC in the process of amending the method for electing the legislature was limited to the formality of recording any changes to the method that had been endorsed by Hong Kong. With the interpretation, no amendment can be initiated without its approval; the SCNPC has in effect nullified Article III of Annex II.[2]

 

  1. Subsequent to this interpretation, the SCNPC has further issued three decisions regarding the methods for electing the Chief Executive and the Legislative Council.

 

  1. The first decision issued on 26 April 2004 deprived Hong Kong people of their equal rights to elect the third term Chief Executive in 2007 and the fourth term legislature in 2008.[3]

 

  1. The second decision issued on 29 December 2007 again deprived Hong Kong people of their equal rights to elect the fourth term Chief Executive in 2012 as well as the fifth term and the sixth term legislature in 2012 and 2016 respectively. The decision provided for a possibility that Hong Kong might be allowed universal suffrage in 2017 and 2020 at the earliest when electing the fifth term Chief Executive and the seventh term legislature respectively.[4]

 

  1. The third decision was issued on 31 August 2014.[5] Regarding this decision, the Foreign Affairs Committee is urged to first look into yet another unlawful act of the SCNPC in inventing a new role for itself that did not previously exist in the process of designing the arrangements for electing the Chief Executive.

 

  1. In this latest decision, the SCNPC indicates that it has a “constitutional responsibility” “for deciding on the method for the selection of the Chief Executive”,[6] and that on this basis, the SCNPC “finds it necessary to make provisions on certain core issues concerning the method for selecting the Chief Executive by universal suffrage.”[7] It is important to note that this is a role to be found nowhere in the Basic Law or in the 2004 interpretation.

 

  1. According to Article 7 of Annex I of the Basic Law, the role of the SCNPC in the process of amending the method for electing the Chief Executive is “reactive” only (see para 22 above).

 

  1. Even in the 2004 interpretation, the SCNPC invented for itself no more than a determining role on “whether there is a need to amend the method” (see paras 19-22 above).

 

  1. Now, through creating a previously-non-existent “constitutional” duty for itself, apart from deciding that Hong Kong people may be allowed to elect the Chief Executive by “universal suffrage” in 2017, the SCNPC has gone one step further in claiming authority to decide for Hong Kong a detailed nomination procedure for the Chief Executive election as follows:
    • the nominating committee for putting forward candidates for the office of Chief Executive shall be formed in accordance with how the Election Committee was formed for the preceding Chief Executive election (in other words, the electoral base for returning members of the nominating committee will be extremely small)
    • 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 members of the nominating committee[8]

 

  1. How such a nomination procedure will severely restrict Hong Kong people’s equal right to be elected in the 2017 Chief Executive election should need no further elaboration.

 

  1. Such a nomination procedure also plainly contravenes Article 26 of the Basic Law (guaranteeing that Hong Kong people have the right to vote and the right to stand for election, see para 7 above) and the ICCPR which is enshrined in Article 39 of the Basic Law (see paras 7-9 above).

 

  1. We conclude from paras 17-33 above that China has blatantly disregarded all provisions regarding Hong Kong people’s equal electoral rights as enshrined in the Basic Law, as well as pledges in this connection that it has committed itself to in the Joint-Declaration.

 

Britain has failed in its duty to Hong Kong people

  1. On the part of Britain, we call on the Committee to note that the British government has been largely silent to China’s blatant disregard of Basic Law and Joint-Declaration provisions and has failed Hong Kong people in living up to its duty to ensure China’s faithful implementation of the Basic Law and the Joint Declaration. We will substantiate this observation in the paragraphs below.

 

  1. In his statement in response to SCNPC’s 2004 interpretation of the Basic Law, the Foreign Office minister at the time, Bill Rammell MP said: “We also share the concern in Hong Kong that the procedure set out by the NPCSC requiring a submission from the Chief Executive adds a further step to the procedure set out in the Annexes to the Basic Law. This appears to us to erode the high degree of autonomy which is guaranteed under the terms of the Joint Declaration. … We believe that it is now important for the Hong Kong Special Administrative Region government to continue its consultation of Hong Kong people and come forward soon with concrete proposals for constitutional development in line with the Basic Law and the wishes of the people of Hong Kong.”[9]

 

  1. Britain’s acquiescence of the SCNPC’s interpretation was clear in the minister’s statement: accepting the interpretation and moving forward within its parameter took precedence over contesting the interpretation itself.

