• Fri
  • Sep 19, 2014
  • Updated: 2:20am
CommentInsight & Opinion

Government should come clean about why it is so against civic nomination

Keane Shum says with so many theories of statutory interpretation available, it's hard to accept the government's seeming insistence on excluding civic nomination of candidates for the chief executive election

PUBLISHED : Monday, 10 February, 2014, 2:46am
UPDATED : Monday, 10 February, 2014, 2:46am

Some time ago, the chief executive and I exchanged letters, in these pages, on the topic of universal suffrage. In a developed society, I argued, it was an inevitable evolution, and Hong Kong was as ready for democracy as any society ever could be.

Leung Chun-ying wrote that any proposal "to elect the chief executive by universal suffrage is half-baked without proposing consequential changes to other provisions" and, far from guaranteeing universal suffrage, the Basic Law stipulates that "the appointment of the chief executive without any form of elections, let alone universal franchise, is allowed". He spelled the doom of a constitutional crisis if the central government refused to appoint whomever was returned by a direct election, and cited the "gradual and orderly progress" clause of Article 45 in calling for a slowly, slowly approach.

That was 10½ years ago. Mr Leung, are we there yet?

Ever since he took office, Leung and his administration have sounded no different than he did then, in 2003, as an executive councillor in the Tung Chee-hwa administration. Though the government has launched its public consultation, it seems to take every opportunity to constrict, rather than expand, the terms of the debate.

The latest example was Secretary for Justice Rimsky Yuen Kwok-keung's essay expounding on theories of statutory interpretation. Under the principle of expressio unius (to express one thing is to exclude another), he wrote, "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."

Is it so difficult? Why couldn't a political party, or any block of nominating committee members that holds enough seats on the committee to put forward a candidate, hold a civic nomination process to determine its nominee? To suggest that the only way a candidate could be nominated is for the entire committee to decide in isolation without consulting one another, or the constituents they are mandated to broadly represent, begs the application of another principle of statutory interpretation: reductio ad absurdum (reduction to absurdity), meaning a law cannot be interpreted to produce an absurd result.

Expressio unius, after all, is but one of many theories of statutory interpretation. Under the common law, there are no hard and fast rules for how to decipher legislation. Almost always, governments - and courts - cherry-pick the theory of interpretation that leads to the conclusion they favour. And for some reason, this government seems to keep insisting on theories of interpretation that limit the extent to which the public would be able to participate in elections.

I take Yuen's recent point about not letting the perfect be the enemy of the good, even if his reasoning (the prospect of being demoted in the Heritage Foundation rankings) is deeply misguided. Any realistic proposal must be one that 47 members of the Legislative Council, the chief executive, and the central government will accept. But this cannot mean the only acceptable proposals are those that bar opposition candidates; that would again be an absurd result that completely undermines the Article 45 requirement for democratic procedures. Perhaps it can simply mean that any proposal should ensure Beijing has a horse in the race.

One way to do this would be for all legislative and district councillors to comprise the entire nominating committee, whether they are directly elected or not, with a 10 per cent threshold to successfully nominate a candidate. Legco would maintain 70 members in its 2016 election, with those of functional constituencies reduced to 24 - thereby retaining veto power - rather than the 20 of 80 total members proposed by the Alliance for True Democracy.

This way, by not restricting appointed district councillors from membership (as called for by the alliance), the nominating committee would have 543 members, assuming the government continues to proportionally reduce the number of appointed district councillors to 34. Fifty-eight members of the nominating committee, or just over 10 per cent, would then be potentially Beijing-friendly. Three of those 58 could defect and the remainder could still nominate a Beijing-backed candidate for chief executive who, possibly on the strength of that endorsement, might well be the choice of a majority of Hong Kong voters.

Meanwhile, any party or coalition of parties that counts 55 of its members on the nominating committee could decide on its designated nominee however it chooses, possibly by holding its own primary election. This would hardly usurp the nominating power of the committee, and pan-democrats would be forced to show their true colours by revealing whether they are genuinely willing to let the general public decide their nominee.

This proposal is just one of many. Some are less feasible than others, but none of them can be considered half-baked any longer. The bread has risen. The central government has spoken: some form of universal suffrage will select the next chief executive. And, yes, the central government will then exercise its power of appointment, but if that is supposed to provoke fears of a constitutional crisis, remember that every decision of our courts is ultimately subject to review by the Standing Committee of the National People's Congress. Every day in Hong Kong is a constitutional crisis waiting to happen. Most Hongkongers accept that.

