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.
Nominating committee's vital role in safeguarding Hong Kong's interests
Johnny Mok says the requirement for a 'broadly representative' nominating committee serves the vital function of safeguarding the interests of key sectors, and our capitalist system, while providing a check against populism
Article 43 of the Basic Law provides that the chief executive shall be accountable to the central government and the Hong Kong Special Administrative Region. These two obligations do not sit well together in the mind of some people - those who regard the accountability to Beijing as being paramount; and others who insist that the will of the people of Hong Kong must take precedence.
The divergent, and sometimes selective, attention being paid to the provisions of the Basic Law has made it extremely difficult for a compromise to be reached on the important subject of election of the chief executive by universal suffrage.
Among the wide spectrum of views expressed, however, one common point may have emerged - Beijing does have discretion to decide whether or not to appoint an elected chief executive candidate. Some even suggest that this power alone is sufficient to protect the central government's interests - the so-called "guarding the final gate" theory.
This theory belies a much more fundamental concession. It implies that the election result could somehow be overridden by an exercise of discretion by Beijing. If the discretion is an unfettered one, this theory cannot possibly be rationalised by reference to the principle that the election result must reflect the free expression of the will of the electors, in accordance with Article 25 of the International Covenant on Civil and Political Rights. There are, indeed, other important constitutional principles at work.
The Basic Law guarantees the preservation of the "capitalist system and way of life", subject to the mandatory principle of balancing the budget, and the further assurance that the "socialist system and policies shall not be practised" in Hong Kong (Articles 5 and 107). To achieve this, the constitution confers on the chief executive the responsibilities to implement the Basic Law and to decide on government policies and to issue executive orders (Article 48).
To date, the chief executive has been elected by a "broadly representative Election Committee" comprising four sectors, as defined in Annex I. The justification for such a structure was the maintenance of stability and prosperity.
In 1990, chairman of the Basic Law Drafting Committee Ji Pengfei made clear in an address to the National People's Congress that Hong Kong's political structure shall "aim to maintain stability and prosperity in Hong Kong in line with its legal status and actual situation. To this end, consideration must be given to the interests of the different sectors of society and the structure must facilitate the development of the capitalist economy in the region". Further, as stated in a 2007 decision of the NPC Standing Committee, the nominating committee may be formed with reference to the current provisions regarding the Election Committee in Annex 1 of the Basic Law. Since the Election Committee based on the four sectors is (as described in Annex I) "broadly representative", a nominating committee modelled after it would likewise satisfy this constitutional requirement. The historical role of a committee so structured was to maintain stability and prosperity, and facilitate the development of the capitalist economy.
The global state of democracy was analysed in depth in a recent article in The Economist, covering situations in the Middle East, the US, European Union, South America and beyond. In describing the extent to which some democracies have degenerated, the author noted that the "border between poking fun and launching protest campaigns is fast eroding".
"This popular cynicism about politics might be healthy if people demanded little from their governments, but they continue to want a great deal," the article said. "The result can be a toxic and unstable mixture: dependency on government on the one hand, and disdain for it on the other. The dependency forces government to overexpand and overburden itself, while the disdain robs it of its legitimacy. Democratic dysfunction goes hand in hand with democratic distemper."
Hong Kong may not be a paragon of democracy, but it is a paragon of stability and prosperity. The architects of the Basic Law have laid out a political road map built on the previous system of sector-based representation. A sector-based structure will remain (through the transformation of the Election Committee into the nominating committee) as a feature of universal suffrage. The committee's composition may of course be modified to make it more "broadly representative", with a view that the ultimate result better reflects the will of the electors. But this is by no means its only function. Unlike other democracies, the Hong Kong SAR is constitutionally mandated to guard itself against any degeneration into an overexpanded and overburdened economy. The participation of representatives of the key sectors in the nominating committee means inevitably that the candidates will be nominated from the perspective of not only the populace, but also the interests of the sectors they represent. It is a check against populism and toxic instability in the future.
Strategically, the preservation of Hong Kong's capitalist system and way of life also happens to be a goal of the country and, by extension, the central government. "Loving the country and loving Hong Kong", while not being expressed as a legal prerequisite to election as chief executive, is nevertheless reflected in the spirit of Article 43 - the chief executive must be accountable to both Beijing and the Hong Kong SAR, "in accordance with the provisions of [the Basic Law]". These include, as one of the constitution's main tenets, the maintenance of capitalism and the forsaking of the socialist system and policies. This is not just a matter of taking the chief executive oath post election.
By design, the candidates must undergo the democratic procedure of nomination by the nominating committee and, if nominated, election by universal suffrage - a combined process through which they will have ample opportunities to demonstrate their capability of performing the dual obligations in accordance with the Basic Law.
Johnny Mok is a senior counsel and member of the Basic Law Committee