When it comes to direct
elections and democracy in Hong Kong, Beijing has this
week been reviled for forbidding universal suffrage in
2007 for the chief executive and legislature. But China,
which for years flouted or dismissed the the rule of
law, now has the law, the Hong Kong Basic Law, certainly
its letter - if not its spirit - on its side.
The democracy uproar by some in Hong Kong and
the outcry in some Western capitals over Beijing's
rejection on Monday of early universal suffrage in Hong
Kong misses the crucial legal point: Since Hong Kong was
returned by the Britain to Chinese sovereignty on July
1, 1997, China has 50 years to make good on its goal of
achieving universal suffrage. That's July 1, 2047: not
the 2007 indirect elections for the chief executive and
not the 2008 elections for half of the legislature, much
as activists would wish for genuine pluralism and full
participatory democracy.
There is no doubt that
most Hong Kong residents want direct elections of both
their chief executive (now chosen by 800 electors
hand-picked by Beijing) and their entire 60-person
legislature or Legislative Council (only 30 members are
elected directly). They have taken peacefully to the
streets on several occasions to make their demands for
democracy known. Many also believe that the Basic Law,
the constitution governing Hong Kong since the British
handover, grants them the right of universal suffrage,
certainly by 2007. They are wrong, though China does
have legal discretion, which it chooses not to exercise
for fear of instability and an unruly, vociferous
population that does not toe the Beijing line. Already,
Beijing watched with discomfort the upheaval, the
confusion and street demonstrations in Taiwan after
President Chen Shui-bian - no fan of reunification with
China - narrowly won re-election.
This week
China was emphatic on Hong Kong: no direct popular
elections of the chief executive and no direct popular
elections of the entire legislature. Full stop. And the
Basic Law gives China the right to limit democracy.
The uproar was immediate among democracy and
human rights activists; Washington and London criticized
China's decision as heavy-handed and unnecessary.
A look at key elements of the Basic Law is illuminating: In
the Basic Law hammered out by the departing British,
China agrees that socialism will not be practiced in
Hong Kong, the capitalist system will continue and the
residents will enjoy a high-degree of autonomy under
what China calls the "one country two systems" model. Of
course, the ultimate authority is the Beijing government
and the Communist Party of China (CPC).
"The
Hong Kong Special Administrative Region (HKSAR)has a
high degree of autonomy and enjoys executive,
legislative and independent judicial power, including
that of final adjudication," the law says. "The
socialist system and policies shall not be practiced in
the HKSAR, and the previous capitalist system and way of
life shall remain unchanged for 50 years."
Furthermore, "Hong Kong residents shall have,
among other things, freedom of speech, of the press and
of publication; freedom of association, of assembly, of
procession, of demonstration, of communication, of
movement, of conscience, of religious belief, and of
marriage; and the right and freedom to form and join
trade unions, and to strike."
Now to governance,
the chief executive and the legislature or Legislative
Council. The Basic Law says: "The Chief Executive of the
HKSAR shall be selected by election or through
consultations held locally and be appointed by the CPG.
The method for selecting the Chief Executive shall be
specified in the light of the actual situation in the
HKSAR 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."
(Basic Law, Article 45)
There is no provision
for direct election of the executive. Annex 1 of the
Basic Law says: "1. The Chief Executive shall be elected
by a broadly representative Election Committee in
accordance with this Law and appointed by the Central
People's Government [of China, in Beijing].
"2.
The Election Committee shall be composed of 800 members
from the following sectors: Industrial, commercial and
financial sectors 200, professions 200, labor, social
services, religious and other sectors 200, members of
the Legislative Council, representatives of
district-based organizations, Hong Kong deputies to the
[Beijing] National People's Congress, and
representatives of Hong Kong members of the National
Committee of the Chinese People's Political Consultative
Conference."
Concerning the legislature, the
Basic Law says: "The Legislative Council of the HKSAR
shall be constituted by election. The method for forming
the Legislative Council shall be specified in the light
of the actual situation in the HKSAR 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." (Basic Law,
Article 68)
Concerning amendments and
interpretations, that's up to Beijing. Again, the Basic
Law: "The power of interpretation of the Basic Law shall
be vested in the Standing Committee of the National
People's Congress (SCNPC). The SCNPC shall authorize the
courts of the HKSAR to interpret on their own, in
adjudicating cases, the provisions of the Basic Law
which are within the limits of the autonomy of the
HKSAR." (Basic Law, Article 158).
"The power of
amendment of the Basic Law shall be vested in the NPC.
No amendment to the Basic Law shall contravene the
established basic policies of the People's Republic of
China regarding Hong Kong." (Basic Law, Article 159).
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