What most Hongkongers don't accept is being made to wait. When Leung parried my entreaties over a decade ago, he wrote, "The merits or otherwise of democracy and universal suffrage were not the subject of my article." It is about time we know where he stands on the merits.

If the government is bent on making the franchise as un-universal as possible, it needs to tell us why. What are the downsides of having the public involved in nominating candidates and why does the government think these outweigh the benefits?

Maybe there is a sound argument to be made here, and maybe the majority of the public agrees. But at least be honest with us, rather than hide behind theories of statutory interpretation and constitutional doomsday scenarios. I, for one, have waited long enough.

Keane Shum is a lawyer in Hong Kong


For unlimited access to:

SCMP.com SCMP Tablet Edition SCMP Mobile Edition 10-year news archive



This article is now closed to comments

the bell dings
though out of time
nogician is saved from pains
while mental constipation persists
another honorable defeat in the saga
of stupid lingo operator’s dismissal by a master
Baited and teased foish is struggling
with the scary threat to reveal
that he is spiderman disguised as a foish
foish knows best that a book can’t be foish,
only some alphabets in some formations are foish
to find out if foish genome is foolish
try “A Short Story: The Foolish Fish” free in the web
I’d pat the head of the foish hanging on the line
before leaving him to try metamorphosis thru constipation
we should return later to see
how foish wetted his pants in spiderman outfit
or a just new puddle underneath the same naked foish
droupout’s nogoic isn’t for discussion of opinions
ignorance and bias cause spiderish's constant misunderstanding
foish focuses always on the person
adhom is nogician’s specialty which he readily flaunts
rubbish lies and malicious stuffs which I’d flush
for socio-environmental sanitation
"Fear"? If this is the smack-down I lay on you when I am "afraid", I shudder to think how I'd tear you a new one if I was really applying myself. But hey, you made a 'funny'. Well done, m'boy.
Remember, you're the guy who doesn't know the word that, in your own mind, high school dropouts should have no trouble with. So you've already stipulated that you're inferior to a high school dropout. And you did that all by yourself. Just like the CCP, it seems shooting yourself in the foot might be one of your few skills.
Dude, a genome can't be "foolish". Since you can't do arithmetic, I doubt cytogenetics is your cup of tea. I suggest staying silent and be thought a fool, rather than speaking and removing all doubt...as you already did in the example above.
How am I imposing? I put them out there and you have no answer. But I couldn't care less what you thought. Why would I bother imposing anything on you? You're worthless.
And please, enough with the whining. Are you being 3 again? You don't need "permission" to comment. In fact, I encourage it, simply for the entertainment potential. I'm counting on you, m'boy!
Listen, if you have no rebuttal to Mr Shum, that's to be expected. No one is forcing you. I just like pointing it out cuz it amuses me. You do what you gotta do, and I do hope that involves more comments like this one here. The whining thing is new, there's humour potential there. The funny spelling stuff, you've already done. New material please.
baited nogician in fear cries “m’boy” and “parents”
disoriented he should visit his own parents in hospital
where the smartie has sent for the apple in their eyes
The big subtraction problem I need help relates to SNP
what is nogician’s real number, 1 or N
is the whole genome foolish or just a single nucleotide?
In any case the expressions are uncountable, so numerous
What and how to subtract to eliminate this nuisance
who can’t stop after both sides giving different opinions
That fool cries “m’boy” and involve “parents”
a dropout turned nogician in persistent attempts
to impose his “rubbish views” on the public
how to write and which words to use
nogician dictates that without his permission
one can’t stop commenting on an issue
I won’t mind to give nogician further explanations
about his various monikers and titles
smartie, nogician, gogician, foish, SAK, APHOMO … etc
but has he any right to force further comments
from another person on a third person’s opinion
he needs further comments simply because his is too stupid
to understand what’s been said and repeated
detelligent nogician
very well represents democrazy
Ahh, Pierce m'boy, you really are a belligerent CCP apologist loser. There are many of those on the internet. But you really take the cake. Well done. Your parents must be so proud.
I leave one comment summarizing the extent of your utter stupidity, and you respond with 3 comments over the course of 7 hours precisely demonstrating my point. It really is very kind of you to make my argument for me, as any sane individual reading your last 3 gems will realize that you "Can't subtract. Can't construct sentences. (don't) know what words mean. Uses words he knows to not be words. Can't distinguish one type of punctuation from another, and can't use any of them in any event."
