China

Hong Kong’s Election Overhaul in Context

By Jackson Neagli
Monday, April 5, 2021, 10:52 AM

On March 30, Chinese lawmakers passed legislation that will dramatically overhaul Hong Kong’s electoral system. That legislation—which takes the form of amendments to Hong Kong’s Basic Law—does not stand alone: It appears to be the third in a recent raft of laws that consolidate Beijing’s control over Hong Kong, formally a Special Administrative Region of the People’s Republic of China (PRC). 

To better understand the election amendments and their potential effects, it’s important to understand both the current context and prior developments that have led to the legislation’s adoption.

The (Proposed) Extradition Law

In February 2019, Hong Kong lawmakers proposed the first relevant piece of legislation, a law that would allow extradition of suspected criminals to mainland China, sparking concern regarding the autonomy of the Special Administrative Region. Millions of Hong Kongers took to the streets in protest against the extradition law, leading Hong Kong Chief Executive Carrie Lam, appointed to lead the executive branch by the 1,200-member Election Committee in 2017, to formally withdraw the bill in September 2019. For more information on the protests, which began in March 2019 and extended through October of the same year, the BBC and Reuters have compiled informative timelines with key dates throughout the 2019 protests, including the July 1 storming of the Legislative Council (Hong Kong’s legislature). 

The anti-extradition protests eventually morphed into a larger pro-democracy (and in some instances, pro-independence) movement. In the November 2019 district council elections, which were widely perceived as a referendum on the protests, pro-establishment candidates won only 58 of 452 available seats, losing the vast majority of the 300 seats they had previously controlled. Pro-democracy candidates won 389 seats, shattering their record high of 198 seats in 2003, which also came on the heels of large protests against a proposed national security law.

The National Security Law

Even before the pro-democracy landslide in November 2019, the Fourth Plenum of the Chinese Communist Party’s (CCP’s) 19th Central Committee, a powerful political decision-making body and “board of directors” for the CCP, began taking steps (link in Chinese) to expand central control over Hong Kong in the absence of the scrapped extradition law. While no decision was made at the Fourth Plenum to establish replacement legislation, over the coming months the State Council (essentially China’s cabinet) secretly drafted a report recommending new national security legislation for Hong Kong. A National Security Law was ultimately approved by the National People’s Congress (NPC) in May 2020 and formally passed by the National People’s Congress Standing Committee (NPCSC) in June, following an irregular two meetings of that body in the same month. 

The NPCSC listed the National Security Law in Annex III of Hong Kong’s Basic Law (essentially Hong Kong’s mini-constitution), allowing it to be assimilated into Hong Kong’s “domestic” law, and was subsequently gazetted by Chief Executive Lam on June 30. The text of the law—which was not made public until after its formal adoption—entailed a dramatic extension of central government control. 

Procedurally speaking, the National Security Law prevails over conflicting provisions of Hong Kong law (Article 62), and the NPCSC retains the power to issue legal interpretations of the legislation (Article 65). In substantive terms, Article 55(3) permits the Central People’s Government to exercise jurisdiction over cases where “a major and imminent threat to national security has occurred,” essentially vitiating the need for the scuttled extradition law, while Article 57 provides that the PRC Criminal Procedure Law and “other related national laws” will apply to matters arising under the National Security Law. Articles 12-15 require Hong Kong’s establishment of a Committee for Safeguarding National Security, including a national security adviser designated by the Central People’s Government. This U.S. Congressional Research Service report provides additional background information on China’s National Security Law for Hong Kong.

Broadly, the National Security Law criminalizes “secession,” “subversion of state power,” “terrorism” and “collusion with foreign entities,” with penalties including imprisonment for life. The first arrests under the law occurred only hours after its promulgation, targeting protesters who displayed separatist stickers and pro-independence flags. In February 2021, eight months after the law’s promulgation, Hong Kong authorities charged 47 pro-democracy activists in a single day, all with “conspiracy to commit subversion.”

The Election Amendments—Recently Approved by the NPCSC 

In early 2021, another initiative to consolidate central control over Hong Kong began to take shapethis one aimed explicitly at Hong Kong’s political process. In February, a month prior to the annual NPC meeting, state media reported that the head of the State Council’s Hong Kong and Macau Affairs Office had delivered remarks at a symposium regarding “the fundamental principle of ‘patriots governing Hong Kong.’” According to that state media report, a key takeaway from the symposium was that “Hong Kong’s current electoral system can not [sic] provide a strong institutional guarantee for comprehensively implementing the principle of ‘patriots governing Hong Kong’ and prompt measures are needed to plug the loopholes.” Two weeks later, when the NPC released its session agenda, among the 13 items included was “[d]eliberate a draft NPC decision on improving the electoral system of the Hong Kong Special Administrative Region.” 

