'International standards' applicable to Hong Kong

Updated: 2014-08-05 07:17

By Xiao Shi (HK Edition)

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Following the July 1 protests certain local media commentators said it was necessary to pay more attention to popular calls for "international standards" of democracy during discussions on constitutional reform in Hong Kong.

To do this it is vital to examine the relevant international principles of civil and political rights. No particular political entity or faction holds exclusive right to interpret "international standards". Were this not the case, political discussion would be dominated by reform plans devoid of any legitimate constitutional basis - divorced from the reality of Hong Kong. This would contradict what "international standards" are actually meant to be.

The United Nations General Assembly passed the International Covenant on Civil and Political Rights (ICCPR) in December 1966. The part of the covenant dealing with elections is Article 25. It says:

"Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors"

The British government approved the covenant in 1976. It also decided the covenant was applicable to Hong Kong. However Britain decided to reserve the right not to implement Article 25 in Hong Kong through formation of the Executive Council and the Legislative Council (LegCo) by democratic elections. The Basic Law of the HKSAR stipulates in Article 39 that the parts of the ICCPR applicable to Hong Kong as approved by the British government should remain effective in the HKSAR.

Some have suggested that once universal suffrage is implemented in Hong Kong the right not to comply with Article 25 of the ICCPR should automatically be annulled. This would make Article 25 the only acceptable international standard on all matters concerning elections. This would include the design of Hong Kong's electoral system. But this notion is flawed because:

1) Article 25, according to international human rights scholar Manfred Nowak, is "extraordinarily vague" about "genuine periodic elections". This means the covenant does not require one particular formula for all elections. It also means the covenant cannot be used to rule out any other electoral system.

2) The ICCPR cannot be directly applied in Hong Kong. This is because the Basic Law stipulates that parts of the covenant which are applicable to Hong Kong operate via the laws of the HKSAR. Currently it is effective in Hong Kong via the Bill of Rights, a statutory code promulgated by LegCo. As such it is not comparable, in constitutional terms, to the Basic Law. Therefore, it cannot replace the Basic Law in determining Hong Kong's future constitutional development.

3) Even if it is necessary to revoke reservations over applying ICCPR Article 25, this would have to strictly follow established legislative procedures. Universal suffrage cannot automatically nullify any law or clause of a law. The common practice of dropping reservations in the application in certain part(s) of an international covenant or UN resolution would require the central government to submit a written document to the relevant UN office stating that the HKSAR has amended the relevant law to facilitate the lifting of the reservation. So far none of these steps have been taken in regard to the ICCPR.

Although the ICCPR cannot directly affect constitutional reform in Hong Kong, it does not mean its democratic principles are irrelevant.

In fact, all Beijing think tanks believe the ICCPR brings value as a reference in regard to political developments in China.

Two important companion documents to the ICCPR also play an important role in this. They are General Note 25 passed by the UN Human Rights Commission in 1996 and Manfred Nowak's review of the covenant - ICCPR: CCPR Commentary. These two documents clarify the ambiguous parts of the ICCPR. The international community regards them as providing standards for democratic elections.

The two documents have established a few principles for elections. The first and most important is that elections must not be conducted outside the legal framework of localities where they take place. General Note 25 of the UNHRC states succinctly that elections may not deviate from the legal framework that effectively ensures the right to vote. How citizens exercise the rights protected by Article 25 of the ICCPR should be specified in a country's constitution and relevant law(s).

For Hong Kong this means the constitutional reform plan must remain within the legal framework established in the Constitution and the Basic Law. Article 45 of the Basic Law stipulates: "The ultimate aim is the selection of the CE by universal suffrage upon nomination by a broadly representative Nominating Committee (NC) in accordance with democratic procedures." This means any method of nominating CE election candidates which does not comply with the Basic Law or bypasses the NC is devoid of either constitutional basis or statutory grounds.

According to the same logic any "referendum" held without meeting all the constitutional and legal requirements will not be protected by the ICCPR. And the covenant does not recommend decisions by popular vote as a regular democratic exercise. Nowak notes in the CCPR commentary that the covenant does not ensure the right to participate in the national policy-making process. Signatories to the ICCPR are not obliged to hold referendums. But they are required to hold regular elections. As for the right to vote and to stand in elections, Nowak said this should be established in the constitution and relevant laws. Therefore any attempt to decide or change the course of Hong Kong's constitutional development through a "referendum" is unconstitutional and illegal.

This is an abridged translation of the original article published in the August issue of The Mirror magazine.

(HK Edition 08/05/2014 page9)