Hong Kong's pan-democrats should seek an increase in the number of chief executive election candidates

Simon Young says the pan-democrats should pull back from their futile strategy and focus on putting forward a workable and meaningful counterproposal

PUBLISHED : Wednesday, 29 April, 2015, 5:22pm
UPDATED : Wednesday, 29 April, 2015, 5:22pm

Pan-democratic legislators have been calling for the withdrawal of the August 31 decision of the National People's Congress Standing Committee and for the reform process to begin anew. That's not going to happen in the current chief executive's term. Why do they ask for so much? Here's a novel idea: ask for only one of the restrictions in the August decision to be amended. Counter-propose that the number of candidates be from two to five, that's two more than the current maximum of three. Huh? What difference would that make for the pan-democrats, and why would the central government even entertain that now?

Need I highlight how significant such a concession would be when the central and Hong Kong governments have been saying all along that the August decision will not be changed. It would be the strongest confirmation that, with improved trust between the parties, the "actual situation" can be such that changes to the August decision become possible. The concession will be significant enough for the pan-democrats to seize it without appearing to back-pedal, and, far from losing votes, they stand to widen their vote share in the 2016 Legislative Council election, given the growing majority that wants political reform. But, most importantly, the change is needed because under the government's proposal, pan-democratic or other moderate legislators might (just barely) obtain the 50 per cent support from the nominating committee but not come within the top three positions to be nominated.

Of the three restrictions in the August decision, the one limiting the number of candidates is the most dispensable. The other two have some basis in either the words of Article 45 of the Basic Law or in the National People's Congress Standing Committee's December 2007 decision. Restricting the election to "two to three candidates" is driven entirely by expediency. Basic Law Committee chairman Li Fei 's explanations for this restriction are unconvincing. It is to "ensure a truly competitive election and present voters with real choices". More candidates would make it even more competitive with really real choices. It would also "serve to avoid problems such as complicated electoral procedures and high election costs caused by having too many candidates".

Having two more candidates cannot make it more complicated than the vote choices in district council, Election Committee and Legco (functional and geographical) elections. Any additional costs of accommodating two more candidates would surely not be substantial. Finally, it is said that it "fits relatively well with the experience gained from previous [chief executive] elections". But we have never had an election in which Election Committee members could nominate more than one candidate (as now proposed by the government) - this is quite significant.

However, the most serious criticism of the "two to three candidates" restriction is that it could work contrary to the democratic principle of majority rule contained in Article 45 itself. Why should a recommended candidate who has majority support from nominating committee members be denied the opportunity to stand for election? The restriction in its current form does exactly this, arbitrarily or only for convenience sake. To deny nomination to a fourth or fifth candidate who has majority support in the nominating committee is to frustrate that committee's constitutional power of nomination and to defy the majority rule principle within Article 45. There needs to be flexibility, and extending the limit to five candidates makes much more legal and practical sense.

Now, why does this matter at all to pan-democratic legislators, generally assumed to be unable to secure 50 per cent support from an Election Committee turned nominating committee? With nominating committee members having the power of multiple nominations, we need to question this assumption. Nominating committee membership can be roughly divided into three categories: first, those willing to support only pro-establishment candidates; second, those willing to support both pro-establishment and non-establishment candidates; and third, those willing to support only non-establishment candidates.

From the results of the 2007 election, the third category could be as high as 16 per cent (being the proportion that voted for Alan Leong Kah-kit). The question is how large is the second category? Is it more than 34 per cent, such that a pan-democrat candidate could have more than 50 per cent support? There is no experience here because never before did committee members have the power to nominate or select more than one candidate. Perhaps with awareness of this historical battle over nominations and with the protection of the secret ballot, there will be a sufficiently large proportion of members from the second category, simply because they want to see a wider spectrum of candidates in the general election. Of course, much will depend on who the candidates are; the low entry threshold makes it easier for a wider range of people to participate. Ultimately, there needs to be a better review of the representativeness of the nominating committee because too often have we heard that there is "no consensus" on change. Insisting on an independent and principled review should also be part of the legislators' counter-proposal.

Even if a pan-democrat politician were to obtain the minimum 50 per cent support, there is a real risk that he or she would be crowded out by pro-establishment candidates given that only three can pass, thus the need for the maximum to be increased to five. Also, if the maximum is five, some nominating committee members will be more inclined psychologically to tick more than the minimum two boxes.

If the system fails to nominate a popular non-establishment politician, the world will recognise it for what it is. If, assuming the pan-democrats play ball now and end up gaining more than 60 per cent of the vote in the 2016 Legco election (as in the old days) and yet do not secure a place on the chief executive ballot, then all will see that this is a flawed system of universal suffrage. The 2017 chief executive will feel public pressure for change in both the composition of the nominating committee and the nomination procedures.

Political reform is not going to "happen" on its own. Making "it" happen must start with a feasible yet meaningful counter-proposal from the pan-democratic legislators and a sincere heart on all sides to realise universal suffrage in Hong Kong.

Professor Simon Young Ngai-man is associate dean (research) in the Faculty of Law at the University of Hong Kong