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.
Hong Kong Bar Association rejects public nomination for 2017 chief executive election
Barristers reject key demand of pan-democrats but question notion that only 'patriots' can run
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Hong Kong's barristers have dismissed a key demand of the pan-democratic camp in the debate over the 2017 chief executive election - and described one of Beijing's criteria for the city's future leader as legally dubious.
In its submission to the government consultation on electoral reform, the Bar Association rules out the idea of letting the public choose or even suggest hopefuls when the city elects its leader for the first time. It says the Basic Law is clear that only a nominating committee can pick candidates, despite claims by some pan-democrats that public nomination is vital for a truly democratic poll.
But the association describes as "highly questionable as a matter of law" the idea that candidates must be patriots who "love the country and love Hong Kong", as Beijing officials and loyalists have repeatedly asserted.
Legal sector lawmaker Dennis Kwok said the submission set clear boundaries on the extent to which the nomination process could be used to "screen out" candidates critical of Beijing.
"The explicit language of Article 45(2) of the Basic Law does not envisage nominating other than by the [committee]. Likewise … [the clause] rules out a nominating committee consisting of the whole of the electorate or each and every registered voter," the association says in its 40-page submission.
The clause of the mini-constitution states that the chief executive should be elected by universal suffrage upon nomination by a "broadly representative" nominating committee that follows "democratic procedures".
Some pan-democrats argue that those words do not prevent a system in which the committee would have to approve, or at least consider, candidates with a certain level of public support.
But the association says such a system would inhibit the committee's ability to "act on its own". It adds: "The nominating committee cannot be required by legislation to nominate a person who has fulfilled a certain characteristic (whether … by reason of his being able to demonstrate the support of a certain number of electors or a certain proportion of the electorate). Such an arrangement cannot be reasonably described as the nominating committee acting on its own."
Even a system in which the committee selected a fixed number of candidates from a list "recommended" by voters could constitute an "impermissible fetter" on the committee's power to select candidates.
But elsewhere in its submission, the association casts doubt on the criteria set by Beijing and local government officials for the 2017 race.
Insisting that candidates must be patriots would be "highly questionable as a matter of law" as it would contradict other parts of the Basic Law, it says.
Because of uncertainty in the meaning of the phrase "love the country, love Hong Kong", such a requirement "cannot possibly be a reasonable restriction" on the right to stand for election guaranteed elsewhere in the miniconstitution. Placing a cap on the number of candidates, as some have suggested, would "infringe the authority and liberty" of the nominating committee, the association says.
Chief Secretary Carrie Lam Cheng Yuet-ngor said on launching the consultation that the patriotism requirement was "self-explanatory", while Basic Law Committee chairman Li Fei said last year that the city's leader must "love the country and Hong Kong".
The consultation ends on Saturday. The government is expected to put forward a reform plan later this year.