Chief Executive Lam, who attended the NPC session, welcomed the agenda item. On March 4, Lam indicated that she would fully cooperate with the Central People’s Government in fixing “deep-rooted loopholes” in Hong Kong’s current political system, a sentiment echoed by Hong Kong’s delegates to the NPC session.

The National Security Law had also hinted at changes to Hong Kong’s legislative process. Article 6 required that candidates and legislators-elect swear allegiance to both Hong Kong and the PRC (a prior source of controversy), and Article 35 disqualified anyone convicted under the National Security Law from elected office. Indeed, in November 2020, four pro-democracy legislators were expelled from the Legislative Council, prompting 15 of their colleagues to resign in solidarity. 

Moreover, the 47 arrests executed under the National Security Law in February 2021 targeted Hong Kong’s electoral process: The charge of “conspiracy to commit subversion” stemmed from an unofficial primary held in July. Those arrested included Benny Tai (the scholar/activist who organized the primary) and primary winners Tiffany Yuen, Owen Chow and Eddie Chu. Yuen is a current district councilor, and Chu, a former Legislative Council member.

The vice chairman of the NPCSC, Wang Chen, highlighted Hong Kong electoral “reform” in his remarks at the opening session of the NPC on March 6, explicitly linking the initiative to “turbulence over the [extradition] bill in 2019,” and the subsequent use of “the Legislative Council and District Councils … to blatantly carry out anti-China and destabilizing activities.” Prior to the NPC session, two “loopholes” in particular were highlighted by state media: first, the “politicization” of district council elections (dominated in 2019 by pro-democracy candidates), and second, insufficiently trained legislators unable to “handle the principle of ‘only patriots governing Hong Kong.’” The NPC’s decision on the election amendment agenda item is essentially tailored to these two “loopholes.” Relying in part on the National Security Law as legal authorization, the NPC decision contemplates substantial revisions to Annexes I and II of Hong Kong’s Basic Law, which relate to the selection of the chief executive and formation of the Legislative Council, respectively. (Invaluable explainers on the NPC decision and NPCSC revision—summarized in relevant part below—are available from NPC Observer here and here.)

Annex I to the Basic Law dictates the composition of Hong Kong’s Election Committee, which in turn selects the chief executive. That annex currently stipulates that the Election Committee shall have 1,200 members, 117 of whom shall be selected by the district councils. With their current majority of district council seats, pro-democracy district councilors would be able to select all 117 of those Election Committee members under the plurality-at-large voting scheme. The NPC decision would rewrite Annex I to expand the Election Committee to 1,500 members, while reducing the number of seats elected by the district councils. The NPC’s decision would also expand the number of Election Committee seats occupied by members of pro-Beijing “national organizations,” including the Chinese People’s Political Consultative Congress, the All-China Women’s Federation, and the All-China Federation of Industry and Commerce. A brief explainer regarding the Legislative Council’s “functional committee” system for electing legislators prior to the recent amendments is available from The Diplomat, here.

With respect to Annex II of the Basic Law, the NPC decision will expand Hong Kong’s Legislative Council from 70 members to 90 members. If the number of popularly elected seats in the legislature is not increased—30 are currently elected by geographic constituency and 5 by district councils—this would dilute the representativeness of the legislature. Additionally, the decision indicates that the further-skewed Election Committee will play a role not only in selecting the chief executive (as it currently does) but also in nominating and electing some unspecified number of Legislative Council members. 

The revisions to Annexes I and II would appear to target the first “loophole” in Hong Kong’s current electoral system as identified by Chinese state media—the “politicization” of district council elections. By decreasing district councilors’ influence in the Election Committee, the Central People’s Government can dilute the impact of the popular vote in nominating and selecting the chief executive and Legislative Council members. This dilution—combined with the establishment of the “national organization” bloc—will give pro-Beijing loyalists greater control over the nomination and election of Hong Kong’s legislators and executives. 

The second “loophole”—“insufficiently trained legislators”—is addressed by the NPC decision’s establishment of a Candidate Qualification Review Committee, to be responsible for “reviewing and confirming the qualifications of candidates for Election Committee members, the Chief Executive, and Legislative Council members.” Article 5 of the NPC decision notes that the review should guarantee that candidate qualifications conform with the National Security Law, ostensibly Article 35 regarding the candidacy of individuals convicted under the law. While detailed guidelines for the Review Committee remain nebulous, it appears to be tailored to the purpose of excluding candidates who, in Beijing’s view, are “insufficiently trained.” Notably, the Legislative Council’s returning officers had already disqualified 12 pro-democracy lawmakers from running in the now-postponed 2020 Legislative Council election, in part because of the lawmakers’ objection to the National Security Law. The Hong Kong government outlined the basis for the returning officers’ decision in a press release published on July 30, 2020, which detailed that the government does “not rule out the possibility that more nominations would be invalidated.” 

Where Do We Go From Here?

