Friday, May 02, 2014

Last Chance to Have Your Say!

For what it's worth, the following is my submission to the government consultation on methods for selecting the next CE.  The closing date for submissions is tomnorrow, so it's not too late to express your views if you haven't done so already.  Whether they will be listened to is of course another matter entirely...

Submission to the Public Consultation on Methods for Selecting the Chief Executive in 2017
and for Forming the Legislative Council in 2016

I have hesitated before submitting this, because I feel that the wording of the Consultation Document and the government’s public statements on constitutional reform have already precluded many of the possible avenues to achieving genuine democracy.  Furthermore, local media reports suggest that certain companies with links to the Central People’s Government (“CPG”) have been putting pressure on their employees to submit pre-drafted submissions, thereby distorting the perceived weight of opinion in support of certain positions.

Nevertheless, as a permanent resident of Hong Kong I feel it is important that the voices of citizens be heard in shaping the SAR’s constitutional development.

Public Expectations and the Objective of Universal Suffrage
Given that the Justice Secretary has criticized some recent constitutional reform proposals for not defining their terms clearly, it is odd that such key terms as “universal suffrage” and “democratic” are not defined in the Consultation Document.  Based on general international usage, however, we can define universal suffrage as a system in which each citizen has a fair and equal vote.

Beyond this, however, universal suffrage is not an end in itself – it is a mechanism for exercising choice.  The legitimate expectation of the Hong Kong people is that the election of the Chief Executive (“CE”) through universal suffrage will be democratic, meaning that it will offer them a genuine free choice of a reasonable number of candidates representing the major streams of political opinion in the SAR – including those which the CPG may view less favourably.

Any system which fails to provide this, however closely it complies with the law, will not be seen as satisfying the spirit of universal suffrage or representing the legitimate democratic aspirations of the community.  It runs the risk that the future CE will be viewed – both at home and by overseas observers – as lacking a legitimate mandate.  It could also lead to an election boycott by disappointed voters, further weakening the legitimacy of any future CE.

The Legal Framework
As the Consultation Document sets out at length, the CE will be elected in accordance with Article 45 of the Basic Law, which provides that a “broadly representative nominating committee” be formed to nominate candidates for election.

The Basic Law does not specify how many candidates shall be put forward, but the wording “a certain number” clearly implies more than one.  While the Consultation Document makes much of Article 45, it is curiously silent on Article 26, which provides that “Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law”.  While there clearly has to be a practical limit on the number of election candidates, this clause suggests that the spirit of elections under the Basic Law is to open up competition to a broad cross-section of candidates, with no exclusion of any candidate able to command significant public support.

“Love China, Love Hong Kong”
Much has been said suggesting that CE candidates must “love the country and love Hong Kong”.  It is important to note that this is nowhere specified in the Basic Law as a prerequisite for election.  While this phrase may reflect the aspirations of the CPG, as the Bar Association’s submission to this consultation has rightly pointed out, it is “highly questionable as a matter of law”.  Indeed it is hard to see how such love could be measured or verified.

It is extremely unlikely that the Hong Kong electorate would vote for a candidate they did not perceive as loving Hong Kong.  As for loving the country, there may be different perceptions at work.  It is generally recognised that the CPG tends to define “patriotism” in terms of loyalty to the Communist Party of China and the communist system.  However, the concept of “One Country Two Systems” which is enshrined in the Basic Law implicitly recognizes that Hong Kong people may, while being loyal to China, take a different view.

As the Consultation Document points out, the CE “represents Hong Kong” and “is accountable to the CPG”.  The hope of Hong Kong people is that, while cooperating with the CPG, their CE would nevertheless be willing to strongly represent their needs and concerns to the CPG, particularly where these may conflict with the interests of the mainland – rather than merely acting as a conduit to convey the wishes of the CPG to the Hong Kong people.  Such two-way communication should not be misinterpreted as a failure to “love China”, and the CPG should be willing to recognize it as a legitimate desire on the part of Hong Kong people within the “Two Systems” framework.

