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GU Minkang Contributions of the “One Country, Two Systems” Policy to the Right to Peace
September 18,2015   By:
GU Minkang
Hong Kong, China

Contributions of the “One Country, Two Systems” Policy to the Right to Peace

 
I. Introduction

Modern researchers on human rights divide the evolution of human rights into three generations: The first-generation human rights refer to the civil rights and the political rights; the second-generation human rights indicate the economic, social and cultural rights; the third-generation human rights mean the rights to the environment, development and peace. 1 Thereinto, the right to peace is the most typical, representative and universal right among the third-generation human rights. In accordance with the understanding of the scholars, “the right to peace is the right of human beings to live in a peaceful environment.” As Jody Williams, a Nobel Peace Prize winner, held it that, “peace” should be defined to be the safety of the mankind (rather than the countries) which should be materialized through sustainable development, environmental justice and satisfaction of primary human needs.  
     
It should be mentioned that the right to peace was the accomplishment of the world people eager for and promoting peace after the end ofWWII. In 1978, the General Assembly of the United Nations passed the Declaration on the Preparation for Peaceful Life in All Countries and stipulated the right to peace for the first time;   In 1984, the General Assembly specially passed the Declaration on People’s Rights to Peace which declared that the right to peace was a holy right. 

Undoubtedly, China severely suffered from wars and consequently exerted all its strengths to safeguard peace. Just as the Chinese delegation stated in the general debate on Topic V at the 29th Conference of the Human Rights Council, “China positively participated in the work of the Working Team on the Right to Peace. It is of utmost urgency and vital significance to implement and develop the Declaration on People’s Rights to Peace and settle international disputes in peaceful ways pursuant to Charter of the United Nations in addressing the present international crises. Only through safeguarding peace, preventing wars and eliminating violence and conflicts can 7 human rights be fundamentally guaranteed.”

The major contribution of China to the right to world peace was the peaceful settlement of the international disputes in line with the “One Country, Two Systems” policy which sent Hong Kong and Macao to return to the embrace of the great motherland successfully and peacefully. According to the “One Country, Two Systems” policy, China and Britain had negotiated about the issues concerning Hong Kong since 1982 and both sides finally concluded the Sino-British Joint Declaration after 17 rounds of peaceful negotiation. Just as it was pointed out, “Domestically, the peaceful settlement of the Hong Kong issue complied with the national conditions and the will of the people, prevented possible social unrest during the resumption of the exercise of sovereignty, realized stable transition at a small price and benefited the long-term prosperity and stability of Hong Kong. Internationally, it avoided the resort to war or military force, stood proudly as the glorious model of the successful settlement of international problems left over by history within the framework of the International Law, won the wide acclaim of the international community and played a demonstrative and exemplary role for other countries to solve like disputes.” 1

Moreover, the peaceful return of Hong Kong also laid a solid foundation for the protection of other human rights of the Hong Kong residents. Doubtlessly, peace and human rights are tightly interdependent. A society long suffering from disputes and turmoil could not practically protect the right to peace, not to mention the human rights.

We have noticed that since the return of Hong Kong 18 years ago the Hong Kong people have fully enjoyed all the fundamental rights especially the right of the citizens to demonstration under the protection of THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’S REPUBLIC OF CHINA (hereinafter referred to as “the Basic Law”). Nevertheless we should not neglect such a fact that, without the example of the “One Country, Two Systems” policy before, the Hong Kong people and the outside world have different views on the concept and the exercise of human rights or apply different standards to judge it, which have constantly triggered many disputes and even sharp conflicts and damaged the maintenance of peace and order. Definitely, if those who had disputes had taken an objective and sensible stance, the problems should have been solved more easily. It was a pity that it was not always the case in reality. For instance, the recent speeches and standpoint of the American government on the protection of the human rights of Hong Kong people were unfair and should be clarified.

The United States Department of State issued the Report on Human Rights Practice in All Countries 2014 (hereinafter referred to as the “Human Rights Report”) on June 25, 2015. The report basically described the protection of human rights of the Hong Kong people positively. Nonetheless, on the electoral reform plan of Hong Kong, the American government merely made lip-deep depiction and censured without analyzing from the perspective of the legal principle why the framework of the National People’s Congress was unreasonable, why the candidates must support the central government and why functional constituencies should not be canceled temporarily in Hong Kong.

To further discuss the issue, here follows several related paragraphs of the original text:
On August 31, 2014, the Standing Committee of the National People’s Congress (the NPC/SC ) approved the framework for implementing universal suffrage for the 2017 Chief Executive election but prodemocracy advocates criticized the framework as undemocratic. The NPC/SC decision states       that between two and three candidates may be nominated with the approval of more than 50 percent of a Nominating Committee formed in accordance with the size, composition, and formation method of the existing 1,200 person Election Committee. Prodemocracy activists and members of LegCo criticized the framework as undemocratic because it was designed to ensure that only candidates supportive of the central government are nominated by a predominantly unelected, pro-Beijing nominating committee.

