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  • Apr 17, 2014
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My Take
PUBLISHED : Thursday, 30 January, 2014, 3:56am
UPDATED : Thursday, 30 January, 2014, 3:56am

Democratic flaws built into Basic Law

In the constitutional debate over universal suffrage, neither side is telling the public the whole truth. However, an opinion piece by the justice secretary that appeared in major newspapers yesterday did hint at the reality.

We are under the thumb of Beijing. It's not just a matter of naked power but constitutional restraints. The Basic Law is not just about "one country two systems", it also bounds us to the central authorities in myriad ways. The legislative process that needs to be set in motion to achieve universal suffrage is a good example. Any such constitutional reform package has to be put forward by the Hong Kong government. Even after it has been passed by the local legislature, it still needs to be approved by Beijing, or more specifically, the Standing Committee of the National People's Congress.

Even after we have one person, one vote, it's clear from the language and intent of Article 45 in the Basic Law that a nominating committee will monopolise the power of prescreening and nominating candidates. This is the power that only it has, not the public. Or rather the public can only indirectly exercise its candidate selection through their representatives on the committee. And even after we have elected a chief executive winner, Beijing still has the constitutional prerogative to veto the public choice, though admittedly a nuclear option. If the power to nominate candidates rests solely in the committee, it cannot be a rubber stamp that has to accept whatever candidates are picked by the public or political groups, something called civic nomination as advocated by many pan-dems. Nor is the committee intended to have direct membership that would include all adult permanent residents.

The pan-dems are right that the constitutional set-up for universal suffrage as envisioned by Beijing and the Hong Kong government is not how most functioning and successful democracies operate today. What they know, but refuse to tell the public, is that such democratic defects or loopholes are built into and sanctioned by the Basic Law. The pan-dems should have the courage of their conviction, pick out flaws in the Basic Law and fight to amend them, instead of trying to square the circle by making it say what it clearly does not. An unwinnable battle, you say? Well, so is its fight for public nomination. But at least it will be an honest fight.

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DinGao
The democrats should push to get all ELECTED LegCo and DC members and VRs onto the NC. Once there they can be lobbied or persuaded to consider and nominate persons identified by whatever unofficial public polls they choose to implement and hope for the best.
blue
This would the best and most pragmatic option.
321manu
Actually, I don't think the "democratic defects" of Basic Law are all that obscure or nebulous. It seems many commentators on this site alone have pointed them out repeatedly. So Mr. Lo's premise seems hard to square with reality.
That said, I absolutely agree that those defects should be amended, as they would be in any truly democratic society. As I've often said, there's nothing unassailable about Basic Law. It's not a law for HKers. It's a law written in part by Beijing whose foremost purpose is to benefit Beijing's wishes. There is really nothing democratic about it.
On the other hand:
"If the power to nominate candidates rests solely in the committee, it cannot be a rubber stamp that has to accept whatever candidates are picked by the public or political groups, something called civic nomination as advocated by many pan-dems. Nor is the committee intended to have direct membership that would include all adult permanent residents."
This section is not based on logic or law. There is nothing that stipulates this committee cannot be a rubber stamping body. Like I've said, nothing prevents the public to add another layer to the nomination process, and simply provide the committee with one nominee-elect, then step back and let the committee do its thing. The committee would be doing the act of "nominating", and that squares with the letter of the law. Since the law is silent on this added step, there's no barrier to including all adult HKers in the process.

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