Written by Michael C. Davis.

The global media has recently been fixated on a number of seemingly intractable constitutional impasses that have given rise to crises around the world. These impasses have been rooted in complex ethnic and social histories in such diverse places as Thailand, Ukraine and Egypt. It has recently been very surprising to see Asia’s financial capital, Hong Kong, potentially lining up to join the list.

The impasse in Hong Kong is primarily driven by the Beijing and Hong Kong governments’ lack of resolve to fully implement the democratization promised in both the Sino-British Joint Declaration and the Hong Kong Basic Law.

The Basic Law provides: “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.” The Basic Law contains a similar commitment to universal suffrage for the Legislative Council.

Annexes to the Basic Law appeared to allow this to be achieved from 2007 but Beijing’s 2004 interpretation emphasizing “gradual and orderly” progress held back these reforms. Beijing has clearly been dragging its feet on democratic reform and the Hong Kong Government, widely perceived as doing Beijing’s bidding, has in various reports encouraged these delays.

In December 2007 Beijing issued an interpretation indicating that universal suffrage for election of the Chief Executive can be implemented for the Chief Executive election in 2017 and afterwards for the Legislative Council in 2020. This shifted the debate more clearly to the content of “universal suffrage.”

Mr Li Fei, the mainland Chair of the Basic Law Committee, an advisory committee under the Basic Law, has recently sought to problematize the notion of universal suffrage under the Basic Law. He has offered guidelines that would require nominated candidates to “love China, love Hong Kong,” require a collegial decision by the nominating committee, limit the number of candidates to be nominated, and require that the nominating committee be modeled on the existing Election Committee.

The first of these guidelines is interpreted locally to suggest some system of vetting candidates for loyalty to Beijing and possibly precluding nomination of candidates from the more popular democratic camp. This would go beyond normal requirements of a clean criminal record and oath taking.

Efforts to require a collegial decision, limit the number of candidates and embrace the Election Committee model are an indirect path to the same purpose. The Election Committee has never been broadly representative, always embracing pro-Beijing candidates by wide margins. If the “democratic procedure” for the nominating committee involves a substantial popular vote within an unrepresentative committee then only pro-Beijing candidates would emerge.

The recent Hong Kong Government consultation document on “Methods for Selection of the Chief Executive in 2017 and the Legislative Council in 2016” appears to embrace these guidelines. This raises great public concern about government efforts to manipulate future election outcomes.

Democratic forces in Hong Kong have mobilized to uphold Basic Law democratic commitments. In defining universal suffrage they especially rely on binding ICCPR requirements guaranteeing the right “to vote and to be elected on the basis of universal and equal suffrage.”

The Government’s lack of resolve on democratic commitments has generated widespread distrust of government intentions and has severely divided both the pro-democracy and pro-government camps.

In past years pro-democracy parties sought mostly to assure that a pro-democracy candidate could be nominated. But years of government foot-dragging and manipulation have generated wide distrust and a proactive willingness to hold the Government’s feet to the fire.  Leading the charge has been the Occupy Central movement, promising to occupy and presumably obstruct the streets of Hong Kong’s central financial district next summer if the Government has not put forth a satisfactory democratic model. This occupation would be strictly non-violent and would presumably not materialize if the Government adheres to its democratic commitments.

The severe distrust of the two governments’ intentions has seemingly reduced moderation in the democratic camp, as various factions seem set to mobilize against Government manipulation. Simply having a nominating process that assures that democratic candidates can be nominated is no longer fully trusted. To achieve sufficient public oversight various democratic factions, including a leading group of democratic legislators, now call for public nominations and political party nominations that would be binding on the nominating committee. These proposals have divided the democratic camp and risk rejection for non-conformity to the Basic Law language quoted above.  They have also allowed the pro-government camp to focus its response on the problem of non-conformity with the Basic Law rather than the substance of universal suffrage.

The government camp has likewise faced divisions.  The Hong Kong Government has faced great difficulty gaining public confidence, as it appears intent on adhering to Beijing’s alleged guidelines. Reports that Beijing may, in the face of Occupy Central type demonstrations, deem Hong Kong ungovernable or in turmoil and invoke provisions for interference and application of mainland laws under Basic Law Article 18 has caused disquiet.

With the hindsight of other mass demonstrations in past years over Article 23 and otherwise, even pro-government politicians that submit themselves to the voters will surely worry about the loss of legitimacy that may flow from fake elections. While the louder pro-Beijing sector often voices its concerns about too much democracy it remains to be seen whether more moderate pro-government skeptics will effectively convey their concerns over electoral legitimacy to the Central Government.

What seems very clear in this impasse is that the two governments bear primary responsibility for any alleged “turmoil” that may result from their failure to carry out their democratic commitments. Hong Kong clearly cannot benefit from the perception of failed autonomy that would flow from a fake election. There is a need for the government and its supporters to appreciate the public anxiety that lurks behind the calls for public nominations. At the same time responsible democratic leaders will need to keep their eye on the target of having truly democratic candidates presented to the voters.

Adherence to the Basic Law will ultimately serve Hong Kong’s interest. This should require meeting the requirements that the nominating committee indeed be broadly representative. Democratic nomination procedures should at a minimum meet the standards of universal suffrage allowing qualified candidates to be nominated and presented for the public vote.

There appears to be nothing in the Basic Law that would prohibit a public role in the nominating process, as might ease public concern.  This might include assurances of nomination of qualified candidates with a sufficient number of public signatures. Such could be assured of nominating committee approval for formal nomination. The nominating committee would perform its role of assessing the documents presented and the basic qualifications of the candidate. This should not be a role of obstruction but facilitation of popular choice. There is no need to limit the number of candidates since some would surely emerge as leaders. Ultimately, a runoff of the two leading vote-getters can be held if no candidate gets fifty percent of the vote in the first round.

Should a popularly elected Chief Executive be unacceptable to Beijing is a frequent source of concern to the latter. Yet, one should doubt that Beijing is so fragile and one should trust the pragmatism of Hong Kong voters. That pragmatism is surely a better bet for the Beijing and Hong Kong governments than fomenting a constitutional crisis in Hong Kong in order to avoid popular choice.

Michael C. Davis is a Visiting Professor at the Faculty of Law, Hong Kong University.