Squaring the “Universal Suffrage” Circle in Hong Kong’s Transition to Democracy Under the Guidance of China

—P.Y. Lo, Barrister-at-law, Gilt Chambers, Hong Kong; Part-time tutor, Faculty of Law, The University of Hong Kong.

Hong Kong is a transitional democracy in the sense that its constitutional instrument, the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (the Basic Law) [1], provides for the fast track amendment of its provisions for the selection of Hong Kong’s Chief Executive (i.e. Hong Kong’s head of region and head of government) and its provisions for the formation of Hong Kong’s Legislative Council (i.e. Hong Kong’s legislature) every 5 years in the case of the Chief Executive’s method of selection and every 4 years in the case of the Legislative Council’s method of formation, with the ultimate goal to be the selection of the Chief Executive and the formation of the Legislative Council by universal suffrage.

At the time of writing of this blog contribution, the Hong Kong Government is consulting on next transition, which can include amending the method of selection of the Chief Executive to become one for the return of a successful candidate by universal suffrage for appointment by the Central People’s Government of the People’s Republic of China[2]. And as Albert Chen has pointed out in a recent post in this blog, the re-shaping of the political system as a result of either the consultation or the civic movements generated in relation to the next transition will lead to the Hong Kong people experiencing a “constitutional moment” in 2014, or as this author believes, in 2015.[3]

Hong Kong’s electoral systems for the Chief Executive and the Legislative Council were considered in 2012 by Daniel Lansberg-Rodriguez and Tom Ginsburg as the second of five electoral systems that make even less sense than the United States electoral college for electing the president.[4] The top spot was awarded to the German parliamentary electoral system due to the problem of “overhang”. Since Germany appeared to have survived the 2013 general election with a functioning parliamentary government, it would seem that Hong Kong’s electoral systems would have a claim for the top by succession.

This author, on the other hand, believes that the next phase of Hong Kong’s evolution towards universal suffrage, if taken along the lines mandated by the Central Authorities of the People’s Republic of China, will create an electoral system for returning a Chief Executive for appointment by Beijing that can legitimately take the first of the list. This lies in the design in the relevant provisions of the Basic Law and the trimmings later given to them by the Central Authorities of this yet to be finalized system for achieving election of the Chief Executive by universal suffrage, which Albert Chen has briefly described in his post.

The most relevant provision of the Basic Law in connection with the development of the electoral system for returning a Chief Executive is Article 45(2), which states:

“The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.”

It can be readily seen that this provision, when specifying the “ultimate aim”, appears to split the electoral process into the nomination phase and the voting phase and commits to different institutions the charge of each of the phases and purports to call the composite “universal suffrage”. Thus a “broadly representative nominating committee” is supposed to nominate “in accordance with democratic procedures” the candidates in the Chief Executive election and Hong Kong permanent residents are supposed to cast their votes to elect as Chief Executive one of the candidates so nominated.

At first blush, this nomination phase might be similar to the French presidential electoral system (No 5 in the Lansberg-Rodriguez and Ginsburg list) since, in order to become a presidential candidate in France, one has to obtain endorsements from a specified number of elected officials with rules to ensure a broad geographical spread of support. But when the Hong Kong Government’s consultation document is examined, it appears that the Hong Kong Government has, following a Decision made by the Standing Committee of National People’s Congress of the People’s Republic of China in 2007 and public statements and discussions of officers from the Standing Committee’s Secretariat on the 2007 Decision and other matters related to Article 45, adopted the following positions[5]:

(a) The nomination phase is to be performed exclusively by the nominating committee. Any nomination procedure that bypasses the nominating committee or undermines the substantive power of the nominating committee to nominate candidates can be considered to be inconsistent with Article 45.

(b) The nominating committee may be formed “with reference to” the composition of the present election committee for the Chief Executive, which is composed of equal number of members from the following sectors: “Industrial, commerce and financial sectors”, “the professions”, “labour, social services, religious and other sectors” and “members of the Legislative Council, members of District Councils, deputies to the National People’s Congress and representatives of Hong Kong members to the National Committee of the Chinese People’s Political Consultative Conference.”[6]

(c) The nominating committee nominates candidates “organizationally” or “collectively”, which seems to envisages that the nominating committee would meet, debate and decide as a body which persons it would nominate as candidates. The way in which the body makes the decision of nomination has to be “in accordance with democratic procedures” and there has been a suggestion that “in accordance with democratic procedures” connotes decision-making by simple majority.

(d) The electoral system should specify a numerical limit on the candidates that the nominating committee can nominate. It has been claimed that specifying this “certain number of candidates” (such as from two to four) is not an unreasonable restriction.

