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.
Screening out popular candidates does not accord with Basic Law intent
Dennis Kwok looks back at how Basic Law drafters arrived at the wording of Article 45 and says their intent was never to bar candidates with public support from the chief executive election
Last month, Chief Secretary Carrie Lam Cheng Yuet-ngor invited Li Fei , the Basic Law Committee chairman, to visit Hong Kong, ostensibly to improve our legal understanding of the relevant Basic Law provisions.
Article 45 of the Basic Law provides for the method for selecting our chief executive "by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures". The term "democratic procedures" has a decisive impact on whether the 2017 election will adopt universal suffrage in its truly democratic form. What exactly did the Basic Law drafters mean by this term?
In 1988, in preparation for the then upcoming first round of public consultation, the drafting committee issued the first draft of the Basic Law. Article 45 at that time only provided that the method for selecting the chief executive "may be modified" in light of the actual situation of Hong Kong and in accordance with the principle of gradual and orderly progress - without specifying an end goal or even a general direction, and leaving five vastly different proposals in the draft.
Subsequently, Hong Kong drafter Louis Cha proposed what was then considered an ultra-conservative compromise proposal: the first three chief executives would be elected by a "broadly representative" Election Committee; a referendum would then be held in 2011, the passing of which would mean that the fourth chief executive would be elected by way of universal suffrage, and the Election Committee transformed into a nominating committee.
The Hong Kong public vehemently opposed Cha's proposal for greatly delaying the timetable for universal suffrage. In the meantime, when the mainland drafters came to Hong Kong for an exchange visit, certain members of the Basic Law Consultative Committee took the opportunity to express their view that it would be contrary to democratic principles for chief executive candidates to be selectively nominated via "consultation" among a privileged few, while capping the number of candidates would be unfair and undemocratic.
Despite Hong Kong people's opposition, Cha's proposal still received majority support from the drafting committee, and Article 45 was accordingly amended in the second draft to include the stipulation quoted above.
We can deduce from the historical development of Article 45 two rather crucial legislative intentions. First, the drafters anticipated and planned for Hong Kong to achieve genuine democracy with universal suffrage. Second, Hong Kong and mainland drafters all recognised that entrusting the nomination of chief executive candidates to a committee might well violate fundamental democratic principles. To counter these anti-democratic tendencies, "broadly representative" and "in accordance with democratic procedures" for nomination were added specifically to ensure that the method of selection is consistent with the objective of universal suffrage. In light of this historical background, it is not difficult to understand that the phrase "nomination … in accordance with democratic procedures" means plainly a nomination procedure that accords with democratic principles. This means that any procedure adopted must reflect the general public views. Under such a legal framework, the practical effect of "democratic procedures" is that the nomination committee must not screen out candidates supported by the public, and must instead allow anyone who has obtained a sufficient level of public support to become a candidate.
There are actually many ways to achieve this - civic nomination, nomination by political parties and/or a "low threshold" nomination by a broadly representative nomination committee, just to name a few - but one thing is certain: there must be no capping of the number of candidates nominated. Consider this scenario: if the maximum number of candidates were three, and in reality four candidates had each obtained a fair share of the public's support, it would be unfair, unreasonable and certainly undemocratic for the nominating committee to screen out any one of them. Li's legal analysis of Article 45 is in reality not much more than a repackaging of what his predecessor Qiao Xiaoyang had already said before, namely that the chief executive must be a person who "loves the country and Hong Kong". But "love the country and Hong Kong" is a political requirement that must not supersede the legal requirements found in the Basic Law.
Rather than putting the cart before the horse and trying to dig a loophole out of the term "democratic procedures", why not refrain from rigging the nomination procedure, and try to secure enough public support for the central government's favourite candidate to win in a general election?
This is a goal that the central government and the pro-establishment camp should strive to achieve. They should not waste any more time and brainpower on conjuring up a system which would screen out others.
Dennis Kwok is a member of the Legislative Council for the legal functional constituency and a member of the Civic Party