Government yet to convince on its case for 2017 nomination process

Suzanne Pepper questions the limits set on nomination process for 2017

PUBLISHED : Wednesday, 12 February, 2014, 6:26pm
UPDATED : Thursday, 13 February, 2014, 2:01am

Secretary for Justice Rimsky Yuen Kwok-keung has argued in effect that only the existing Election Committee recast as a nominating committee will do for the 2017 chief executive election. Public participation, he said, would be "illegal", and warned that any turmoil born of local frustration could undermine confidence in our economic stability.

Yuen has thus set himself two tasks: one legal, the other political. Besides demonstrating that the nominating committee is indeed the only legal option, he must convince a sceptical public. For that to happen, however, he must do a better job of answering questions raised over the government's consultation document summation.

Two points need explaining. One concerns the route whereby the Election Committee is presented as the sole basis for the 2017 nominating committee. Another concerns the design of the committee itself.

All arguments begin with Basic Law Article 45, about the aim of selecting the chief executive by universal suffrage "upon nomination by a broadly representative nominating committee in accordance with democratic procedures".

All official sources trace their insistence on using the Election Committee model for a nominating committee to the 2007 National People's Congress Standing Committee decision. It said the body in question "may be formed with reference to" the existing Election Committee. But it didn't say "must" be formed. And how binding could "with reference to" possibly be?

The consultation document answers this question, explaining that the phrase "with reference to" is a mainland term and is "binding" in mainland law. Yet no such precedent exists in Hong Kong law, as Yuen has acknowledged. Nor does the document explain the apparent contradiction with Article 18 promising that "national laws shall not be applied in Hong Kong". Does the government now mean to override this promise, too, along with those about equality before the law (Article 25) and the right to vote and stand for election (Article 26)? Yuen said these must not supersede Article 45.

He then made his political task more difficult by saying nothing about the specific design of the committee. Popular demands for other types of nomination might not have arisen had the government shown any interest in addressing critics' long-standing concerns.

Article 45 calls for a "broadly representative" committee. The public might be more inclined to respect its legality if the government would explain how it aims to interpret the word "representative" here.

Perhaps focusing on another Article 45 phrase would inspire more official activism. Reforming chief executive selection procedures, it says, must be done "in the light of the actual situation". The Election Committee was designed in the late 1980s when Beijing was fearful of what were then called Hong Kong's "liberal" ballot-box preferences. Today, loyalist forces are approaching parity with pan-democrats, if the vote count for the 2012 Legislative Council super-seat candidates was any indication.

Loyalists and allies also enjoy majorities on all 18 district councils. So why is Yuen not proposing to remodel the Election Committee in light of the actual political situation?

Better yet, he might revisit "may be formed with reference to" and find creative ways to let the public have its say. If not, he will be forced to override the spirit of three Basic Law promises, which may invite the turmoil he fears. His course does not follow his own preference for a literal interpretation of official texts, since "may" does not mean "must".

Suzanne Pepper is a Hong Kong-based writer