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The IBA’s response to the situation in Ukraine
Following the so-called Umbrella Movement, a series of student protests in 2014 over electoral reform, a number of new pro-democracy political parties have emerged in Hong Kong, including Demosisto and Youngspiration.
These parties performed particularly well during the election for the sixth Legislative Council of Hong Kong (LegCo) on 4 September 2016, which saw a record turnout of registered voters. Hong Kong-based solicitor Doreen Kong says: ‘People are longing for change. They are not happy with the way things are right now.’
In the run-up to the election, six pro-democracy candidates were banned from running for LegCo for refusing to acknowledge Hong Kong as an inalienable part of China – as stipulated in Articles 1, 12 and 159(4) of the Basic Law. During the swearing-in ceremony a month later, Sixtus Baggio Leung Chung-hang and Yau Wai-ching of Youngspiration swore allegiance to the ‘Hong Kong nation’ and were subsequently stripped of office after a legal challenge from the Hong Kong government.
‘People are getting more irrational at the moment,’ adds Kong. ‘They are losing patience in listening to views and comments – especially those from the other side – and, with that, they cannot address the needs of Hong Kong in the long run. Expressing frustration, anger and opposition seems to be their major agenda, as shown by the behaviour of pan-democrat legislators in the last term and the oath-taking incident.’
Despite the Hong Kong government applying for a judicial review over the oath dispute, Beijing seized the opportunity to lay down a marker against public officials advocating independence. On 7 November 2016, before the Hong Kong Supreme Court ruled on the matter, the Standing Committee of the National People’s Congress (NPCSC) provided an interpretation of the provisions under Article 104 of the Basic Law that seemed to suggest that any pro-independence legislator would have no place in LegCo.
Hong Kong-based solicitor
Many in Hong Kong, including the Hong Kong Bar Association (HKBA), were quick to condemn Beijing’s move, arguing that it seriously impacted on the territory’s judicial independence. The HKBA said the NPCSC interpretation would ‘seriously undermine’ the confidence of Hong Kongers and the international community in the ‘one country, two systems’ policy – and therefore the rule of law – which guarantees Hong Kong a high degree of autonomy.
Although calls for democratic reform in Hong Kong have led to unprecedented tensions and divisions over the last four years, the goal of democracy in the territory is not a new concept. The development of representative government in Hong Kong dates back to the years following the Second World War, when Governor Sir Mark Young argued for the same process of democratisation that was being rolled out in other British colonies.
The famine caused by the Great Leap Forward and the discord of the Cultural Revolution then saw Hong Kong play host to wave after wave of refugees from mainland China, which created administrative priorities other than democratic reform.
Given the lack of natural resources in Hong Kong, the influx of immigrants provided the cheap labour that enabled the territory to become a leading manufacturing centre. Hong Kongers were the direct beneficiaries, which diluted calls for democratic change. It wasn’t until the late 1970s, with the prospect of the transfer of sovereignty looming, that local attitudes changed.
In his book, East and West, Hong Kong’s last Governor, Chris Patten, says that, while successive UK governments were consumed with the problem of mass immigration to the territory from the Chinese mainland in the 1950s and early 1960s, they were also sensitive to concerns among senior Chinese officials that reform might one day lead to delusions of independence.
Commenting on current developments in Hong Kong, Patten has suggested that calls for independence only diluted support for democracy: ‘Instead of Chinese officials having to argue against democracy, they’re given a much easier job of arguing against independence.’
Hong Kong’s current Chief Executive CY Leung surprised nearly everyone on 9 December 2016 when he announced he would not be seeking re-election in the upcoming campaign for the territory’s top job. The agency that oversees Hong Kong affairs under China’s State Council acknowledged Leung’s important contributions to Hong Kong’s social and political stability.
However, while Leung’s management of Hong Kong’s economy and his efforts to improve the lives of the population have divided opinion, it is his handling of democratic reform that lost him the support of many. Although he delayed dealing with the issue for as long as he could, Leung’s hand was forced by the National People’s Congress’ commitment – as part of the 1984 Sino-British Joint Declaration – to elections with universal suffrage by 2017.
Former Governor of Hong Kong
Leung’s subsequent reform package was proposed by the NPCSC, and included the provision that any candidate for Chief Executive had to be pre-approved by Beijing. This decision was seen by many as a betrayal of the 1984 Declaration, and the resulting Umbrella Movement protests in 2014 had the effect of engaging young Hong Kongers in the pro-democracy movement as never before.
The NPCSC will almost certainly continue its hard line towards democratic development in Hong Kong while President Xi Jinping remains in power – meaning that Hong Kong’s next Chief Executive will inherit a hot potato.
Of the current list of candidates for the top job, former Financial Secretary John Tsang and current Chief Secretary Carrie Lam are considered the frontrunners. Former Security Secretary Regina Ip, meanwhile, is the only candidate to have previously taken part in direct elections. The final candidate is former Judge and a former chairman of the Electoral Affairs Commission Woo Kwok-hing. Woo has said he will protect Hong Kong’s rule of law and consolidate its judicial independence – though he is seen by many to be an outsider.
Whichever candidate ultimately prevails, he or she is likely to try to heal the divisions in Hong Kong society by focusing on the economy, as well as on livelihood issues such as giving workers more paid statutory holidays.
John Vernon, former Chair of the IBA Human Rights Law Working Group and a partner at Lewis Brisbois Bisgaard & Smith, says the incoming new administration needs to explore common ground with the academic and professional guilds and stay united. ‘They need to find representatives of like-minded beliefs and form a coalition. They need to drop the blank ballot movement and work for real change. This election gives them a tremendous platform to begin the hard work of consensus building.’
To do that effectively, Wang Guangya, Director of the agency that oversees Hong Kong affairs under China’s State Council, has stated that Hong Kong’s next leader must be someone that Beijing can trust.
Kong adds: ‘The whole of society has changed over the past two decades. People forget how to work together. According to [political economist] Elinor Ostrom, one of the important elements for successful collective action in public administration is trust. Without trust, we can only identify problems but not solutions.’
Partner at Lewis Brisbois Bisgaard & Smith;
Chair of the IBA Human Rights
Law Working Group
But, after years of slow economic growth, income stagnation and rising wealth inequality, there is precious little trust to go around. When the pan-democrats secured 326 seats in last year’s Election Committee (compared to 205 seats in 2011), many commentators saw a strong parallel with the growing trend against the establishment elite in parts of the West.
While a more democratic and transparent government in Hong Kong would soothe the professional and young, Kong says that democracy is not the medicine for all of the territory’s current symptoms. ‘We have a lot of social and administrative problems to be solved, and we have a lot of things to be fixed in our policies and systems. We have a lot to catch up on with our competitors. Worst of all, we do not have too much time to train real and capable leaders in public administration.’
Hong Kong is expected to focus on healing divisions by improving livelihoods, in the hope that this will be sufficient to quell growing local calls for democratic reform, as it has in the past.
Stephen Mulrenanis a freelance journalist based in Hong Kong. He can be contacted at email@example.com.