"Mistakes were Made":  Analyzing pan-democratic and pro-Beijing negotiation tactics and errors during the current round of constitutional reform

Paper delivered by:

Michael DeGolyer

Professor, Government & International Studies,

Director of the Masters in Public Administration Programme, HKBU.

to 

Hong Kong Political Science Association Annual General Meeting Conference

30 August 2014

 

 

In my classes on the World Trade Organization I teach negotiation skills and require reading of case studies that examine disputes and negotiations.  The class involves critiques of both successes and failures of negotiations and disputes.  A class exercise requires students to assume the role of a negotiator of a specific country in a specified dispute wherein their grade depends on their faithfully defining and advancing “their country’s” interest in negotiations.  The technique of role play, and arguably of negotiation, depends of the success of a person “putting oneself in other’s shoes” and being able to see the other side’s, or all sides, views.  The obligation of a teacher and scholar similarly is to see all sides of an issue and fairly present and critique all views.  Understanding precedes and is critical to persuading others.  This is the spirit of this paper.

 

This paper also assumes that the current round of negotiations, given the polarized stances of the Pro-Beijing and Pan-Democratic groups, will fail to result in amendment to the Basic Law.  The points below are presented in no particular order.

 

 

Pro-Beijing negotiation errors:

 

1.  Mistakes in consultation methods:  A Consultation Report and Chief Executive report to the Standing Committee that ignores scientific means of establishing public views. It used vague terms to describe “mainstream views” without any means of proving the views are actually “mainstream” (whatever that means).  Regular consultations are designed to get input from interested and affected parties.  Constitutional reforms are different from typical policy consultations in that all parties are interested and affected, by definition, even if they do not know it, including coming generations.  Therefore many entities commonly use extraordinary referenda and scientifically conducted polls as more effective means of determining constitutional options and opinions.  An independent, balanced and representative panel of experts and respective statespersons to conduct consultations and summarize a reform report would be a more generally accepted means forward.  When a government lacks credibility, it cannot improve that credibility by insisting on its credibility, nor can using ordinary methods for extraordinary changes be persuasive.

 

2.  Mistakes in consultation methods:  Constitutional reforms being led by an interested party automatically raise suspicions.  CY Leung may run in 2017, and thus the provisions of reform may be subject to manipulation in his interest.  Leung should have declared he would not accept nomination and would not run if nominated.  The reforms would be for his successor, not himself.  This is the only way a sitting member of government can lead a consultation.  Deferring to the Chief Secretary for Administration is not an adequate solution.  Constitutional reforms need leadership by non-interested, non-partisan persons.  The seemingly deliberate torpedoing of the current round, resulting in no change in the procedures by which Leung was elected in 2012, cast grave doubts on the good intentions of the Chief Executive to put through reforms that might have seen him denied a second term.

 

3.  Mistakes in state-society relations:  Obvious mainland manipulation of pro-establishment sentiment took place.  All the fears of many Hong Kongers who do not want political coercion of their lives have been enlivened by political campaigns putting pressure on them to march or sign or otherwise act on issues they would prefer not to.  The genuine nature of sentiments of pro-establishment marchers and signers was called into doubt by widespread reports of coercion and confusion as to the purpose of the petition and the marches.  This coercion reminds many in Hong Kong of why they or their relatives fled the mainland to Hong Kong during the Cultural Revolution and during other political campaigns on the mainland.  Neither “red terror” nor “white terror” is acceptable as a means to marshal support.  Conscience should not be, and legitimacy cannot be, coerced. 

 

However, Pan-Democrats need to recognize that the Central Government has conceded on the means and metrics of decision making—e.g. public support, public marches and petitions/referenda.  This is a “democratic culture” step forward from appeals to authority only (the White Paper on Hong Kong issued in June).