The Representativeness of the Nominating Committee (“NC”)
The Decision of the Standing Committee of the National People’s Congress (“NPCSC”) in December 2007 states that “The nominating committee may be formed with reference to the current provisions regarding the Election Committee in Annex I to the Hong Kong Basic Law”.  It has been suggested by some that this means the NC must closely mirror the structure of the Election Committee.  The difficulty with this suggestion is that the Election Committee is widely recognized as grossly unrepresentative of the community as a whole, being heavily skewed towards selected sectors in its composition.  Adopting this interpretation would therefore make it impossible to meet the requirement of the Basic Law that the NC be “broadly representative”.

Such a contradiction would almost inevitably lead to an application for a judicial review on the grounds that any system introduced on this basis fails to meet the representativeness requirement of the Basic Law.  This would be divisive and damaging to public acceptance of the election framework.  We must therefore agree with the Bar Association’s view that the NPCSC decision cannot be so strictly interpreted.

A Matter of Trust
Rather than analysing the various election procedures in great detail, I believe it is more valuable at this stage to elucidate the underlying situation.  Clearly much of the disagreement over the CE election approach stems from a lack of trust on both sides:

  •  A large proportion of the Hong Kong public (commonly described as the “pan-democratic camp”) lacks confidence that the electorate will be offered a genuine choice, and fears the “screening out” of candidates seen as undesirable by the CPG, even though they may enjoy broad public support.  Consequently they seek to circumvent the feared unrepresentativeness of the NC by calls for civic or public nomination or other methods of giving the wider public a say in the nomination process.  Some even threaten civil disobedience if an undemocratic system is foisted on the Hong Kong people.·         
  • Meanwhile, the CPG and its local allies (commonly referred to as the “pro-establishment camp”) fear that a CE candidate may be elected whom they regard as “unpatriotic” and confrontational to the CPG – a situation they have even characterized as a risk to national security.  Consequently they propose systems which will tend to, as one DAB official admitted recently, “increase the predictability of the election result” (in other words, ensure that the CPG’s favoured candidate wins) – clearly not in the spirit of democracy.

I firmly believe that the fears of the CPG in this regard are unfounded.  As I have said, the Hong Kong public wants a CE who will represent their interests, but they are also well aware that the elected candidate will need to work closely with the CPG.  I am absolutely confident that they will use their votes wisely with this in mind.  Consequently there is virtually no chance that one of what many consider the “radical fringe” would ever stand a serious chance of being elected as CE – and in this extremely unlikely event, the CPG would still have the final safeguard of being able to refuse to confirm him or her in the post.

Given this, any attempt to unduly restrict the electorate’s choice of CE can only result in greater public distrust of the CPG and worsen the already tense political situation in Hong Kong, as well as the relationship between the SAR and the mainland.

Legislative Council
The main focus of the Consultation Document is on the CE election, but since it mentions the Legislative Council election, I will touch briefly on this.  It is obvious to all reasonable people that the Functional Constituency system gives disproportionate power and influence to a few small sectors of the community.  It is therefore essential that any long-term plan for democratic development must phase out the Functional Constituencies.  However, there are various alternative election systems, and a separate, more detailed, public consultation on these should be held as soon as possible.

In this submission, I have deliberately focused on matters of general principle rather than the minutiae of nomination procedures.  What is important is not the small details, but that the CE election system should conform to certain fundamental principles:

  • The nominating committee should be genuinely “broadly representative” of the community.
  • The nomination procedure should take note of public preferences and should not arbitrarily exclude any potential candidate who enjoys substantial public support.
  • Extraneous and unverifiable criteria such as “loving the country” should not be applied.
  • The nomination system selected should ensure that the public can enjoy a genuinely free choice between a reasonable number of candidates representing an array of political viewpoints, including those the CPG may regard less favourably.
  • The CPG should refrain from attempting to influence the result, and should trust the wisdom of the Hong Kong people.  It should not confuse passionate advocacy of Hong Kong’s interests with antipathy to the country as a whole.

Conformance with these principles will, I believe, lead to the election of a Chief Executive who enjoys broad public support, is generally recognised as having a legitimate mandate, and is able to work effectively with the CPG.  It will also ensure that China is seen internationally as fulfilling its promises to the Hong Kong people, thereby enhancing the country’s reputation.

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