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.
Government's commitment to Basic Law text cannot be selective
Michael Davis says officials should take account of its full meaning
The government has argued that civic and party nominations of chief executive election candidates being promoted by the democratic camp are contrary to the Basic Law. Both the chief secretary and the secretary for justice have based this view on what they argue is the plain meaning of the Basic Law text.
This commitment to the meaning of the text is admirable but we may ask whether the government is prepared to take account of the full text.
Article 45 says: "The method of 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."
There is a clear distrust of the government's intentions, in light of statements by Beijing and local officials suggesting either direct vetting of candidates or some sort of nominating process that effectively achieves the same thing.
Can the competing views of Article 45's requirements be reconciled? What would satisfy the textual requirement of a "broadly representative nominating committee"?
The 2007 National People's Congress Standing Committee decision suggested that the nominating committee may be formed "with reference to the current provisions regarding the Election Committee". Hong Kong and Beijing officials frequently endorse this statement. Yet commentators generally agree that the Election Committee is not broadly representative. In fact, it represents only a small minority of the public.
The government next argues that the nominating committee as a whole must make nominations in accordance with "democratic procedures". For years, the government has claimed to have a democratic process within the Election Committee to elect the chief executive. That process has, in the past, require d as few as 100 nominations. Why would nomination now require a popular vote by the entire nominating committee? Would not a lower threshold be in the spirit of universal suffrage?
Beijing and local officials have also suggested the number of candidates be limited to three or four. The Basic Law t imposes no such restraint and the Standing Committee decision merely says "a certain number of candidates". Suspicious members of the public may wonder if this limitation is designed to use "democratic procedures" to eliminate democrats. The most important language in the text should clearly be "universal suffrage", a basic human right.
Finally, the Basic Law text makes reference to the "actual situation" in Hong Kong. Even pro-government politicians sometimes acknowledge that genuine democracy is badly needed to afford our chief executive the legitimacy required to govern effectively.
The government's passion for the plain meaning of the text is rather surprising given the flexible interpretation it seems prepared to apply to these other provisions.
It is apparent that a government fully committed to the universal suffrage provided in Article 45 would take account of the commonly understood meaning of the full text.
This might include a truly representative nominating committee and a low enough nomination threshold to achieve genuine universal and equal suffrage. It might also include a process where the nominating committee seriously consults the public in making nominations. The committee could still make the final nomination in accordance with any statutory requirements guided by the aim of universal suffrage.
Professor Michael C. Davis of the University of Hong Kong is a constitutional law specialist