 

4.  Mistakes in political strategy:  Neglect of moderate centrists who support compromise within the parameters set by the Central Government has been ongoing since 2010.  Central Government did nothing to encourage the DAB, for example, to let DP and PP go head to head in selected District Council races and encourage DAB supporters to vote for the DP moderates as a way to isolate PP radical candidates.  Instead the Pro-Beijing forces took advantage of divided pro-democracy voters in historically pro-democracy districts to elect their own candidates, damaging the DP’s ability to compete and organize against PP.  This forced DP to move toward the PP radical stance, and repudiate moderation, in order to cement their support among pro-democracy voters.  Pro-Beijing forces also downplayed the significance of the Central Government’s concessions in 2010 to the Democratic Party, largely to protect and promote the appearance of their own “influence” over Central Government decisions. 

 

5.  Mistakes in analysis of the sources of governance problems:  Leaving Functional Constituencies unchanged, particularly corporate voting in Legco and the Election Committee, leaves in place a festering source of unfairness and corruption.  Corporate corruption of government officials (Hui, Tsang, Tong) was obviously rife in Tsang’s regime. 

 

FCs in Hong Kong need reform to root out corruption just like the rest of China needs to take steps to address corruption. 

 

Pro-Democracy forces failed to use the national campaign against corruption to weaken local and NPC opposition to FC reform.  The Central Government failed to recognize corruption in Hong Kong is rooted in the current system. Leaving the Chief Executive election method largely unchanged from the present system does not, will not, adequately address the sources of corporate corruption in Hong Kong, nor will leaving the Legco election method unchanged in 2016 address the Exco-Legco relations problems, or the illegitimacy of policy decisions by an unrepresentative Exco or Legco, or the lack of majoritarian dynamics for Legco elections, both in the FCs and Geographic Constituencies.  The Central Government argues the Election Committee must have majority, ie, “democratic” procedures to nominate candidates for Chief Executive, but it fails to recognize “majority” or democratic dynamics are missing in Legco elections, in both the FCs and GCs.  Not reforming or expanding the Election Committee hands the current incumbent, CY Leung, a considerable advantage and will undercut the legitimacy of his “re-election” if it occurs in 2017.  This will guarantee post-2017 unrest comparable to that which followed the “uncontested” election of Tung Chee-hwa in 2002.  The nature of the NPC Standing Committee decision of 2014 will convince many in Hong Kong that the possibility of reform was deliberately decided against by the Central Government, in collusion with local officials and corporate groups.

 

6.  Mistakes in analysis of the sources of governance problems:  Local government has consistently failed to recognize an “intervening variable” fundamentally affecting state-society relations in Hong Kong.  Failure to address the incoherent pension system in Hong Kong is a key source of social stress and perceptions government does not know or care about daily life problems.  Mandatory Provident Fund is uncollectable until age 65, but many are forced to retire or take much lower salaries at age 60. Those between 60 and 65 are extremely stressed and thrown onto family resources to survive the gap. Family burdens are thus multiplied on a younger generation that does not make as much, according to census data, as it did 10 and 20 years ago on an inflation adjusted basis.  Occupy Central on 2 July 2014 was dominated by youth and aged persons—telling evidence that these are most stressed groups united by a common burden of caring for the elderly while biological clocks tick for the young in the face of rising housing costs and lessening opportunity to start their own families due to these family burdens of the elderly.  Additionally, the LINK REIT (established in 2010) closed off public housing commercial space as cheap venues for young entrepreneurs trying to better their incomes or elderly trying to bridge retirement pay gaps with independent small businesses, further raising stresses from this issue.  An increasingly aging population exacerbates these problems while government remains inactive.  A year long study of options for pension reform, a very modest interim retirement supplement for many but not all persons, and very incremental adjustment of the MPF system, are insufficient in the face of the pressing nature and extent of the retirement age and provisions problems. Only radical legislators used the filibuster to fight for a pension system—so only radical legislators appeared to care about plight of youth and elderly. 

