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Hong Kong’s Constitutional Moment of 2014

–Albert Hung-yee Chen, Chan Professor of Constitutional Law, Hong Kong University

Mr C.Y. Leung, the Chief Executive of the Hong Kong Special Administrative Region (HKSAR), announced on 17 October 2013 the establishment of a three-person “Task Force on Constitutional Development” which will prepare to launch a public consultation exercise on the electoral reforms for the Legislative Council and the Chief Executive (CE) to be elected in 2016 and 2017 respectively. As the HKSAR Government takes steps to implement the electoral reforms and as the “Occupy Central” movement further unfolds, it can be expected that the people of Hong Kong will live through their “constitutional moment” in 2014, in the course of which the shape of the future political system of the HKSAR will be decided.

The Hong Kong Basic Law, which not only regulates the relationship between the HKSAR and the Central Government in Beijing but also provides for the formation and operation of the HKSAR Government, stipulates that the ultimate aim in the evolution of Hong Kong’s political system is the election of the CE and of all members of the Legislative Council by universal suffrage. In December 2007, the National People’s Congress Standing Committee (NPCSC) set the timetable for the realization of this ultimate aim: the CE may be elected by universal suffrage in 2017, and thereafter the whole of the Legislative Council may also be so elected.

It is important to note, however, that the NPCSC’s 2007 decision does not automatically mean that election of the CE by universal suffrage will definitely materialize in 2017. According to Annex I to the Basic Law and the interpretation of this Annex by the NPCSC in 2004, any reform of the electoral method for the CE can only be initiated with the consent of the NPCSC, and the basic features of the reform – which have to be proposed by the HKSAR Government — must win the support of a two-thirds majority in the Legislative Council before the reform can go ahead. This means that whether universal suffrage for the election of the CE in 2017 will be realized or not depends ultimately on the collective will of the Central Government, the HKSAR Government and the people of Hong Kong as represented by its Legislative Council.

It is widely accepted that the people of Hong Kong desire to exercise the right to elect the CE directly by 2017. Given that the NPCSC has already decided that 2017 is the target date for the introduction of such universal suffrage, why is there still uncertainty as to whether this will materialize? The answer lies in the constitutional requirement of a two-thirds majority in the Legislative Council and the spectrum of existing political forces in Hong Kong, which includes “pro-establishment” parties and figures as well as what is commonly known as the camp of “pan-democrats” or “the opposition”. In 2005, the pan-democrats in the Legislative Council vetoed the political reform package proposed by Mr Donald Tsang on the ground that it was not democratic enough. In 2010, another package proposed by Mr Tsang would have been vetoed – again on the ground that it was not democratic enough – but for a last-minute amendment of the proposal relating to the creation of the “super District Council seats”. Similarly, the success or failure of the forthcoming electoral reform hinges on whether the Government can propose a model for the CE election which satisfies the democratic aspirations of the people of Hong Kong as represented by at least a two-thirds majority in the Legislative Council.

In 2013, senior officials from Beijing and the Hong Kong Government have repeatedly said that any model for the CE election must be based on and consistent with the provisions of the Basic Law and the relevant decisions of the NPCSC. For example, the mode of “citizens’ nomination” of candidates for the CE election proposed by some pan-democrats and the Alliance for True Democracy is considered to be inconsistent with the provision on nominations by the Nominating Committee (NC) in Article 45 of the Basic Law. Officials have also pointed out that nominations by the NC are “institutional nominations” (nominations by the NC as an institution), which are different in nature from the procedure of joint nominations by individuals used by the existing Election Committee for the election of the CE. It has also been stressed that the Central Government will not appoint as CE someone who is “confrontational” towards the Central Government and attempts to change the socialist political system in mainland China. These considerations are likely to shape the parameters for the design of the model for CE election to be proposed by the Government.

The realization of the election of the Chief Executive of the HKSAR by universal suffrage in 2017 will be no easy task. If politics is the art of the possible, the project of realizing such universal suffrage would be a supreme test of the skills, acumen, courage and wisdom of Hong Kong politicians in practising this art. I believe that it is possible to devise a model for the CE election which both recognizes the democratic aspirations of the people of Hong Kong and preserves the prerogatives of the Central Government in ensuring that the CE of the HKSAR will not be someone confrontational towards the Central Government. For example, it is possible to design a nominating system with a relatively low “nomination threshold” so that pan-democrats may put forward at least one candidate for the CE election (as they did in the 2007 and 2012 elections), and at the same time enabling the Central Government to set criteria and make determinations as to whether a candidate is acceptable and appointable from the Central Government’s perspective. It is to be hoped that the people of Hong Kong will find such a system acceptable as a sincere and reasonable attempt to achieve the delicate balance between “one country” and “two systems”. [reprinted from Hong Kong Law Journal]

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Published on February 5, 2014
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