Posted: May 2, 2014
Not likely. But it’s fun to think about anyway. Once Beijing’s intent has been stated openly in public on something as major as political reform, Hong Kong’s leading government officials have, since 1997, gone out of their way to avoid expressing contradictory opinions of their own. Hence the surprise when Chief Secretary Carrie Lam openly contradicted the message that has been repeated by just about every Beijing official and local loyalist who has spoken on the question of Chief Executive nominations for the promised 2017 universal suffrage election. Nominations are the most controversial aspect of the 2017 electoral reform debate and she is second only to Chief Executive Leung Chun-ying in the local government hierarchy.
Lam said the proposal by 18 academics announced in early April was worth considering to determine whether or not it violated the intent of Hong Kong’s Basic Law constitution. They suggest that a nominating committee should (not must) consider candidate commendations from the public. Public participation in the nominating process has grown into a widespread demand during the past year of debate. She did not reject public recommendation outright as a violation of the Basic Law … even as Beijing officials were doing just that (April 23 post).
A few days later, another member of her leading consultation team on the 2017 Chief Executive electoral reforms said the same thing: public recommendation is a proposal worth considering. He is Raymond Tam, Secretary for Constitutional and Mainland Affairs. Equally surprising, Tam did not hail the proposal just announced by Hong Kong’s main pro-Beijing political party, the Democratic Alliance for the Betterment and Progress of Hong Kong (DAB). This proposal was designed to meet all of Beijing’s requirements. Tam tempered his enthusiasm saying public consensus would be difficult to achieve for such a conservative design.
These “dissenting” official opinions doubtless do not indicate a sudden new open defiance of Beijing on the part of Hong Kong officials. More likely it signifies only a tactical shift in negotiating style and behavior compared to years past when there was no space whatever between the two: official Beijing and official Hong Kong. Chief Executive Donald Tsang during the 2010 political reform controversy is a case in point. Then Democratic Party chairman Albert Ho, who did most of the negotiating, said afterward he would rather deal directly with Beijing officials than with the unmovable Donald Tsang. Then Secretary for Security Regina Ip left behind a similar record from 2003 when she led the government’s ham-fisted attempt to force passage of its Article 23 national political security legislation.
Still, the change is refreshing … especially in light of hardline DAB orthodoxy … and the mixed verdict just announced by Hong Kong’s Bar Association, regarded as a guardian of judicial independence. Something is going on here. Outsiders for now can only watch and wonder what … but it looks very much like a carefully choreographed local attempt to absorb and deflect the force of Beijing’s advance.
THE DAB’S GOLD STANDARD MODEL
This proposal follows the Basic Law’s Article 45 and Beijing’s relevant 2007 decision. They are officially said to mandate that only a nominating committee has the constitutional authority to nominate Chief Executive candidates. To allow the public any say in the nominating process would be to dilute the committee’s authority and grant power to the mass of undifferentiated unled individual voters … evidently the most dreaded of all Beijing’s fears. Also, the nominating committee must be modeled on the Chief Executive Election Committee that has been endorsing Beijing’s approved candidates since 1997. This committee’s four-sector design is stipulated in the Basic Law’s Annex One. The four sectors: business, industry, finance; the professions; grassroots (labor, social services); political leaders. The committee has been expanded gradually since 1997, based on the same predominantly conservative and pro-Beijing loyalist mix, from 800 to 1,200 members.
The DAB is proposing that this same four-sector conservative-loyalist mix be enlarged again, to about 1,600 members with the addition of the now solidly conservative/loyalist District Councilors and a few extra members representing new sectors such as women, youth, and small enterprises. Up to this point, the DAB’s proposals don’t look much different from many others since there is as yet no widespread demand among pro-democracy partisans for a major overhaul or redesign of the existing Election Committee.
More controversial is the DAB’s proposal to implement what it understands to be Beijing’s intent, namely, to have the committee as a whole do the nominating (South China Morning Post, April 11). That means at least 50% of the entire committee must approve each candidate to be placed on the public ballot. Bloc voting will be used to achieve such a result, meaning each committee member will be allowed (or required) to vote for four candidates, the proposed total number to be allowed on the public ballot under the DAB’s plan.
The DAB proposes a two-step sequence within the committee, adapting the present process whereby any prospective candidate who collects signatures from one-eighth of all committee members can qualify as a candidate to be endorsed by the committee as a whole. Under present rules, the winning Chief Executive candidate needs 50% of all committee members’ votes. In 2012, for example, Leung Chun-ying won with 689 votes.
Under the DAB’s plan, signatures from one-tenth of all committee members would be needed to qualify for the second step or internal committee ballot. At this second stage, up to four of the preliminary nominees would need a 50% endorsement from the committee as a whole to achieve formal candidate status and a place on the public ballot. That would mean a stacked conservative/loyalist committee presenting the general voting public with a slate of safe conservative/loyalist candidates from which to choose (Wen Wei Po, Ming Pao Daily, Apple, April 23).