 

This is the key structural issue driving young and old into the arms of the radical politicians.  Government has the power to act, and by not acting it compels people to reject the present system which is failing them and demand changes, by whatever means they can as they are increasingly driven up against the wall.

 

7.  Mistakes in Hong Kong-Mainland China relations:  Permitting uncontrolled mainland tourism into Hong Kong of two kinds, and dramatically increasing numbers of mainland tourists in Hong Kong since 2010, has resulted in widespread daily life and economic impacts.  The first kind of uncontrolled tourism was of luxury trade tourists into Central and Kowloon districts, driving up rents and driving out neighborhood lifestyle vendors (noodle shops, daily services, bakeries, etc), affecting costs and kinds of services.  This even began to spread to secondary malls under LINK REIT control as LINK REIT “upgraded” the mall tenants and raised rents on them, putting “upscale” stores into spaces formerly filled with neighborhood, public housing level services and stores, and importing mainland tourists into the midst of public housing estates.  The second kind was cross-border trade in daily necessities, particularly sensitive necessities such as baby milk powder.  The poorer population driven to the fringes of Hong Kong thus faced price rises, shortages, increased costs in time and money to locate necessities further inland from the border when they are already on the margins economically.  Every mainland accent on the MTR and in the shops served to remind Hong Kongers of these irritations and impositions.  Meanwhile government officials appeared indifferent, unaware, or even mocking of the impact of mainland tourism on daily life.  Hong Kong Government department forecasts of mainland tourism rising to 100 million tourists by 2020, without consequent understanding of the widening and deepening impact of this level of tourism, is a serious error of competence and planning at the local level.

 

Pro-Democracy negotiation errors:

 

1.  Mistakes in understanding national dynamics:  Confronting a new mainland regime in its first months in office when it’s trying to establish credibility and cement support by cracking down on previous abuses is especially unwise and ill-timed. Concessions under threat of force (Occupy Central) would make the new government appear weak and could fatally undercut its authority across the mainland.  Given the details of the failures of the previous Central Government administration (see 2 below), and the clearly enunciated campaign of the incoming administration to correct these failures, pursuing an aggressively confrontative campaign was, and is, bound to fail, either because concessions cannot be granted under such threats, or because if concessions were made under such threats, it would encourage others across the mainland to engage in similar tactics until the administration failed and was replaced by a much more hardline regime which would likely walk back all such concessions, including those granted to Hong Kong.


2.  Mistakes in understanding national dynamics:  Neglecting the Bo Xilai case and how it stoked fears of a charismatic populist using a major city or province to rise to national power is a crucial error by Pan-Democrats.  Having no means of checking populism or a popular, charismatic local leader is more unacceptable now than before the Bo crisis.  The Communist Party fears such populist leaders greatly after Mao used populism and calls for democracy as a means to attack the party and state apparatus during the Cultural Revolution.  The Pan-Democrats do not appear to either care or know about contemporary Chinese history, thus reinforcing mainland impressions Hong Kongers are ignorant of China and don’t really love the country or understand it.  If Hong Kong democrats had referred, instead, to the Bo case as one of corruption and cynical populism used for personal gain, and argued that all liberal democratic systems recognize that populist tendencies need some form of check and balance, and thus conceded the need for a reformed and representative Nomination Committee as one of several means to check corruption and dangers of populism, the reforms proposed by moderates would have been better received and understood.  A campaign to “prevent Bo-ism in Hong Kong” by reforming the present system to make it more representative and more effective as a check on corruption and populism had chances to succeed.  A campaign that exacerbated fears of populism by promoting a confrontation led by a charismatic leader (Benny Tai), and which demanded a direct, popular choice of candidates outside all checks and balances was a process almost exactly calculated to provoke mainland fears.