The most important human rights problems reported were the limited ability of citizens to participate in and change their government through the right to vote in free and fair elections, limitations on freedom of the press and incidents of violence against the media, and a legislature with limited powers in which certain sectors of society wielded disproportionate political influence.

The government stated that the method of selecting FC legislators did not conform to the principle of universal suffrage, but it took no steps to eliminate the FCs.

The following parts focus on the above-mentioned censure: Part II briefly introduces the status of the legal principle in Hong Kong; Part III introduces the background of the issuance of the framework; Part IV discusses the special requirements for the candidates; Part V discusses the functional constituencies; in the part of conclusion, the writer points out that the criticism of the American government and some international organizations on Hong Kong lack objective verification and legal principle analysis and should be improved.

II. The status of the legal principle in Hong Kong

A cosmopolitan city, Hong Kong is both an indispensable part of the People’s Republic of China 1 and a special administrative region of China, namely, a local administrative region directly under the jurisdiction of the central government. From the perspective of the legal principle, Hong Kong is not an independent political entity whose rights to “high degree of autonomy” (including the administrative power, the legislative power, the independent judicial power and the power of final adjudication etc) were granted by the National People’s Congress. The essence of “being indispensable” is that the chief executive and principal officials of Hong Kong should be appointed by the central government and they are obliged to safeguard the unification of the great motherland and the stability of Hong Kong. On the other hand, Chapter 3 of the Basic Law has specially stipulated that the exercise and protection of the fundamental rights of the Hong Kong people must follow the Basic Law.

III. The background of the issuance of the framework of the NPC/SC

The Decision of the NPC Standing Committee on the Election of the Chief Executive and the Legislative Council of Hong Kong Special Administrative Region and the Issues concerning General Election in 2012 passed at the 31st session of the Standing Committee of the 10th National People’s Congress on Dec 29, 2007 stipulated that the fifth chief executive of Hong Kong Special Administrative Region could be elected through general election in 2017.

Clause 2 of Article 45 of the Basic Law stipulates that, “The chief executive should be elected according to the realities of Hong Kong Special Administrative Region step by step and finally decided through general election after the nomination by a broadly representative Nominating Committee in a democratic process.” It spells out several pivotal prerequisites. The first one is that the chief executive should be elected in line with the “realities” of Hong Kong and the Nominating Committee will “nominate” the candidates for general election.

Nonetheless, it was on the principle of “universal and equal suffrage” stipulated in Article 25 of the International Covenant on Civil and Political Rights that a handful of Hong Kong people ignored the stipulations of the Basic Law, criticized that the Nominating Committee selected the candidates in a small circle of people, preached “nomination by the citizens” or “nomination by the political parties” and even brought forth “disobedience of the citizens to orders”. But they would rather ignore the stipulation of “without unreasonable restrictions” in the article. A non-independent political entity, Hong Kong should necessarily consider the “realities” of Hong Kong and the reasonable restrictions on the characters and morals of the chief executive candidates stated in Article 45 of the Basic Law. For instance, the chief executive candidates must “love the People’s Republic of China and Hong Kong” rather than confront with the central government and must positively act as a go-between of the central government and Hong Kong. Only the Nominating Committee is qualified to select such personages and check on the candidates’ competence in handling the risks of political confrontation, constitutional crises and populism.

Consequently, to avoid ambiguity and argument, the NPC/SC made “The Decision on the 2016 Executive Election and the Legislative Council Election of Hong Kong Special Administrative Region” on Aug 31, 2014. Article 2 of the Decision points out that, when the chief executive of Hong Kong Special Administrative Region is elected through general election, (I) a broadly representative Nominating Committee should be set up. The size, composition and election methods of the Nominating Committee should conform to the regulations on the election of the electoral committee for the fourth chief executive; (II) the Nominating Committee should nominate and elect two or three chief executive candidates in the democratic process and each candidate should win the support of more than 50 percent of all the Nominating Committee members; (III) potential electorates have the right to vote for the chief executive of Hong Kong Special Administrative Region from the candidates by law; (IV) the suitable candidate for the chief executive should be appointed by the central government after general election.

It’s a pity that the framework made by the NPC/SC to formulate the 2017 general Executive election program was vetoed by the senators “advocating democracy and general election” at the midday on June 18, 2015. A gang of senators “advocating ‘democracy’ and general election” deprived the 5million voters in Hong Kong of the right to general election for the chief executive in the method of “one man, one vote”. The performance of the personages “advocating democracy and general election” set up an exceedingly negative example in the electoral reform: The “democrats” ignored democracy in disregard of the mainstream public opinion; the legal personages “advocating ‘democracy’ and general election” arbitrarily juggled with the law and misled the public; the senators “advocating ‘democracy’ and general election” breached their oaths and brazenly went against the Basic Law (especially Article 45).
When the American government censured that “The most important human rights problems reported were the limited ability of citizens to participate in and change their government through the right to vote in free and fair elections”, it must be impartial or at least discern between right and wrong.

