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