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Basic Law

The Basic Law was drafted as part of the Sino-British Joint Declaration covering Hong Kong after its handover to China on July 1, 1997. The joint declaration stated that Hong Kong would be governed under the principle of ‘one country-two systems’ and would continue to enjoy its capitalist system and individual freedoms for 50 years after the handover.

CommentInsight & Opinion

Above all, political reform plan must be realistic

Andrew Leung says it's time for all sides of the political reform debate to realise they will have to compromise and satisfy some of the interests of others if Hong Kong is ever to move forward

PUBLISHED : Friday, 11 April, 2014, 7:21pm
UPDATED : Saturday, 12 April, 2014, 3:49am
 

A Chinese saying has it that when a boat reaches a narrow bridge, it will somehow manage to traverse it. As the five-month public consultation period for Hong Kong's electoral reform draws to a close, oars of all shape and complexion are working overtime. Even US Vice-President Joe Biden is making noises from the sidelines. However, with the boat moving in different directions in an unfavourable undercurrent, there is little chance it will pass the bridge in time.

Much of the lack of consensus results from denial, or a lack of appreciation, of some critical realities and dynamics. These should define any reform proposals if they are to be acceptable to Beijing as well as to the Hong Kong people, sectoral interests and political parties.

First, Hong Kong's high degree of autonomy is not unbounded. It is defined by the Basic Law; Article 45, for example, lays down the powers of a nominating committee for the election of a future chief executive.

It also stipulates the central government's power of appointment. These powers are substantive. Any attempts to circumvent, vitiate or water them down would be unacceptable to Beijing. Nor would these attempts augur well for "one country, two systems", of which the Basic Law is the bedrock.

While the flow of public opinion begins to move towards the Basic Law, a wide divergence of views remains as to what nomination under the Basic Law should represent.

Meanwhile, the Occupy Central movement remains active in trying to force Beijing's hand to grant what its supporters regard as the right nomination method for universal suffrage.

Second, the Basic Law clearly vests the power of nomination in a nominating committee, not a fraction of it. There is no provision to assume that such powers can be delegated to part of the committee. It is mandated to first exercise its power of nomination according to democratic procedures. A collective power of nomination is therefore required, which is exercisable, for example by majority vote, before any candidate can take part in election by universal suffrage.

This is to ensure that any nominated candidate put forward is sufficiently representative of the wishes of the whole committee. Thus, nomination by securing anything less than a simple majority of support can hardly be deemed to satisfy the "democratic" requirement. Third, the Basic Law mandates the nominating committee to be "broadly representative". The existing Election Committee of 1,193 members hardly fits the bill .

However, merely expanding the size of one sector would upset the political balance with the other three. All four sectors have equal representation on the Election Committee, as stipulated in the Basic Law. This balance has proven vital to Hong Kong's political, economic and social viability.

This suggests that if one sector is widened, the other three should also be similarly expanded. One way to achieve this is to subdivide further the four sectors (already divided into 38 subsectors) into a much larger number of constituent groupings so that more minority interests are directly represented. This would make the nominating committee more "broadly representative" as well as more democratic.

Fourth, if the nominating committee is sufficiently enlarged, say, to over 5,000 members representing over 100 sub-sectors, the threshold for a name to be considered by the committee for nomination does not need to be set very high. Even, say, 8 per cent of the total votes of the committee should be sufficient. However, as explained above, any such names will have to win the committee's substantive support before being put forward for election.

If there are numerous recommended candidates, the committee would have to go through rounds of voting to narrow them down to a manageable list. Thus, no candidate should feel automatically excluded from winning a nomination.

Fifth, there must be mutual trust between the chief executive and Beijing for the relationship to work. Understandably, Beijing is wary of someone being elected who is known to be bent on undermining the legitimacy of the country's ruling party.