Anyway, Mr. Shum makes some very good points here, with specific ideas for implementation. Here's hoping that someone from the puppet government has the stones to address them, and explain why some silly thing like the Rimsky Yuen interpretation of Basic Law (which he already admitted was "imperfect") would be a superior option for HKers. If it's anything like your "rebuttal", it would truly be an existential experience for HKers, for on the one hand it would be hilarious (and who doesn't enjoy a good laugh?), but on the other hand it would reinforce the realization of just the kind of idiots they have governing them.
It's too bad you don't have a bigger pulpit, Pierce m'boy. Your ability to entertain is base and crass, and overly reliant on potty humour. But it's free, and worth every penny.
A nonword I just came across
while reading economist an urban magazine
reminded me about the promised rainchecks
but first the nonword: englishization
the last paraG on the urban magazine p61 Feb15
Its earliest use can be traced to CNN in late 2010
“You won't find the word "Englishization" in the dictionary”
Back to last paraG p16 which ends describing gogician thus
“mistaking fluency for actual accomplishment”
So much to write about that fool
But as a Chinese saying warns
Give that rubbish a wide berth
Rainchecks for gogician to use when he is done
ie when a discharge of him appears
I used to just take a glance at the whole thing
not a continuous scan but a whole picture shot
to pick up a few words
but that’s in fact too much respect already for his rubbish
Only gogician who keeps good record knows
the number of hours he mentally constipates for each discharge
still no one‘d care to read his rubbish
gogician should pick up after himself as soon as he is discharged
Hence the rainchecks
Flush …..
fooish may keep timewatch running
mbf is back and helper is cleaning his digits
though 18 is the number
the way mbf searches the house for hidden oatmeal squares
shows he can do higher math than fooish
who is advise to adopt mbf’s ddemantia exercise
Yes the song
I knew which particular chanson before walking mbf
and the lyric was ready just to be written down
say five minutes for draft and more time for revisions
but I like all my chansons lieder and gors
can’t stand contaminating any purcell brahms …
I’ve substitutions ready
(… a ld phone call …)
I have better things to do
gogician go play ball
If I find the time I may come back briefly later
to give nogician rainchecks …
I need to run out with MBF
should be back in an hour
later on I’d write a song
but now before out of the door
a suggestion for Harry
who detelligent nogician might find childish
A child (c not C =/= pa of man ) holding a fishing rod smiling
nogician as a dumbbell-shaped fish (fish = foolish?)
(wait, wait, wait I’m coming .. must run … mbf is getting impatient)
fish line into end of fish alimentary tract on top
and out from feety fish mouth in bottom
binding fish belly tightly in the middle
the float is labelled nonword
the hook reads disintelligence in bracket
fish thought in a balloon dictating
“caricatures are for 3-year olds, harry”
Run now
for mbf to pass nogician
who then might proofread and pick
where he is
LOL. You used a word that you knew wasn't a word?!? The stupidity therein is staggering and defies description...and I've had lots of practice characterizing the variety and extent of your utter stupidity. Congratulations! You've finally exhausted my ability to properly describe your lack of intellect.
BTW, I used quotation marks; not brackets. It seems you possess an infinite capacity for saying stupid things. H/T to you, m'boy.
Can't subtract. Can't construct sentences. Doesn't know what words mean. Uses words he knows to not be words. Can't distinguish one type of punctuation from another, and can't use any of them in any event. The list of your deficiencies is endless. Have I missed anything?
But I see that, as you get dumber by the minute, your capacity for potty humour remains unabated. That's great news. I gotta say, you're really good at the potty humour. Not often is a 3 year old so capable of the potty-talk. Your parents must be so proud.
Anyway, 44 minutes between comments this time. Lemme guess: you took another hike, and came back dumber than when you started. Here's my question: is there a limit to how dumb you can become? You should be a genetic case study for CCP apologists. Even among that cohort, you are plumbing depths I've never seen before. Hey, you can be the first to reach new lows....and I know how much you enjoy being first.
Now it's time for me to consult a thesaurus. Not UD. But I need some variety in calling you stupid.
As a free word disintelligence is unbracketed
I employed it for a mission now accomplished
to draw out nogician’s bipolar disorder for illustration
that nogician fits the descriptions given by wiki his gospel
“social stigma, stereotypes, and prejudice against individuals”
disintelligence isn’t a word
just like Dred Scott wasn’t human
nogician bracketed his own disintelligence
unaware of semantic bastardization in his coconut
characteritically negician attempted verbal menstruation
Thank you 321manu
for your personal demonstration that you’re
inferior, all so inferior in intelligence and character
Un bel dì
Con onor muore
Try born again
No more use for nogician now and forever
I flush




SCMP.com Account