IV. The freedom of the media of Hong Kong

According to what have been observed, the degree of freedom of the media of Hong Kong takes the leading position in the world and almost everyone in Hong Kong can criticize the chief executive and the Hong Kong government through the media. Even (public-owned) Radio Television Hong Kong sponsored by the Hong Kong government often puts on a rival show against the Hong Kong government, through which the degree of its freedom can be conspicuously noticed. Since the return of Hong Kong to the great motherland, the free environment of its media has not ever changed in essence. What a man of the media said eight years ago still holds true even today, “The government of Hong Kong Special Administrative Region tolerates the existence of all sorts of media in Hong Kong, including some alternative media famous for their improper speeches.” 1 As a matter of fact, Hong Kong should pin more attention to the ways of upholding objectivity and professional stance rather than mislead the people due to their own inclinations.

The “incidents of violence against the media” in Hong Kong were purely separate events which could not indicate that the government suppressed the freedom of the press in the slightest.

V. The issue concerning the functional constituencies of the legislative council

The legislative council has the legislative authority to retain the functional constituencies before the senators of the legislative council can be elected through general election. When the British government joined the International Covenant on Civil and Political Rights in 1976, long before the return of Hong Kong to the motherland, it retained Clause 2 of Article 25. Accordingly, a feasible conclusion is that the universal and equal election may be a higher state in a democratic society but the practice of retaining the functional constituencies should not be regarded as going against the Convention on Human Rights.

The Chinese and British governments signed the Sino-British Joint Declaration in 1984. Article 13 of Specifications of the People’s Republic of China on the Fundamental Policies over Hong Kong, Annex 1 of the Sino-British Joint Declaration, points out that, “the stipulations in International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights applicable to Hong Kong are still effective.” That is to say, the retained part of Convention on Human Rights would continue to take effect. It was written in the Basic Law and became the regulations in Article 39.

It is considered that the existence of functional constituencies violates the principle of “universal and equal” election. There are two responses to it. Firstly, Articles 45 and 68 in the Basic Law applied the wording of “general election” rather than “universal and equal election” probably in consideration of the retained Clause 2 of Article 25 of the Convention on Human Rights. Therefore, general election and “universal and equal election” should be two different concepts; general election refers to the voting method that “everyone has a vote” and equal voting means “one man, one vote”; they are two different concepts. Secondly, since the general election of the legislative council is under the leadership of the Basic Law, “general election” may be transited to “universal 14 Liu Changle. The Free Environment of the Media of Hong Kong Did not Change. June 26, 2007, http://www.ycwb.com/xkb/2007-06/26/content 1527110.htm
15 ”The British government reserves the right not to implement Clause 2 of Article 25 to establish the executive council or the legislative council through election in Hong Kong.”

and equal election” only when general election of the legislative council can be implemented in 2020.
If the British government set the functional constituencies so that the British Hong Kong Government could delay the process of democracy, the Basic Law allowed retaining the functional constituencies after considering the special conditions of Hong Kong. In accordance with the “One Country, Two Systems” policy, Hong Kong was allowed to reserve the capitalist system for 50 years invariably. Since the personages of the functional constituencies have the critical right to speak for the economic lifeline of Hong Kong, the participation of such personages can better guarantee the prosperity of the capitalist economy. Definitely, nothing is always invariable. Once the legislative council would adopt general election, the functional constituencies might be no longer in existence.

VI. Conclusion

The peaceful return of Hong Kong to China does not mean that the “One Country, Two Systems” policy will be smoothly implemented. Many details should be further refined and the debates will go on. Nevertheless, as long as we uphold objectivity and sensibility, we will make correct judgment and compromise. What should be especially pointed out is that the electoral reform of Hong Kong is China’s internal affair without the need of the involvement of foreign governments. Definitely, the American government might have other considerations about it and consequently interfered with the matter constantly. Politically, the American government once offered “moral support” to the opposition faction on the issue of the electoral reform of Hong Kong. It is reported that Anson Chan and Martin Lee Chuming, who were bigwigs of the opposition faction in Hong Kong, “happened to meet” Joe Biden, vice president of the United States, during their visit in the United States in April 2014; Russell, assistant secretary of state of the United States Department of State in charge of the affairs in East Asia and Pacific had a meeting with the opposition faction alone during his visit in Hong Kong in May 2014. 1 Now the American government has published irresponsible speeches on the electoral reform in Hong Kong by means of the report on human rights, which has led the public opinion astray and must be rectified.

(The author is Professor and Associate Dean of School of Law, City University of Hong Kong)