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  • Dec 27, 2014
  • Updated: 7:52am
CommentInsight & Opinion

The middle way to electing the next chief executive

In an open letter to Carrie Lam, Michael Davis suggests a way for Hong Kong to elect the chief executive in 2017 that would conform to the Basic Law, as the government insists, while being consistent with international human rights standards

PUBLISHED : Monday, 24 March, 2014, 6:22pm
UPDATED : Tuesday, 25 March, 2014, 4:55am

Dear chief secretary, considering your frequent calls that proposals for nomination of the chief executive conform to the Basic Law, and mindful that the Basic Law also requires conformity to the International Covenant on Civil and Political Rights, I offer the following proposal. It seeks to adhere to the guiding human rights principles, offered by an expert international panel at the University of Hong Kong last week. And it seeks to reconcile views from both sides of the political spectrum.

First, the nominating committee. It should be composed of 1,200 members elected from "broadly representative" sectors of society, with reference to and through expansion of the sectors in the current Election Committee. To assist the legislative process, an independent working group headed by a member of the judiciary should be appointed to make recommendations for inclusion in sectors based on the following criteria:

  • That the overall constituent base for electing the nominating committee be increased substantially, opening space for all voters to register under an appropriate sector;
  • That there be no corporate voters and no discrimination against any class of voters in order, for example, to include among constituents in the various sectors such grass-roots groups as support staff, shareholders, sole proprietors, frontline workers, homemakers and civil servants;
  • That each constituent sector and the number of voters for each seat within a sector be roughly equal; and,
  • That the fourth political sector be made up primarily of directly elected legislators and district councillors, without precluding their constituents voting in other sectors.

Second, nomination. Any candidate who meets the Basic Law criteria in Article 44 concerning age, citizenship and residency and is nominated by 12.5 per cent of the nominating committee members shall be presented to the voters for election based on universal suffrage. Each person in the committee shall nominate only one candidate. There should be no formal limit on the number of candidates nominated except as a result of these constraints. The statute should provide for prompt judicial oversight.

Third, public recommendations. To better consult the public, a candidate who obtains a minimum of 10,000 signatures from registered voters should be given consideration for nomination in good faith by committee members to reach the required 12.5 per cent threshold. Fourth, election. The election among the nominated candidates shall be based on universal and equal suffrage. If no candidate receives more than 50 per cent of the vote, there would be a second round run-off two weeks later involving the two candidates who received the most votes. The nominee who receives more than 50 per cent of the vote shall be elected.

Finally, the elected nominee shall be appointed by Beijing, and he or she will swear a statutory oath of loyalty to both the country and Hong Kong.

Basic Law Articles 39 and 45 require that universal suffrage in Hong Kong complies with international human rights standards for elections, articulated in the International Covenant on Civil and Political Rights. The government has sometimes sought to avoid this duty by citing a 40-year-old colonial British reservation to the covenant's democracy requirements. Relying on such antiquated doubts would undermine public confidence in our electoral system and damage Hong Kong's reputation. As the Human Rights Committee has indicated in responding to Hong Kong human rights reports, once the city implements universal suffrage, it is bound to meet such international standards.

Though I would be happier with a nominating committee made up entirely of directly elected members, this proposal aims to satisfy the NPC Standing Committee's 2007 directive that the committee may be formed with reference to the sectorial make-up of the existing Election Committee. The challenge is to reform the four sectors in the Election Committee to be "broadly representative", as expressed in the Basic Law, and meet the international covenant's standards for universal suffrage.

The roundtable expert panel offered guiding principles that emphasised transparency, participation, non-discrimination and equality in voting to elect members of the nominating committee.

Compliance with the international covenant requires voters to be given a free and fair choice of candidates to reflect the genuine will of the people. Any attempt to exclude candidates for political opinion surely fails this requirement.