Raymond Tam’s immediate response was not much different than that of Joseph Cheng, convener of the Alliance for True Democracy. He rejected the DAB’s proposal as a non-starter when word began circulating about its specifics (SCMP, April 11). Tam said forging a community-wide consensus would be difficult. To which the DAB’s chairman replied that it is Tam’s responsibility to see the job done (Ming Pao Daily, Apple, April 24).
Pro-Beijing partisans naturally have nothing but praise for their design. They say it upholds the Article 45 mandate for “democratic procedures” because the plan is based on the democratic principle that “the minority must obey the majority” (Wen Wei Po, April 24). They have a point … the institutional implications of which pan-democrats often ignore. The DAB has grown fast and is now Hong Kong’s largest political party with 20,000+ members. It is also the most generously funded and has more seats than any other party in the Legislative Council. Additionally, the DAB and allied Federation of Trade Union legislators dominate the council’s conservative/loyalist majority of 40+ members. Such a mix now enjoys majorities on all 18 of Hong Kong’s District Councils as well. Like the proverbial loaves and fishes, the party has been able to multiply its influence many times over.
ANOTHER BLOW TO PUBLIC NOMINATION
The first was struck a few weeks ago during the roundtable discussion hosted by the University of Hong Kong’s law school. The exchange between international legal experts and local law professors resulted in a compromise verdict, namely, that international standards for universal suffrage elections do not mandate public participation in the nominating process (March 26 post). Now a second blow has been struck by none other than Hong Kong’s Bar Association. But this blow has come from a two-edged sword and democracy activists are not the only, nor even the main, targets.
All of this can be found in the association’s 40-page opinion, just published for public reference and submission to the government as the first phase of its public consultation on electoral reform draws to a close this Saturday.* The barristers summarily dispensed with demands to let the public participate directly in the nomination of candidates for the 2017 Chief Executive election. Two of the three tracks proposed by the Alliance for True Democracy coalition call for such public or at least political party participation. But the barristers categorically conclude, as does Beijing, that this would violate the Basic Law’s Article 45. It grants nominating authority, wtihout elaboration or qualificatin, to a “broadly representative nminating committee.”
The barristers have chosen to adopt a narrow literal interpretation of this article. They argue that public participation could defy the Basic Law’s intent by turning the committee into a rubber stamp for public opinion. Although they do not cite examples, what they mean to reject is something like the contemporary political party nominating conventions in the United States. These conventions anoint presidential candidates who have already been chosen by voters during the year-long “public nomination” process that includes state-wide primary elections and/or caucuses.
Attention focused immediately on this point about public nomination in the barristers summation. They were accused of selling out to the powers of government and big business they serve … a suggestion that Bar Association chairman Paul Shieh indignantly denied. We are professionals, he declared, beholden to no one. The association represents Hong Kong’s elite body of 1,000+ trial lawyers whose partisan political preferences vary. But since many leading pro-democracy voices come from within the legal establishment, and since it has always elected a democrat to represent the legal Functional Constituency in the Legislative Council, the association’s strict reading of Article 45 came as something of a surprise.
After dispensing with public nomination, they waffle a bit and leave some space for public recommendation. They say that as long as it is understood not to be an automatic mandatory requirement, candidates with relatively strong public backing could be considered by the committee.
DEFLECTING BEIJING’S ADVANCE
Amid the controversy over public nomination, no one paid much attention to the subdued response coming from the other side (Wen Wei Po, April 30). If pan-democrats are unhappy with Hong Kong’s legal establishment, the DAB and Beijing’s Basic Law guardians must be fulminating. Blasts are sure to follow since the barristers have also dispensed with just about everything else in the loyalists’ polemic.
The Chief Executive must be “patriotic,” say loyalists. Not legally permissible, reply the barristers, an interference with the basic right to elect and be elected. Besides, the existing pledge of allegiance is sufficient for the purpose.
Nominations must be authorized by the nominating committee as a whole, say the guardians, and the DAB wants a 50% threshold. No way, say the barristers. The function of the nominating committee is to nominate, not elect. It should not be used as a mechanism to replicate the present Election Committee. The number of candidates must be limited to no more than four, says the DAB. Not on, reply the barristers.
They also disagree with Beijing’s claims for its 2007 decision. This said the nominating committee “may be formed with reference to” the existing Chief Executive Election Committee. That decision, from the Standing Committee of the National People’s Congress, does not qualify as an interpretation of the Basic Law, say the barristers. The nominating committee can be formed in ways other than as a replica of the existing Election Committee since “may” does not mean “must” and “with reference to” is not legally binding here.
Secretary for Justice Rimsky Yuen, the third member of Carrie Lam’s leading consultation team, has not come forward to answer such questions (Feb. 14 post). But his fellow barristers did the next best thing. They answered for him. No wonder Raymond Tam had a smile on his face when he was asked about the Bar Association’s verdict. Now he has some authoritative legal opinions to work with … if only his team chooses to use them. As for pan-democrats’ disappointment, generating pressures for public recommendation can be done in many ways … most of which are already being planned.
* Hong Kong Bar Association link: http://hkba.org/whatsnew/press-release/index.html