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.