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.
Strike a middle path on Hong Kong's electoral reform for 2017
Michael Davis says since the proposals for electoral reform put forward by those at either end of the political spectrum fail the Basic Law test, efforts must focus on more moderate ideas
As the consultation over the method for selecting the chief executive in 2017 comes to an end, there is a need to evaluate various proposals. Much of the discussion has focused on what Beijing will or will not accept. This ignores too much the standards that should be applied, as laid out in the Basic Law.
The focus on Beijing's intentions is understandable; political compromise will certainly be part of this debate. But discussion of compromise should not neglect Basic Law requirements.
Any choice by Beijing to ignore or "interpret away" such requirements would imperil more than a free and fair election. Surrendering legal requirements to political expediency would imperil Hong Kong's most enduring value - the rule of law, a value at the heart of the Basic Law.
Article 45 states: "The ultimate aim is the selection of the chief executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures." Terms such as "universal suffrage", "broadly representative" and "democratic procedures" should be given their ordinary meaning.
The requirements of the International Covenant on Civil and Political Rights are included in the Basic Law, both by virtue of its incorporation in Article 39 and by its widely recognised role in defining universal suffrage.
It is not in Hong Kong's interest to deny free and fair elections. A modern democratic Hong Kong will surely not want to hide behind a 40-year-old British colonial reservation to the international covenant's democracy requirements. Such a reservation has long been rejected by the UN Human Rights Committee.
Accordingly, compliance with the Basic Law necessitates compliance with the covenant's requirements guaranteeing the right "to vote and be elected at genuine periodic elections … by universal and equal suffrage … guaranteeing the free expression of the will of the electors".
If a proposal violates the covenant, it violates the Basic Law, though it may be possible that a proposal that complies with the covenant does not fully comply with the Basic Law, as regards nomination by the nominating committee.
At an absolute minimum, both the covenant and the Basic Law require that the voters be given a free and fair choice of candidates.
The nominating committee is itself an official body whose election should be based on fair and equal voting. The National People's Congress Standing Committee suggested in its 2007 interpretation that reference be taken to the Election Committee in forming this committee. If this is to be done, then the sectors for electing members should be broadly expanded and the constituencies for electing each member should be roughly equal. Corporate votes should be eliminated.
The Basic Law requirements of not discriminating against any class of voters should be complied with. An expert working group could be set up to help expand the voter base for electing this committee.
The committee should likewise meet both the Basic Law and the covenant's requirements in exercising its function. Candidates seeking nomination should not be discriminated against, either directly or indirectly, based on their status or political opinion. Loyalty can be assured by a statutory oath.
Any procedure followed by the nominating committee must give the voters a free and fair choice. The unusual circumstance of a single committee nominating candidates of all political leanings surely compels a sufficiently low threshold to ensure opposition candidates can be nominated. Efforts to manage the outcome by requiring a majority vote in the nominating committee would fail the test of fairness.
The proposals put forward during the consultation fall roughly into three categories. On the most democratic side of the spectrum are those from groups such as Scholarism, People Power, the League in Defence of Hong Kong Freedoms and the Alliance for True Democracy. While these proposals meet the covenant's standards, they may run foul of the Basic Law. Beijing will object to the lack of reference to the Election Committee, while binding civil or party nominations could reasonably be challenged under the Basic Law requirement of nomination by a broadly representative committee.
The middle tier is represented by proposals that do make reference to the Election Committee and forego civil nominations. They include those from myself, a group of 18 scholars, Hong Kong 2020 and Civic Party legislator Ronny Tong Ka-wah. Two of these proposals include a non-binding public recommendation component aiming to demonstrate public support.
All four of these proposals set the nomination threshold at one-eighth or 10 per cent of the members to ensure the voters are given a free and fair choice. If steps were taken to afford universal and equal voting for the nominating committee, these proposals would all pass muster under both the covenant and the Basic Law. I suggest employing an expert working group to address this problem.
The most conservative proposals have come from the establishment camp, including Chan Wing-kee, a member of the Standing Committee of the Chinese People's Political Consultative Conference, the Liberal Party, and the Democratic Alliance for the Betterment and Progress of Hong Kong.
These proposals all take reference to the Election Committee with some expansion. They employ a 50 per cent nomination threshold and limits on the number of nominees.
Such requirements will indirectly deny the voters a free and fair choice. The nominating committee formation likewise lacks fair and equal voting for members. Consequently, these proposals violate both the Basic Law and the covenant. Allowing more than one vote by a member does not fix these defects.
Numerous other proposals fit typically into one or other of these three camps. Given the obvious Basic Law compliance difficulties on both ends of the spectrum, the path to compromise, guided by Basic Law requirements, may lie with some consolidation of the middle-tier proposals.
Professor Michael C. Davis of the University of Hong Kong is a constitutional law and human rights specialist