Is the blank-vote option for 2017 chief executive election a realistic idea?

An olive branch, in the form of a blank vote, has been offered to solve the 2017 election impasse, but is the 'none of the above' option realistic?

PUBLISHED : Tuesday, 13 January, 2015, 2:15am
UPDATED : Tuesday, 13 January, 2015, 6:00pm

At first, the idea of a blank vote had seemed too alien or too desperate to be taken seriously. Slowly, however, the lobby is growing and now no one is ruling it out just yet.

After the sound and fury of Occupy last year, Hongkongers are coming around to realising that Beijing may not relent on the rules for the 2017 election of the chief executive and now they ask pessimistically: can we simply turn down all the choices before us?

The debate over a blank ballot or the "none-of-the-above" voting option has gained momentum as the government last week embarked on the second round of political reform consultation, unequivocally backing Beijing's position that a nominating committee will select two or three candidates to stand before the electorate.

The 1,200-strong body, modelled on the election committee in place since the handover, is widely predicted, fairly or unfairly, to be a clubhouse for pro- Beijing figures. In effect, pan-democrats - the majority winners in most Legislative Council polls since the handover - will unlikely be able to run for the top job, though a nascent view is that they could well be selected.

The 27 pan-democrats in the 70-member Legco have vowed to veto the political reform bill when it is tabled after the consultation process. This would then trigger the real possibility of the chief executive being chosen in the same way as 2012, by the 1,200-member committee.

Can enough of them - four to be exact - be persuaded to abandon this pledge? If they do and go along with the government, the reform bill will get the two-thirds majority and be approved. That is the outcome Chief Secretary Carrie Lam Cheng Yuet-ngor and her team are trying valiantly to ensure.

It is against this backdrop of impasse that Professor Albert Chen Hung-yee, an influential legal expert trusted by Beijing, offered an olive branch by proposing the concept of a "none of the above" (Nota) option on the 2017 ballot paper.

According to his proposal, if more than half of all the votes received a Nota chop, none of the candidates could win. But instead of staging an immediate re-election, Chen suggested that the nominating committee pick a provisional chief executive, or even a full-term one.

The new ballot option, Chen said, could help strengthen Hongkongers' confidence in the reform proposals first spelled out by the National People's Congress' Standing Committee last August.

"Many residents worry that, under the framework of [Beijing's] August 31 decision, all the candidates nominated by the nominating committee will only be those favoured by Beijing, rather than people the residents willingly support, and thus voters will not have 'real choices'," he wrote in his submission to the government.

Chen - one of six Hongkongers on the Basic Law Committee in the Standing Committee - said the proposal is not unique. "In accordance with some theories in overseas countries, it forms part of the voters' right to vote democratically that they be allowed to 'say no' to an election by casting a ballot of Nota," he said.

The choice, he argued, would enable the voters to signal their rejection of the candidates, the nomination process or even the election as a whole.

Johnny Mok Shiu-luen, another Hong Kong member on the Basic Law committee, said Chen's plan would "help to narrow the gap between the central government and the two-thirds majority of Legco members".

"It remains to be seen whether wide acceptance of this particular idea will come from those quarters," said Mok.

The notion of Nota has long moved from concept to concrete electoral options overseas. Just last year, the Indian Supreme Court decided in People's Union for Civil Liberties v Union of India that the right to vote includes the right not to vote.

"This latter right is not merely about staying home on polling day," said Shubhankar Dam, an assistant professor at the Singapore Management University's school of law. "Rather, voters have a right to formally record their rejection of all candidates on the ballot paper itself. The right to vote, in other words, includes a right to vote for nobody."

Dam was among the first to suggest Hong Kong adopt Nota to break the political gridlock. He said: "This option would acknowledge Hong Kong's simultaneous connection to and distinctiveness from China."

Beijing's semi-official heavyweights meanwhile appear divided. Chen Zuoer , former deputy director of the Hong Kong and Macau Affairs Office under the State Council, said Chen's idea "can be discussed" in the ongoing consultation.

But another Basic Law Committee member, Rao Geping, was unimpressed. "Blank votes cannot express voters' views on the candidates. I don't think it is a valid way of voting," he said.

The pro-establishment camp has adopted a largely wait-and-see approach given Chen's special role in the mainland's legal community. Rita Fan Hsu Lai-tai, the city's sole representative on the Standing Committee, said while Nota did not contravene the NPCSC's decision, "other factors need to be taken into account", such as people's familiarity and whether the mechanism sets the chief executive election apart from other local polls, like that of the Legislative Council.

The Democratic Alliance for the Betterment and Progress of Hong Kong, the city's biggest pro-establishment camp, stopped short of denouncing Chen's proposal. "There are technical difficulties," said Starry Lee Wai-king, a DAB lawmaker and Executive Council member, citing the limited time for public discussion now.

Chinese-language media described Chen's idea as "gate-keeping by blank votes". But Chen countered that the Nota option could more accurately reflect the will of the voters. He said his idea originated, among others, from fellow HKU legal scholar, Professor Simon Young Ngai-man, who described it as an "ultimate safeguard" for Hongkongers.

"Without it, universal suffrage under the Basic Law is not worth having because the central government will be able to control both the nomination of candidates and the choice of [the chief executive]," Young wrote in the Hong Kong Law Journal last year.

He continued: "There are different ways in which this power can be implemented, including the right to cast blank votes, vote count thresholds and minimum voter turnout rates."

Ivan Choy Chi-keung, a political scientist at Chinese University, described Chen's proposal as "respectable".

"Compared with the government's emphasis in the consultation - which would only result in negligible differences on democratic development - Chen's proposal could make a substantial improvement if the threshold of Nota votes is reasonably set," he said.

However, Chen would need to consider under his proposal how long a provisional chief executive should be in his job. "The length of the tenure of a provisional CE ... could be a matter of criticism," Choy said.

So far, the pan-democrats are in no mood to grasp the Nota olive branch. Instead, they have called for the whole reform process to be scrapped and for fresh talks to resume.

Dr Law Chi-kwong, a core member of the Democratic Party and a scholar at the University of Hong Kong's department of social work and social administration, agreed that a gate-keeping tool like blank votes could better protect Hongkongers.

But Chen's threshold is too high, said Law. Under Chen's plan, only if the share of Nota votes crosses 50 per cent would the election be declared void. In the worst-case scenario, if Nota votes account for 49 per cent in 2017, a candidate with the biggest share of the remaining votes could be considered duly elected even though he might have garnered less than one third of that remaining vote share.

Unlike his party members with seats in Legco, Law saw no reason to veto the reform despite its less than ideal conditions.

"If 2017 is yet another small-circle election, I can't accept it," said Law, a moderate Democrat who led certain government initiatives. "I don't understand one thing: how is our insistence on the same thing today going to result in real universal suffrage tomorrow?"

Similarly, for Hongkongers like Law, Nota is a palliative, not a cure. As voters exercise their right to reject candidates, they may inevitably be shifting the power to elect back to the selected few within the nominating committee. If the exercise of choice is to further democracy, Nota is not the answer.