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
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".