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  • Aug 22, 2014
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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

Civic nomination for 2017 is plainly inconsistent with the Basic Law

Rimsky Yuen says the Basic Law makes it abundantly clear that only a nominating committee has the power to put forward a candidate for the chief executive election in 2017 and beyond

PUBLISHED : Tuesday, 28 January, 2014, 8:20pm
UPDATED : Wednesday, 29 January, 2014, 3:36am

Almost two months has elapsed since the commencement of the public consultation on constitutional development. Civic nomination and nomination by political parties are two of the more controversial topics. In short, the former would allow direct nomination of a chief executive candidate by a specified number of registered voters, while the latter would allow direct nomination by political parties that have obtained a specified number of votes in the preceding Legislative Council election.

The question of whether these proposals are consistent with the Basic Law has attracted divergent views.

Whether any proposed nomination method is consistent with the law turns on the proper interpretation of the Basic Law. Article 45 stipulates as follows: "The method for selecting the chief executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. 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."

As the language of this provision is abundantly clear, the government has all along stressed that any proposal bypassing the nomination procedures of the nominating committee or undermining its substantive nomination power might be inconsistent with the Basic Law.

Some take the view that, when interpreting the Basic Law, one must avoid a literal, technical, narrow or rigid approach. Instead, one should adopt a purposive approach so as to ascertain the legislative intent. Others stress that the Basic Law, being a constitutional document, is a "living instrument" and its interpretation should meet the changing needs and circumstances of our society.

While these views are consistent with the basic principles applicable to the interpretation of the Basic Law, they do not pay sufficient heed to the clear language of Article 45.

As expounded by the chief justice in a lecture last year, titled "The Interpretation of Hong Kong's Constitution: A Personal View", "the common law method of interpretation, whether of a contract, a statute or the Basic Law, is to assume that the intention behind a provision is to be found primarily in the words actually used. If the words themselves are clear and unambiguous, there may be little room or need to go further; quite simply, the words mean what they say".

The suggestion that the Basic Law is a "living instrument" is itself not sufficient to render civic nomination or nomination by political parties consistent with the Basic Law. While the Basic Law may be interpreted to meet changing needs and circumstances, the court cannot ignore the clear language used or else the court would have assumed the role of the legislature.

Besides, the relevant interpretation and decisions of the National People's Congress Standing Committee were only made in April 2004 and December 2007, and not the distant past. It is difficult to see any changes of circumstances that can justify the inclusion of civic nomination or nomination by political parties under Article 45.

Article 45 aside, some opine that Article 25 ("all Hong Kong residents shall be equal before the law") and Article 26 ("Hong Kong permanent residents shall have the right to vote and the right to stand for election in accordance with the law") are also relevant. I do not dispute this view.

However, the general provisions of these articles cannot override the clear language and specific provisions of Article 45, let alone undermine the nominating committee's substantive nomination power.

Others suggest that civic nomination and nomination by political parties are not expressly disallowed by, and thus cannot be inconsistent with, the Basic Law. Putting aside the legislative history of the Basic Law for the time being, such a view ignores a basic common law interpretation maxim, the expressio unius principle: to express one thing is to exclude another. Since Article 45 specifies the nominating committee as the body which has the power to nominate candidates, it follows that other individuals or bodies are not intended to have any nomination power. The logic is crystal clear.

Consider this example. Article 59 of the Basic Law stipulates that the government shall be the executive authorities of Hong Kong, and Article 62 sets out its powers and functions. The Basic Law does not expressly say that the Legislative Council cannot exercise executive powers and functions. Can it then be argued that the legislature can exercise executive powers? The answer is plainly "no".

In the document, "Finding the Right Path to Universal Suffrage - What the Government is Not Telling You" prepared by the Civic Party and Hong Kong 2020, it is contended that "civil nomination" and "nomination by political organisations" are consistent with the Basic Law stipulation that the nominating committee must carry out its work "in accordance with democratic procedures". The document does not contain any elaboration or analysis, but such a contention has apparently confused "nomination power" with "nomination procedure", and also the distinct concepts of nomination and recommendation.