Days ago, the NPCSC considered the “revisions” to Hong Kong’s Basic Law (which will essentially replace current Annexes I and II) at its March 29-30 session. After discussing the Basic Law amendments on March 29, state media reported that “people familiar with the matter” expected the final version of the revisions to be unveiled on March 30. That’s exactly what happened: The NPCSC passed revisions to Annexes I and II of the Basic Law, which were promulgated by President Xi Jinping on the same day. The text of the revised annexes was officially released in Chinese here (Annex I) and here (Annex II). Per Article 9, the NPC’s decision went into effect as soon as it was promulgated. Hong Kong’s representative on the NPCSC, Tam Yiu-chung, has indicated that local legislation would be revised to conform to the revisions “by the end of May.” 

As expected, the revisions included the following changes:

  • Expands the Legislative Council from 70 to 90 seats: 40 of which are selected by the Election Committee, 30 from functional constituencies, and 20 directly elected. This change decreases both the raw number (from 35 to 20) and proportion (from 50 percent to less than 25 percent) of directly elected representatives on the council.
  • Increases the size of the Election Committee from 1,200 to 1,500 by adding 300 Hong Kong delegates to the NPC and Chinese People’s Political Consultative Conference.
  • Scraps the 117 seats on the Election Committee reserved for district councilors, replacing them with pro-Beijing constituencies.
  • Establishes a 10-seat or fewer Candidate Qualification Review Committee to ensure that only “patriots” can run for the Legislative Council or chief executive.
  • Entitles the Hong Kong Committee for Safeguarding National Security (a central government organ established by the National Security Law) to advise the Candidate Qualification Review Committee in determining the eligibility of candidates for election.

The AP published a brief explainer of the key changes here.

Prior to the NPC’s adoption of the legislation, Chinese state media predicted that the implementation of the election amendments would be complete within “one or two months,” that is, before Legislative Council elections scheduled for September 2021. Chief Executive Lam, however, has indicated more recently that implementation of the law could further delay Legislative Council elections. Those elections, originally scheduled for September 2020, have already been delayed once due to the coronavirus pandemic—though pro-democracy lawmakers protested the postponement as a political strategy to stymie their momentum following a historical 2019 showing. Though Lam declined to set a date for the postponed elections, she indicated that they would not take place until after the new Election Committee had been formed.

Following the NPCSC approval, Lam announced that elections for the newly expanded Election Committee would be held in September 2021, followed by the Legislative Council election in December.

While it is impossible to determine exactly how the law will be enforced, the NPC decision has important implications for China’s domestic and international political outlook moving forward. 

Domestically, the election amendments appear to align with CCP Secretary General and PRC President Xi Jinping’s emphasis on his unique brand of “Socialist Rule of Law with Chinese Characteristics” (⾛中国特⾊社会主义法治). Xi recently published an article on the subject in the CCP’s leading journal, which was met with state media fanfare. While the article doesn’t mention Hong Kong, it puts a premium on the “modernization” of national governance in line with “rule of law,” and the NPC decision could be analyzed through the lens of “modernizing” Hong Kong’s political system through law to make it more responsive to Beijing. 

The NPC decision also has an international dimension. In his remarks at the opening session of the NPC justifying the election overhaul, Wang Chen decried “foreign countries and external forces … blatantly meddl[ing] with Hong Kong affairs.” Indeed, Beijing blamed “black hands” and “foreign forces” for sparking unrest in Hong Kong following the proposal of the extradition law, and has played up the “foreign interference” narrative in the wake of multilateral statements condemning the NPC decision. These themes were also highlighted by state media in coverage of the Basic Law amendments’ formal passage and promulgation by the NPCSC and Xi. More specifically, the NPC decision has also shed some light on Beijing’s view of the Sino-British Joint Declaration, which ended British control over the then-colony. The U.K. Parliament released a helpful report on the declaration following the wave of protests in 2019, noting that “Chinese officials have, in recent years, challenged the status of the Joint Declaration.” Following U.K. Foreign Secretary Dominic Raab’s statement that the election amendments constitute a “further clear breach of the legally binding Sino-British Joint Declaration,” Chinese state media responded that “all rights and obligations of the British side under the Sino-British Joint Declaration were completed.” 

But Beijing’s interpretation of the declaration is at odds with a number of its provisions. Most notably, Article 3(12) explicitly stipulates that the declaration and the consequent Basic Law would “remain unchanged for 50 years” following the handover, which occurred in 1997. And China’s unilateral termination of the declaration would further controvert Articles 7 and 8, by which it and its annexes purported to be equally binding on the parties. Raab renewed his protest on March 30, following the formal passage and promulgation of the law.

While the implementation of the election amendments remains to be seen, it is now clear—if it wasn’t after the National Security Law passed last year—that Beijing prioritizes deepening central control of Hong Kong over potential domestic and international political costs. This sense of priority is evident in the margin by which the overhaul passed the NPC and the NPCSC: Of the roughly 3,000 lawmakers who voted on the legislation in both bodies, not a single one opposed.

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