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Basic Law

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.

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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

PUBLISHED : Monday, 28 April, 2014, 6:11pm
UPDATED : Tuesday, 29 April, 2014, 8:51am


  • Yes: 66%
  • No: 34%
29 Apr 2014
  • Yes
  • No
Total number of votes recorded: 256

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.

[The patriotism criterion] cannot possibly be a reasonable restriction

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.



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This article is now closed to comments

These guys are lawyers and not judges, so their job is to follow the letter of the law rather than interpreting it. In that regard, they are Basic Law 'literalists', so it is not surprising they have come out against public nomination.
However, they have also come out against Beijing's weird and unsubstantiated requirement that CE candidates must agree to be CCP lackeys. That's even more reassuring. The reason to insist on public nomination is to eliminate the possibility that Beijing rig the process to only nominate yes-men and yes-women. By eliminating any legal facade of 'loving the CCP', the legal framework essentially achieves this. Of course, that won't necessarily prevent CCP lackeys on the nominating committee from subverting the law, but that is to be expected, and unfortunately the price HKers will have to pay.
Nice to see too that the Bar Association is logically internally consistent. That is a rare quality in these pages sometimes.
Beijing is opposed to public nomination for fear that someone they dont like can enter the fray. What they need to come to grips with is the nominating committee, in its present form, is distrusted by the public to do a good job. So what has to be done, in a show of sincerity, is Beijing or rather its followers eg DAB, can come up with a sound proposal on the composition of the nominating committee. The one proposed by DAB last week was simply awful.
"Patriotism" and "must love the country and Hong Kong" are not words which appear in the Basic Law.
So much for Beijing's respect for the Rule of Law. Hong Kong has become like China where the Orwellian maxim in 'Animal Farm' applies: "All animals are equal, but some animals are more equal than others."
Let's step back and look at the United Nations Universal Declaration of Human Rights, which reflects a deep and historical understanding of the rights of all people and democratic values. I believe much of Hong Kong's woes can be traced back to the rigged "rotten borough" election system and the lack of a truly legitimate elected government. HKers should have the opportunity to freely choose their leaders in a legitimate and democratic election process, and laws must facilitate this to be legitimate themselves.
Article 21.
• (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
• (2) Everyone has the right of equal access to public service in his country.
• (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Basic Law Article 45
The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People's Government.
The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.
The specific method for selecting the Chief Executive is prescribed in Annex I: "Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region".
Annexe 1 *7. If there is a need to amend the method for selecting the Chief Executives for the terms subsequent to the year 2007, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People's Congress for approval.
The SCNPC rules the game
Tanna Chong drops the ball yet again. What did the Bar have to say about the nomination process they recommend? The SCMP fails again and again in balancing the extremist (and illegal and ultimately irrelevant) debate about public nomination on the one hand and "not opposed to Beijing" on the other with the core issue which is about the constitution and procedure of the NC.
Your headline people are at it again! 29 APR 2014 Poll:
Is the Hong Kong Bar Association correct in saying that the Basic Law rules public nomination?
Yeah, where is the 'out'?


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