Legal groups question 'step-by-step' poll reform

The two bodies representing Hong Kong's lawyers have questioned the assumptions about key Basic Law principles in the government's green paper on political development.

The Law Society said the government's suggestion of a 'step-by-step' approach to democracy was capable of leading to absurd results.

The society said that for the nominating committee, which names candidates for the chief executive election, to be 'broadly representative' as required by the Basic Law, it should consist of members elected through universal suffrage, or of lawmakers and directly elected district councillors.

In its submission on the green paper , the society defined its preferred interpretation of 'broadly representative' as 'a reflection of the wishes of Hong Kong people as a whole', not 'a reflection of a wide number of specific sectors in Hong Kong'.

The society said it was offering a legal analysis, not proposing a specific electoral model, but its reading of Basic Law principles could have a bearing on whether other proposals comply with the Basic Law and international standards.

Its opposition to the 'step-by-step' approach countered proposals by Beijing loyalists who advocate universal suffrage in 2017 at the earliest, since an overhaul of the system in 2012 would be too much in 'a single step'.

In a separate submission, the Bar Association concurred with the Law Society.

It argued that a specific article in the International Covenant on Civil and Political Rights (ICCPR) defining the concept of 'universal and equal suffrage' should apply to Hong Kong, despite the government's argument to the contrary.

The Law Society said the UN covenant defined universal suffrage as also meaning 'representative democracy', not just allowing everyone to vote, while enshrining the right to be elected, not just to elect.

According to these principles, the maintenance of functional constituencies, where only certain people have the right to be elected, 'indirectly violates the principle of equal suffrage'.

One of the options in the green paper for electing all lawmakers by universal suffrage involves retaining functional constituencies while changing the electoral method, such as by allowing all voters to cast ballots for candidates nominated by trade organisations in the relevant constituencies.

Margaret Ng Ngoi-yee, lawmaker for the legal profession, said her colleagues were now united in their views on constitutional issues and there was no room for dispute. 'The Law Society's submission is a very detailed and very professional analysis. The government should listen carefully,' she said.

The chairman of the Democratic Alliance for the Betterment and Progress of Hong Kong, Tam Yiu-chung, said that gradual, orderly progress in the spirit of the Basic Law mandated a 'step-by-step' approach.

'If you look at how elections have been introduced for the Legislative Council, it has never been done in one drastic step,' he said.

The Law Society contended that the 'factual and legal context' of the meaning of 'gradual and orderly progress' allowed for a flexible change from previous political structures to new arrangements.

'If 'gradual and orderly progress' is taken to have a literal meaning, then absurd results will arise,' it said.

'A golden rule in law for the interpretation of legal instruments is that they cannot be read in a way that creates an absurd result.'

The society said the government 'tacitly acknowledged the non-linear nature of the progression' when it presented universal suffrage in 2012 as an option in the green paper.

Vice-president of the Law Society Wong Kwai-huen said: 'We started the gradual process a little while ago.'

He also said Hong Kong's obligation under the ICCPR should mandate the introduction of universal suffrage 'as soon as possible'.

The government is to collate responses submitted during the consultation in a report to the central government in three months' time.

Mr Wong called for the report to be made public. 'At least we'd like to know how the government responds to our submission,' he said.