Many civic movements in Hong Kong would have none of those. One such movement, which have as members a number of leading lawyers, published a document in January 2014 to point out that the Hong Kong Government’s consultation document “fails to provide a comprehensive explanation of the legal basis for universal suffrage” and highlight the following legal principles that underpin the definition of universal suffrage (all of which have been omitted in the Hong Kong Government’s consultation document)[7]:

(i) All Hong Kong residents shall be equal before the law (Article 25 of the Basic Law).

(ii) Every permanent resident shall have the right to vote and the right to stand for election in accordance with law (Article 26 of the Basic Law).

(iii) Every permanent resident shall have the right without unreasonable restrictions to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage guaranteeing the free expression of the will of electors (Article 25(b) of the International Covenant on Civil and Political Rights applied to Hong Kong by Article 39 of the Basic Law).

This document goes on to criticize that modeling the nominating committee according to the composition framework of the present Chief Executive election committee would not produce a broadly representative nominating committee since this framework enables certain sections of the population to exercise a disproportionate influence on the outcome of the voting and does not represent some sections of the population; that the Basic Law does not mention “organizational” or “collective” nomination; that there is no need to consider placing any cap on the number of candidates the nominating committee should nominate; and that a nomination system that excludes potential candidates with strong popular support “will make the CE election a farce.”[8]

Rimsky Yuen SC, the Secretary for Justice and one of the three officers of the Hong Kong Government tasked with leading the consultative exercise, recently indicated that in order to safeguard Hong Kong’s international standing, Hong Kong people should accept an “imperfect package” of electoral reforms so that election of Chief Executive by universal suffrage could be achieved in 2017.[9]

The news report does not explain what features in the Chief Executive electoral method Yuen would regard as “imperfect”. But one would assume that features that are unreasonable restrictions of the political rights of Hong Kong permanent residents would be inconsistent with the Basic Law and struck down as such by the Hong Kong courts exercising the power of judicial review.[10] Hence it can be suggested that Yuen could have meant reasonable and non-discriminatory restrictions to the right to vote and the right to be elected. Or, as a recent article of the Secretary for Justice suggests, the clear language and specific provisions of Article 45 of the Basic Law on the substantive nomination power of the nominating committee take precedent over the general provisions of Article 25 and Article 26 of the Basic Law guaranteeing the political rights of Hong Kong permanent residents.[11] This would mean that the preferred options of nomination of Chief Executive election candidates by some quarters would not pass Article 45 muster and these people could have found the end result “imperfect” or “not true universal suffrage”.

If, as the Hong Kong Government seems to suggest, the “universal suffrage” envisaged in Article 45 of the Basic Law is not necessarily the composite of the nomination phase and voting phase that is argued above and may only be concerned with the voting phase[12], then can one still attempt to interpret Article 45 to “perfect” the imperfect?

The Basic Law is to be interpreted according to the context and purpose of the provision in question. This author suggests that there may be some objectives and approaches that are hopefully consistent with this approach of purposive interpretation of the Basic Law. The first is that the nomination by the nominating committee shall not hijack or determine the voting; it is simply not the job of the nomination committee to elect in effect and substance the Chief Executive. The second, partly as a consequence of the first, demands that the nominating committee’s democratic procedures should ensure the production of a plurality of candidates for the voters. Plurality here connotes not merely numerical plurality but also political plurality. This approach, it is argued, would negative the simple majority way of “organizational” or “collective” determination. The third, as a consequence of the first and the second, indicates that the composition of the nominating committee should be such as to promote a nomination process favouring plurality.

Accordingly, this author ends this blog entry with a call to the constitutional scholars and political scientists of the world to study Hong Kong’s curious provisions for transition to democracy and to make suggestions to the Hong Kong and Chinese authorities, academics and lawyers of ways or systems of evaluation and decision-making by committee that will best produce a plurality of nominated candidates reflecting the apparent preferences or variety of preferences of the voting public. Otherwise, the Hong Kong people will end up like the restaurant customer in the joke about the Soviet constitution[13], if not worse: The menu promises “chicken”, he orders “chicken”, he will be served “chicken with bird flu”.

Suggested Citation: P.Y Lo, Squaring the “Universal Suffrage” Circle in Hong Kong’s Transition to Democracy under the Guidance of China, Int’l J. Const. L. Blog, Feb. 8, 2014, available at:  http://www.iconnectblog.com/2014/02/squaring-the-universal-suffrage-circle-in-hong-kongs-transition-to-democracy-under-the-guidance-of-china