Take civic nomination as an example. If the nominating committee cannot decline to nominate an individual once he or she has obtained the support of a certain number of registered voters, the committee's nomination power would become meaningless. It is difficult to see how it can be suggested that such a proposal does not impact upon the nomination power but only the procedure.

Civic nomination and nomination by political parties are not the only means to achieve universal suffrage. The community should consider approaching the issue of nomination in a pragmatic manner and in a way consistent with the Basic Law.

Rimsky Yuen, SC, is secretary for justice


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This article is now closed to comments

Dai Muff
Then let us vote for the nominating committee. Problem solved.
Constructing the nominating committee to include all registered voters in the HKSAR would not violate the Basic Law and would be most representative representative of the notion of "broadly representative". Beijing's efforts to exclude certain candidates is actually against the Basic Law as written which indicates that all Hongkongers are equal. Denying an opponent of Beijing an opportunity to be a candidate would be a violation of the equal protection and application of the Basic Law to all Hong Kong residents who would otherwise be eligible to vote and/or stand for office.
The argument that just because the nomination committee might not be able to eliminate a candidate nominated by civic nomination is specious insofar as neutering it of its ability to nominate. If anything, it only restricts its powers to EXCLUDE but not to nominate.
The Basic Law allows sufficient ambiguity for a very widely formed nominating committee such as one consisting of all registered electors. Decisions and desires of the National People's Congress Standing Committee are another issue but to date there is no explicit ruling against such a formation. As such and until such time there is, the possibility of civic nomination should be considered viable. A 'rule of law' society requires laws to be written down not just pulled out of the air when an undesired application of the law arises. Opinions in Constitutional Development Task Force reports do not carry the rule of law. Period.
The NC mechanism must stay but that mechanism must serve the ends of democracy. That's what the Basic Law says (and Yuen supports that). Move the debate squarely to the NC membership arrangements. End its crony structure; give all directly elected Legislative and District Councillors nominating rights for multiple NC seats.
Mr. Yuen's position is well-stated and well-argued. Unfortunately, his position is derived from the premise that Basic Law must be unassailable. I see no reason to subscribe to that theory. In fact, it seems the only ones who do are the same people who would prefer to simply hide behind the language of the law, rather than to apply it in the context of reality.
Regardless, even if Mr. Yuen insists on being needlessly rigid on the concept of Basic Law, there is an easy and simple work-around. I've suggested this on other threads before. Simply add a step to the rigid Basic Law structure: have the public nominate and vote on the position of "chief executive nominee-elect". Do so "in accordance with democratic procedures". At the conclusion of that process, Mr. Yuen's precious " broadly representative nominating committee" will have the honour and privilege of officially nominating the nominee-elect for the position of chief executive. Since Mr. Yuen seems more interested in enforcing the letter rather than the spirit of laws, I'm sure he will find this more than satisfactory. Now, some might say that the nomination committee would be rendered a rubber-stamping body...and they'd be right. And since Basic Law is silent on the gravitas that said committee deserves, there's no problem. Besides, the current CE is a rubber-stamping automaton for Beijing, so the concept should hardly dumbfound senior politicos.
This is there assumption but its not clearly unconstitutional. There are many ways around it as well. The nominating committee could be elected...they can do whatever they want and until its declared unconstitutional by a court (or by the dictatorship of the proletariat), it passes muster. Personally, I believe electing the nominating committee would put pie in Beijing's eye, as long as it can be prevented from being rigged and ALL members would have to be elected.
sudo rm -f cy
The Basic Law is plainly inconsistent with the fundamental rights of Hongkongers.
At best only civil recommendation could be an available option where people can recommend candidates for the nomination committee to consider. Additionally I think all directly elected lawmakers and district councilors should be included in the nomination committee to satisfy democratic procedures as mandated by the Basic Law.


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