Nevertheless, provided that the strict requirements of the Basic Law are satisfied, this eventuality is unlikely, given the collective nomination process involving all four sectors, followed by universal suffrage. Additionally, Beijing's substantive power to deny appointment would act as a last resort, although this is a decision only to be considered in extremis, as the political costs would be incalculable.

Sixth, power without responsibility is the Achilles' heel of Hong Kong's political parties. As any electoral reform proposals need to secure two-thirds support in the Legislative Council, a strong inducement for compromise would be to include a provision in the reform package to share power and responsibility in the government among the various political parties. While the Western model of government by a winning political party is not compatible with the Basic Law, it would be no bad thing to apportion future ministerial posts broadly in proportion to a party's vote share in the Legislative Council.

Although a minister would have to relinquish his or her party position, informal links would serve to reach out for party support or at least smooth over any differences. This would have the added advantage of minimising problems of a fractious legislature and fostering greater cohesiveness in governance.

Without sufficient incentives that at least partially satisfy the "core interests" of both Beijing and Hong Kong stakeholders, different oarsmen will continue to row in different directions.

It is high time to put forward a package embracing considerations that are more likely to be acceptable to all sides. Hong Kong's electoral reform needs to succeed not only in crossing the 2017 bridge, but also in introducing a more collaborative working relationship between the executive and the legislature. This great city can ill afford this political infighting while watching our international competitiveness slip.

Andrew K. P. Leung is an international and independent China specialist based in Hong Kong

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This article is now closed to comments

321manu
Why some people are so indoctrinated as to be unable to distinguish the CCP from "Greater China", I do not know. But it is apparent that quite a few people suffer from this affliction.
It is actually pride that in part drives people to determine their own futures. It is only those without pride who would completely and willingly subjugate themselves. The latter would describe whymak and friends. But individually, if they wanted to subjugate themselves to the CCP, that is their personal choice, and power to them for making it. It's only when these people try to impose their own desires for subjugation onto others that it becomes reprehensible. Yet they have no qualms about random musings of "chaos" and rapture-style premonitions, for fear is how they operate, and imposition of fear is how they've been conditioned to get their way. Not much different, really, but your garden-variety street thugs, trying to scare their marks into line with threats.
I am truly hopeful that HKers will sneer at this overt thuggery. And I'm also confident they will have the requisite intelligence and pride to do so.
whymak
kongshan:
Isn't it obvious why these losers can't accept our singular role in Greater China? These losers, with sentiments so "eloquently" expressed by a few readers below, are petty, malicious people without pride in family, community, friends and careers. Lack of professional competence and discontent with their own station in life and personal wealth have condemned them to be hyperactive political dissidents.
Like I say, they create this political chicken neck issue on nominations. In their fantasies, they dream to create chaos, economic stagnation and policy gridlock to prove their point -- that we need to directly confront the central government in every issue, big and small.
Destruction of our social and moral fabric is what they wish for. Leveling the playing field to accommodate their incompetence has now become their goal. Through political chaos, they believe it would drag us all down to resenting and commiserating about our social condition. Consequently, they hope to gain an unfair share of political power and wealth first with disorderly crowd conduct, and if necessary, infringing on our daily movement and rights to work.
Hopefully, the HK silent majority with no preferred ideology won't want this to happen. But they must go against their grain of Chinese reticence. Silence and harmony are no longer golden when nihilists and anarchists are here to bury us.
kongshan2047
The reality which a lot of HKers will not accept is that HK is not a sovereign nation, which means any political reform relating to HK must be approved by the Chinese Central government.
321manu
whymak, you go by "facts"? A useless personal anecdote of a few misbehaving kids is a "fact" towards what purpose, exactly? It is a useless fact in support of a useless argument, offered by someone whose motives of advancing CCP interests in HK are no secret, loquacious insistence of the contrary notwithstanding.
Anyway, as a card-carrying CCP apologist, I would suggest a return to the motherland where you may bask in the glory of authoritarianism without all this democracy stuff that you despise, but can't get away from, in HK.
Indeed, I hope HK's silent majority get to exercise their voice. It's just hilarious that you pretend to speak for them. It's another typical CCP apologist trait: the desire to speak for others rather than letting them speak for themselves. I guess CCP habits die hard for the true believers.
whymak
Many self-hate grown-ups -- readers commenting below -- are fighting over a chicken neck!
Except for satisfying your defiance of China with hollowed out Democracy wrapped with petty technicalities and jargons, you're losers with nothing but dogmas and slogans.
whymak
Someone brought up Stephen Vines, another knee-jerk China basher and supercilious expat witch now stirring Hong Kong's political cauldron. I use my words carefully here.Unlike those who have nothing but contempt for Chinese culture, I go by facts but don't question their motives.

