Posted: Feb. 14, 2014
Secretary for Justice Rimsky Yuen Kwok-keung has stated the government’s case on how candidates for the 2017 Chief Executive election should be selected. Only the existing Election Committee recast as a Nominating Committee will do, he wrote in a widely-circulated pre-Lunar New Year message. During a follow-up interview reported a few days later, he seemed to acknowledge that the idea of letting the public participate in the nominating process might be gaining popularity. But people would likely change their minds, he said, once they learned that public nomination would be “illegal.” He also said an imperfect solution at this stage along the route to universal suffrage elections would be better than no solution and warned that any political turmoil born of local frustration could undermine international confidence in Hong Kong’s economic stability (Feb. 6, post).*
Secretary Yuen has thus set himself two tasks: one legal, the other political. First he must demonstrate, beyond doubt, that the Nominating Committee is the only legal option. His second task is more difficult because it means convincing the public that the government’s case is not only legal but acceptable given local fears about Hong Kong’s long-term political future and local expectations after decades of chasing a goal that always seems just out of reach.
Yuen’s problem is that he seems to think the second task will flow automatically from the first. For that happy circumstance to occur, however, he must do a better job of answering questions raised by the government’s Consultation Document summation that officially launched the current electoral reform cycle last December. The law may indeed be what he and Beijing say it is. But he also says he wants to guide Hong Kong public opinion toward a “balanced and informed” conclusion. If so, simple declarative statements will not suffice to convince a skeptical public that has seen several of the Basic Law’s original promises overridden and superseded by subsequent Beijing decisions and interventions.
Since only the Nominating Committee will do, two points need explaining. One concerns the winding route whereby the existing Election Committee is being presented as the sole basis for the 2017 Nominating Committee, thereby making it the sole legal option for selecting candidates. Another question concerns the design of the committee itself.
BINDING IN MAINLAND LAW
All arguments must begin with the relevant passage in Hong Kong’s Basic Law, Article. 45: “The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.”
All official sources trace their insistence on not just any nominating committee but on Hong Kong’s existing Election Committee as the model that must be used, to the 2007 decision by the National People’s Congress Standing Committee (reprinted in the Consultation Document, Annex 1). The 2007 decision said that the future body in question “may be formed with reference to” the existing Election Committee, a vague statement to be sure. It didn’t even say must be formed. And how binding could “with reference to” possibly be?
The Consultation Document answers this question in a lengthy footnote (para 3.13). It explains that the phrase “with reference to” is a mainland term and when used in mainland law, the term has “binding” effect. Yet Secretary Yuen himself admitted soon after the document was issued in early December that no such precedent exists in Hong Kong law. Nor does the document explain the apparent contradiction. Article 18 of the Basic Law, for example, promises that “national laws shall not be applied in Hong Kong.” Does the government now mean to override this promise, too, along with the promises about equality before the law (Article 25) and the right to vote and stand for election (Article 26)? Secretary Yuen says these two articles must not be allowed to supersede Article 45.
RECONSTRUCTING THE COMMITTEE
Secretary Yuen compounds the difficulty of his political task by saying nothing at all about the specific design of the committee itself. Popular demands for other types of nomination might not have arisen in the first place had the government ever shown the slightest interest in addressing the many specific points of criticism that have been raised over the years about the committee’s arcane and convoluted design. Yet Article 45 calls for a “broadly representative” committee. The public might be more inclined to respect its legality if the government could demonstrate good faith by explaining how it aims to interpret the word “representative’ in this context.
Perhaps focusing on another key Article 45 phrase would inspire more official activism. Accordingly, methods for reforming Chief Executive selection procedures must be designed “in the light of the actual situation.” The Consultation Document footnote on binding mainland legal precedents also adds a caveat about the “actual situation.”
Hong Kong’s existing Chief Executive Election Committee was designed in the late 1980s when Beijing was fearful of what were then called Hong Kong’s “liberal” ballot-box preferences. Three decades have passed and loyalist forces are now approaching parity with pan-democrats, if the vote-count on those 2012 Legislative Council super-seat candidates is any indication. Loyalists and their allies also now enjoy solid majorities on all 18 of Hong Kong’s basic-level District Councils. The question, then, is why Secretary Yuen is not taking the initiative to seek Beijing’s approval for a serious remodeling of Hong Kong’s Election Committee in light of the actual political situation.
Better yet, he might revisit that key phrase “may be formed with reference to” and find some creative ways of letting the public have its say. There are many possibilities. Otherwise, he will be forced to override the spirit of three fundamental Basic Law promises, which seems calculated to invite the political turmoil he fears. Legal or not the course he advocates seems unnecessarily provocative. It also does not follow from his own stated preference for a literal interpretation of official texts since “may” does not mean “must.”
* A shorter version of this article was printed in the South China Morning Post, Feb. 13.