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