 

3.  Mistakes in political strategy:  Attacking other pro-democracy parties over the 2010 compromise until no one is willing to compromise in 2014 was a serious, perhaps fatal, move.  This behavior also convinced pro-Beijing forces (and President Xi particularly) that compromise with pan-democrats is useless as any compromise simply leads to more extreme demands. The Communist Party compromised with the Democratic Party in 2010, the first and only time the CP compromised with a pluralist party in territory under its control. Unfortunately, rewarding moderates in 2010 with concessions did not strengthen moderates; instead radicals benefitted.  This compromise also was, allegedly, driven by Xi himself (VP at the time) as alleged by members of the DP itself (among others).  So demands for more compromise now by Pan-Democrats appear to have no likely payoff for the CP and for Xi, hence there is no real incentive or pressure on the Central Government to make further compromises.  The public rejection of the 2010 compromise may also be considered a personal affront or source of loss of face by Xi, making further compromise unlikely over the rest of his term in office.

 

4.  Mistakes in consultation method:  Occupy Central choosing only the 3 “most supported” options to go on the referendum unnecessarily limited choices.  Listing the top 5 or top 7 options would have made manipulation of results unlikely.  Having the deliberation days hijacked by organized radical factions distorted the whole process and undermined the credibility of the whole exercise.  Jimmy Lai is a known enemy of the CP and Mark Simon is a known, right-wing Republican operative with strong connections to Neoconservatives who advocate a confrontational foreign policy and promotion of American global hegemony.  Their interference has badly damaged the Pro-Democracy movement in the eyes of many.  The radicals are associated with legislators who openly call for the overthrow of the CP.  Occupy Central, which is even more confrontative than the May-June 1989 occupation of Tiananmen Square in that it actively seeks to block traffic and impose economic damage rather than passively occupy space in a park, is thus seen as affiliated with openly anti-CP groups.  Hence it is not seen as a pro-democracy movement but as an anti-CP movement.  It is also seen as a fundamental breach of the “one country, two systems” compact that neither entity would interfere in the system of governance practiced by the other.  Arguably, the rise of anti-CP forces since 2003-04 preceded the rising of substantive intervention of the Central Government into Hong Kong affairs.

 

5.  Mistakes in coalition politics:  Remaining in support and compact with legislators and groups that publicly seek the overthrow of the Communist Party on the mainland violates the “one country, two systems” principle and weakens arguments that Hong Kong should be treated differently from the mainland since it is no threat to the mainland system.  Such an alliance with, and acceptance of these groups as “democrats” undercuts arguments that democracy in Hong Kong is no threat to the mainland.  Refusing to accept requirements for loyalty oath and patriotic commitment by candidates undercuts claims that a popularly elected Chief Executive would not be a threat to the mainland system.  (See Bo Xilai case above.)  Resistance to ever implementing Article 23 further fans suspicions of Pan-Democratic coalition’s true intentions.  Affiliating and consorting with US Neocons further inflames fears and distrust of Pan-Democratic intentions.  While Pan-Democrats demand that the Chief Executive be above reproach in character and they often appeal to moral or ethical standards, their association with enemies of the CP and of China who themselves have murky moral standards and commitments to genuine democracy unnecessarily compromises their own claims to the moral high ground and to claims their sole aim is a democratic system.

 

6.  Mistakes in defining and modeling democracy:  Continuing to push Occupy Central despite poll after poll showing a majority of Hong Kong persons opposed to it compromises demands for “democracy”, which, by definition, means majority rule.  To insist that the Central Government should heed majority opinion as shown in polls but in turn, reject majority opinion as shown in polls undercuts both the scientific and moral status of the PD movement.  If Occupy Central pledged to follow majority views as established by polling on going forward or not with its plans, it would strengthen its arguments that the Central Government and local government should follow such protocols.  Democratic, majority-requiring procedures should be insisted on in all cases of public policy making, including elections and comprising legislatures and other bodies meant to represent the public and command majority legitimacy. Democracy must be practiced by those who demand it.

