Pan-democrats refuse to give up on public nomination

Proposal is in line with Basic Law, says former Bar head; current chief says mooted 50 per cent nomination threshold could be unconstitutional

PUBLISHED : Wednesday, 30 April, 2014, 4:18am
UPDATED : Wednesday, 20 June, 2018, 5:58pm

The Bar Association's rejection of public nomination for the 2017 chief executive election has failed to sway pan-democrats - including a former association chairwoman - on the issue of whether voters and parties should have the right to put up candidates.

And the current head of the Bar said any requirement that a candidate should have 50 per cent of the committee's support could "run the risk of being unconstitutional".

Civic Party chairwoman Audrey Eu Yuet-mee said that public nomination would be in line with the Basic Law, despite the bar's contention - in its submission on electoral reform - that it would be unconstitutional.

The association argued the mini-constitution did not envisage nomination other than by the nominating committee. But Eu, Bar chairwoman between 1997 and 1999, said the official body had to be subject to "reasonable restrictions".

"Any legal body, including the nominating committee, cannot have absolute power; they must be subject to reasonable restrictions," she said.

"Public nomination as one of the tracks for nomination is constitutional, legal and reasonable."

Democratic Party chairwoman Emily Lau Wai-hing said that her party had decided to stand by the Alliance for True Democracy's reform proposal, which would allow political parties to put forward candidates.

Referring to local and overseas academics who suggested last month that public nomination would comply with the Basic Law, Lau said: "We respect the Bar's views, but we also respect the views of other legal experts, including overseas academics."

Ronny Tong Ka-wah, Eu's successor as association chair and fellow Civic Party member, said he agreed with the Bar's views although they had come "too late" to end the debate on public nomination.

Eu's remarks had not been discussed among party members, he added.

Elaborating on the submission, Bar chairman Paul Shieh Wing-tai said any requirement that a candidate should have 50 per cent of the committee's support could "run the risk of being unconstitutional".

The nominating process should not be an election, he said. "By requiring a majority [the committee] would have de facto conducted an election," Shieh said, and that could jeopardise the political plurality of the election. "Legally it could trigger a constitutional controversy."

Following the four-sector structure of the current 1,193-strong election committee would also put the nominating committee at risk of a court challenge.

Shieh said the overriding principle was to retain the nominating committee's final say in endorsing the final candidates.

Acting chief executive Carrie Lam Cheng Yuet-ngor meanwhile singled out two points on which the government was in line with the Bar.

"The Bar has clearly pointed out that … nominations by voters or political parties would not comply with the Basic Law," Lam said. "The Bar has also ruled out a nominating committee formed by all voters."

But Lam ignored the Bar's views on the perils of putting a cap on the number of candidates and patriotism as a prerequisite for candidacy.