One Easter I visited with my college roommate's family village in Maine near the Canadian border. His old family with only 2 siblings was then expanded by three more after his mother second marriage from the untimely passing of his natural father.

Over dinner, the "baby" brother wanted the chicken neck. Reflexively, his older brother passed up his drumstick already on the plate and demanded the same. It took a while before my roommate's stepfather settled this dispute. No chicken neck for either of them. "If you don't keep quiet," they were warned, "no dinner for you."

On another occasion, the baby just had his toenails trimmed. Then he threw a temper tantrum: "I want my nails back!"

I remember them fondly because none grew up with self-hatred like HK pan democrats. In case you wonder what happened to that baby brother, he got a PhD. in electrical engineering and became a professor. For sure, he is no pseudo intellectual like HK political active academics or legally constipated Civic party lawyers.

I endorse this true story as my political message to Hong Kong's silent majority, should they decide to come out of their shells to vote in 2017.
blue
What a terribly disingenuous article! Like everyone else already stated, article 45 of the Basic Law does not require the Nominating Committee to nominate candidates "as a whole" nor does it require them to nominate candidates using a block vote with a simple majority. Such a proposal would never secure two-thirds majority in the Legco. Why would 4 pan-democrats vote for something that would ensure every pan-democrat will be screened out by a Beijing loyalist stacked Nominating Committee?

If you absolutely insist on having the nominating committee nominate candidates as a whole using block vote, then you're going to have the expand the electoral base that elects the members of the Nominating Committee to all Hong Kong registered voters. That is the only way the Nominating Committee can meet the "in accordance to democratic procedures" requirement stipulated by the Basic Law IF you insist on using a block vote with simple majority method of nomination.
impala
Agreed. Of course the latter option would be completely impractical as well. If all Hongkongers need to vote on the nomination of candidates first, the nomination itself becomes the election. Either way you look at this, the idea of requiring the nomination of candidates by the committee as-a-whole is plainly unworkable.
blue
" If all Hongkongers need to vote on the nomination of candidates first, the nomination itself becomes the election. "

No. I mean Hong Kongers vote for the 1200 or whatever number of members into the Nominating Committee rather then the current very restricted sub sectors which make up of a very small electoral case.
321manu
"Beijing is wary of someone being elected who is known to be bent on undermining the legitimacy of the country's ruling party. Nevertheless, provided that the strict requirements of the Basic Law are satisfied, this eventuality is unlikely" --- I think Mr. Leung jumped the shark here. He's explicitly acknowledged that the whole process, if unfolded at the behest of Beijing, works to result in a CCP stooge at the helm. He's also forgotten that the CCP has no legitimacy in HK. HK is part of China, but HK is not part of the CCP.
This is what happens when someone starts with a pre-ordained conclusion, and tries to engineer "arguments" that lead down a rabbit-hole to their preferred destination. It's logic done backwards.
Instead of reading Basic Law like Newton's First Law (and let's remember Basic Law was imposed on HKers by non-HKers....when was the last time a legitimate constitution was imposed on a people rather than generated by those people?), I'd take it's call for democratic evolution, and put the remarkable intelligence of HKers to work in forging a system that works for them. Those who prefer a CCP system should go and live under it, rather than trying to impose it on their fellow HKers.

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