Committee mumbo jumbo
The arguments of mainland legal specialists for a two-year term for the next chief executive also suggest that the Hong Kong government made a mistake when insisting that the election committee formed to choose its six representatives for the Legislative Council in 2000 should also elect the city's leader in 2002.
This view was aired on the Newsline TV programme on Sunday by Michael DeGolyer, director of the Hong Kong Transition Project. When the committee was formed, the government was unwilling to say whether its functions would include electing the chief executive in 2002. That was only decided later.
Meanwhile, mainland legal experts, such as Xu Chongde, a law professor at People's University in Beijing, and Lian Xisheng, of the China University of Politics and Law, argue that the Basic Law makes it clear that the winner of a by-election should only serve the remaining term of the previous chief executive.
Mr Xu, who helped draft the Basic Law, said he recalled that 'in the course of drafting Annex I, there was a provision stating that the election committee shall be dissolved after the appointment of the chief executive by the central government, but it was subsequently amended as the term of office of the election committee shall be five years'.
'It was decided that the issue of filling the chief executive's vacancy in the event that his office became vacant be resolved by providing that the term of the election committee shall be five years,' he added.
Professor Lian said: 'The fact the term of the election committee is the same as that of the chief executive proves that the office of the chief executive is designed on a term basis.'
Accordingly, the opinions of these two experts mean that the committee's five-year term was meant to more or less coincide with the five-year term of the chief executive, so that if a vacancy arose, the committee would be available to fill it. The term of the current election committee is due to expire on July 13. If Tung Chee-hwa had delayed his resignation by a few months, or if another vacancy should occur within the next two years, then the Basic Law's goal of having the same committee choose a successor would have been frustrated.
Thus, Hong Kong, which now insists on a two-year term for Mr Tung's successor, erred in deciding that the same committee should elect the six Legco members and the second chief executive.
However, since election committee seats in Legco have been phased out as of last year, the problem of whether there should be one or two committees should not arise in the future. But, at the time, there were people such as Shiu Sin-por, head of the One Country Two Systems Research Institute, who argued that there should be two election committees. But those arguments were swept aside.
And if the Basic Law intended there to be two separate election committees, one to choose legislators and one to choose the chief executive, then doesn't it mean that the committee elected to choose legislators was going beyond its legal power when it also voted in the second chief executive?
To put it another way, doesn't it mean that Hong Kong has not had a validly elected chief executive for the past three years? And didn't Beijing, by not repudiating Hong Kong's actions, in effect endorse them?
Of course, there was no election in 2002, since Mr Tung was the only candidate. But recent events show that both Beijing and Hong Kong have acted in a way not intended by the Basic Law, if mainland legal experts are to be trusted.
Frank Ching is a Hong Kong-based writer and commentator