 

7.  Mistakes in undercutting the rule of law:  Breaking laws on social order to make a point about need for reform to prevent breakdown in social order is contradictory.  Rule of law is the key foundation for demands that reforms comply with international standards.  The key distinction between Hong Kong and mainland China is the rule of law and willingness of Hong Kong citizens to be bound by it.  Calling into question the commitment of the public to rule of law undercuts mainland confidence that law in Hong Kong is a reliable mediator of social order.  This incites mainland officials to believe that recourse to force, as implemented on the mainland, is as required in Hong Kong as it is in mainland China where rule of law is decidedly lacking. Civil disobedience is most consistent when the law being broken demands, by compliance with it, that one’s conscience by compromised.  For example, consciously refusing to comply with laws requiring discriminatory behavior.  If Occupy Central wishes to use civil disobedience, it should be to boycott elections held under undemocratic procedures, or by refusal to buy products or services from firms which support undemocratic procedures (such as firms which call for continuing the present Functional Constituency system).

 

8.  Mistakes in systems analysis:  Focusing on the Chief Executive election only, neglecting 2016 Legislative election reforms, neglecting tying together corporate voting and corruption in business dominated FCs appears to stem from the unsubstantiated belief that one person at the top can fix systemic wide faults.  Failure to clearly make Occupy Central as a means to make the cost of such corruption and collusion between government and business obvious to all is a result of losing the plot on reforming the grossly unfair big business dominated FCs.  This strategy abandons critiques of the present system as fundamentally unrepresentative in all aspects, from the District Councils all the way up through the Chief Executive Election Committee and the elections for NPC “representatives.”  Central is the locus of big business and government—Occupy Central should be cast as an attempt to make clear the cost to the public of continuing to accept this corrupt, unfair influence of big tycoons on government, and in turn, to impose costs on big business and government that make the point clear to them that the public is fed up with corruption and favoritism in government decision-making.  Occupy Central as an anti-corruption expression of the public should also be cast as supporting Xi’s drive to oust corruption in China.

 

9.  Mistakes in trust building:  Rejecting reform of the Nominating Committee, particularly reforming the FCs who dominate two thirds of the NC voters as the key demand, and continuing to reject making such reforms as the key demand even after public nomination was clearly rejected as an option projected a character of uncompromising extremism.  While many moderate groups proposed amendments for the Functional Constituencies and the Nominating Committee, the refusal to accept anything other than “public nomination” came to be seen by Pro-Beijing forces as making any attempt to compromise useless.  However, a willingness to abandon public nomination and focus on the FCs dominated by big business could have shown a willingness to compromise and thus invited compromise in turn.  If democrats then began making the case that big business virtually deciding who would run for government (be able to stand for public vote) is a clear invitation to indebting government leaders to big business interests, and thus ensuring corruption, Xi’s own campaign themes would have adduced and seen by him as a “friendly” gesture. 

 

Trust building gestures have largely been lacking from both the Pan-Democrats and the Pro-Beijing forces.  Democrats need to make the case that continuing government’s practice of favoring big business against the public interest is the main source of social unrest.  This is not in the true interest of business nor of government.  To permit the present system to continue unchanged puts in place not a check on power of a populist Chief Executive, but instead keeps in place an avenue of corruption that could be a potent driver for a Hong Kong leader to seek to extend his influence across the mainland.  This is a special danger especially if business leaders see mainland policies as restricting their means of profit, and seek to use Hong Kong’s leader who “owes them” as a means of influence over mainland cadres and policies.  Mainland leaders should fear this as much or more than the effects of reforming Hong Kong’s electoral system to limit and balance corporate power.  Corporations are also stateless creatures who seek their own profit, even at the costs of the interests of the state or Communist Party.  There is an “international standard” for businesses, and it is not friendly to national governments that do not dance to its tune.  This is a greater danger in terms of promoting disloyalty in Hong Kong than permitting the public greater leeway in nominating and voting for Chief Executive.

 

Contact:  degolyer@hkbu.edu.hk (copyright HKTP 2009-2010)