Article 26 of the covenant forbids any discrimination, whether direct or indirect, as a consequence of electoral restrictions. There have been frequent calls to maintain, more or less, the existing Election Committee, use block voting and severely limit the number of nominees. Such constraints would be discriminatory. The government must surely appreciate that calls for restrictions that would deny free and fair elections and fail to allow the will of the people to be expressed have caused public mistrust.

With these frequent statements, one cannot blame many Hong Kong people for insisting on civil nominations.

To achieve free and fair voter choice and realisation of the public will, the proposal suggests the same 12.5 per cent threshold for nomination as required in the Election Committee. Further, it incorporates a feature for public recommendation by collecting signatures, by which candidates will be nominated if they achieve the same 12.5 percent threshold. This a way to encourage members to nominate candidates with sufficient public support.

Finally, there is provision for a second round of voting to produce a winner with more than 50 per cent of the vote, thus providing legitimacy for effective governance. An oath should allay any concerns about loyalty of the appointee.

By satisfying the requirements of the Basic Law and international covenant, while meeting objections based on the government's interpretations of these requirements, this proposal aims to create an avenue for the government to show a sincere commitment to universal suffrage.

Michael C. Davis, who teaches constitutional law at the University of Hong Kong, was a member of the roundtable expert panel

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This article is now closed to comments

ianson
Davis' is a perfect compromise establishing a reasonable benchmark against which to contrast statements from the Beijing hawks.
johnsonwkchoi
It is a challenge how to interpret law and put it into practical use. If you look at America the prime advocate of democracy is failing badly when 40% of the voters gave up to vote as money (pay to play) control all government agenda. When America push our brand of democracy to Egypt, we helped topple the government with violence and turned our head pretending nothing have happened. The rule of law should not favor anyone. But the American brand of rule of law does favor those with money and big guns. When I voted the 1st time under Ronald Reagan 30+ years ago, I was very excited. Last election, I have decided NOT to waste time to vote because money and special interest trump and override the democratic system in America. Therefore for someone said to do this and that is great for Hong Kong. It is ONLY in theory. Under America democratic system, more people are getting poor while China despite her imperfection out performed America in most category. Yes, America like to argue human rights. What human rights do we have in America when in a small States like Hawaii with less than 1.4 million population, more than 6,000 people are sleeping on the street every night. Our elementary school children has NO food to eat during the weekend. Our Rotary Club has to give money to food bank to give those kids food package to take home so they will not be starved until the following Monday. Yes, the pasture is greener on the other side, or is it really???
chuchu59
I especially liked the part where Michael said there should be an independent working group headed by a member of the Judiciary. The former CJ, Li Kwok-nang fits in perfectly. A man of integrity is what we need to make recommendations.
petits.bijoux.35
While I simply don't have the time to read through this article and while the politics in Hong Kong is simply too musty for it to be of my concern, I would, however, take a moment to comment on the lousy title and the artless illustration.
.
First of all, "The Middle Way" would have been more accurately attributed to the Buddha. Secondly, the Ying Yang (a.k.a. Tao) has more to do with freedom, non-interference and non-participation, in other words, just let it be. My understanding is that Lao Tzu would naturally be the last person on this planet who would bother himself with bureaucracy and the ballot box.
.
For Mr. Davis "who teaches constitutional law at the University of Hong Kong" to have made such unscholarly and shallow interrelations and associations, it clearly shows Mr. Davis may not be the most eligible person to interpose himself in the matter.
DinGao
Patten's proposal to provide functional constituencies for all did not contravene the Basic Law either and what happened to them? It would be nice to think that these imminently sensible and well argues proposals will receive fair consideration but I am not rushing to get a bet on.
hm03
Yes but you're also cherry picking which country to use as example of democracy. There's also democracies in Scandinavia which churned out a pretty decent and fair society, even if admittedly there are problems brewing.
And anyways for a small city of Hong Kong which has an even more skewed balance between the haves and the have-nots, then you should start wondering too.

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