Hong Kong Basic Law

Screening is not the way to 'love China, love Hong Kong'

Inciting Beijing's patrons to bar defenders of autonomy from office is in no one's interests

PUBLISHED : Tuesday, 16 April, 2013, 12:00am
UPDATED : Tuesday, 16 April, 2013, 4:38am

Hong Kong appears on the verge of a constitutional crisis, launched when chairman of the National People's Congress Law Committee Qiao Xiaoyang proclaimed that candidates for chief executive in the promised universal suffrage must "love the country, love Hong Kong" and must not "confront the central government". He suggested screening candidates.

Qiao's criteria are widely interpreted as aiming to bar members of Hong Kong's pan-democratic camp from running for chief executive. Backing him up, Basic Law Committee member Maria Tam Wai-chu has even argued that universal suffrage does not include the right to run for office.

Basic Law Article 45 provides that the ultimate aim is "selection of the chief executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures".

The International Covenant on Civil and Political Rights (ICCPR), incorporated in Basic Law Article 39, guarantees "universal and equal suffrage" and the "right and opportunity … without unreasonable restrictions to vote and to be elected".

Basic Law Article 26 further guarantees "the right to vote and the right to stand for election".

The government has sought to sidestep these requirements by citing a colonial British reservation to ICCPR electoral requirements. The United Nations Human Rights Committee has long held this reservation no longer applies.

Additional Basic Law requirements are implicated. The right to confront government is a basic human right implicit in free speech. Disqualifying someone from office for advocating democratic reform would be a clear violation. Even Deng Xiaoping, in 1984, acknowledged that being a patriot did not require one to be "in favour of China's socialist system".

If, as Qiao argues, the Nominating Committee will select candidates by committee majority vote, then the pan-democrats will surely insist that the Nominating Committee be broadly representative, a standard the current Election Committee fails. The alternative to avoid improper vetting is the historically used low-nomination threshold.

Pan-democrats have no reason to support an electoral model that excludes popular choice and violates democratic principles. A nominee who embraced such a model would lack credibility to govern.

The most fundamental constitutional commitment of local officials under an autonomy regime, in addition to the dual loyalty Beijing so values, is the obligation to defend local autonomy.

Hongkongers' confidence must surely be shaken by the spectacle of Beijing's supporters constantly undermining autonomy by challenging democratic development and advocating the referral of multiple issues to Beijing.

Encouraging mainland political patrons to turn those who defend Hong Kong's autonomy into outlaws barred from political office hardly serves the interest of Hong Kong or China.

Professor Michael Davis, of the University of Hong Kong, is a constitutional law specialist.