 

  1. Similar acquiescence on the part of the British government was also evident in its statements in response to the series of decisions issued by the SCNPC concerning the elections of the Chief Executive and the legislature:
    • Foreign Office minister’s statement in response to the first SCNPC decision in 2004 read: “I am also disappointed that the NPC has set limits to constitutional development in Hong Kong that are not required by the Basic Law …. . We look forward to seeing the proposals that the Hong Kong Special Administrative Region Government (HKSARG) comes forward with in the light of this decision.”[10]
    • Foreign Secretary’s statement in response to the second SCNPC decision in 2007 read: “Today’s announcement by the National People’s Congress that there will not be universal suffrage in the 2012 Hong Kong elections will be a disappointment for all those who want to see Hong Kong move to full democracy as soon as possible. …The National People’s Congress’ statement clearly points towards universal suffrage for the Chief Executive election in 2017 and the Legislative Council thereafter. I hope that all parties concerned can engage in meaningful dialogue to allow this …”[11]
    • Foreign and Commonwealth office’s statement in response to the third SCNPC decision in 2014 read: “We recognize that the detailed terms that the National People’s Congress has set for the 2017 election will disappoint those who are arguing for a more open nomination process. …We hope that the next period of consultation will produce arrangements which allow a meaningful advance for democracy in Hong Kong, and we encourage all parties to engage constructively in discussion to that end.”

 

  1. That the British government has all along been quietly accepting China’s blatant disregard of her commitments and promises to Hong Kong is evident from the weak responses cited above; basically, the British position seems to be for Hong Kong to accept the SCNPC decisions and try if possible to move forward in light of those decisions.

 

  1. The British government has thus far neither vocally protested against nor challenged the legality of the SCNPC’s Basic Law Interpretation and Decisions regarding the methods for electing the Hong Kong Chief Executive and the legislature. As a country with a long-standing legal tradition of upholding justice and the rule of law, this is extremely disappointing.

 

  1. Nor has the British government raised the issue with China concerning the faithful implementation of the Basic Law and the Joint-Declaration, especially about Hong Kong people’s electoral rights. Speaking up on these electoral rights will ensure the Britain’s international standing as a nation that promotes democracy and human rights.

 

  1. We think that the British government should live up to its past promises by doing its moral duty to Hong Kong by exercising its right conferred by the Joint-Declaration to insist on China’s faithful implementation of its commitments to Hong Kong people’s electoral rights.

 

 

Hong Kong Democratic Foundation (香港民主促進會)

October 2014

 

 

[1] The Interpretation by the Standing Committee of the National People’s Congress of Article 7 of Annex I and Article III of Annex II of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (adopted at the Eighth Session of the Standing Committee of the Tenth National People’s Congress on 6 April 2004).

[2] The Committee’s attention should also be drawn to another constitutional issue arising from the 2004 SCNPC interpretation. The 2004 interpretation was issued by the SCNPC on its own initiative. Judging from the text of the Basic Law provision relating to interpretations of the Basic Law, the 2004 interpretation appeared to be unconstitutional. According to Article 158 of the Basic Law, the SCNPC can issue an interpretation of the Basic Law only upon the request of Hong Kong’s Court of Final Appeal. However, in 1999, the Court of Final Appeal ruled that the SCNPC’s power of interpretation of the Basic Law was unrestricted and unqualified and that SCNPC had the power to interpret the Basic Law before, during or after any court case. As a result of this ruling, SCNPC’s 2004 interpretation, while arguably unconstitutional according to the text of Article 158, became acquiesced to. The constitutional issue here is that the Court of Final Appeal issued a ruling related to a provision of the Basic Law that arguably went against the meaning of the text of the provision. Could it be that the Court of Final Appeal’s 1999 ruling was unconstitutional?

[3] Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region in the Year 2007 and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2008 (adopted at the Ninth Session of the Standing Committee of the Tenth National People’s Congress on 26 April 2004).

[4] Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2012 and on Issues Relating to Universal Suffrage (adopted at the Thirty-First Session of the Standing Committee of the Tenth National People’s Congress on 29 December 2007).

[5] Decision and explanations of the Standing Committee of the National People’s Congress on Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016 (adopted at the Tenth Session of the Standing Committee of the Twelfth National People’s Congress on 31 August 2014).

[6] Ibid., p. 3.

[7] Ibid., p. 3.

[8] Ibid., p. 4.

[9] Six-monthly Report on Hong Kong: January-June 2004, pp. 9-10.

[10] Ibid., p. 12.

[11] Six-monthly Report on Hong Kong: 1 July – 31 December 2007, p. 7.

 

 

 

 

Facebook Comments
Recent Posts
The Professional Commons’s response on Healthcare Reform Second Stage Consultation 
Developing country park – from absurdity to reality
Taking stock of the local agricultural industry is more than a matter of market values (Chinese version only)
Our dignified autonomy: farmers for the umbrella movement (Chinese version only)
China survival tip: where in the world are Guangdong’s hazardous chemical wastes? (Chinese version only)
Political expectations of the new China-HK model in post-political reform Hong Kong (Chinese version only)

Start typing and press Enter to search

Home
Home