Hong Kong Economic Journal
2nd May 2013
<Professor Johanne Chan: Setting “Patriotic to China and Hong Kong” as Requirement Breaches Basic Law>
Basic Law Promises People of HK Universal Suffrage With No Pre-Election
Although the consultation on political reform has not begun, Peking has already set out preconditions which state that Chief Executive* candidates have to be “patriotic to China and Hong Kong”. However, Professor Johannes Chan Man-mun, the Dean of the Faculty of Law for the University of Hong Kong, says this precondition already breaches the Basic Law.
Professor Chan thinks that besides the provisions of the International Human Rights Treaties, the Basic Law already promises to provide the people of Hong Kong the right to universal suffrage without any political pre-election.
Professor Chan said during an interview that there are four articles in the Basic Law that guaranteed the people of Hong Kong the right of a representative and fair election.
He explained that Article 25 of the Basic Law states that the people of Hong Kong “shall be equal before the law”, whilst Article 26 states that the permanent residents of Hong Kong “shall have the right to vote and the right to stand for election in accordance with law”. Therefore, the precondition of “being patriotic to China and Hong Kong” in order to run for office is most certainly a breach of the Basic Law. This is simply because the Basic Law states clearly that people of Hong Kong have the right to vote and stand for election, meaning everyone is equal at an election, adding the precondition amounts to removing some citizens’ right to stand for election.
Although all elections have some sort of criteria candidates have to fulfill, Chan said that these criteria must be objective and reasonable.
How do people define “being patriotic to China and Hong Kong”? Chan asked “Was Zhao Ziyang patriotic? Was Deng Xiaoping patriotic? Even Qiao Xiaoyang** may not dare to answer this question. So how could this be an objective criterion?”
Chan pointed out that a representative and fair election is an election that reflects the wishes of the citizens. In regards to recent comments publicly made by Maria Tam Wai-Chu, a Basic Law Committee member, saying Hong Kong SAR government signed the International Covenant on Civil and Political Rights (ICCPR) with reservation on Article 25 (B) meaning that the “representative and fair” (election) principle does not apply to Hong Kong, Chan thinks it does not make sense and conflicts with the Basic Law.
Chan said that Article 45 and 68 of the Basic Law clearly state that the ultimate goal for Hong Kong’s Chief Executive election and Legislative Council election is universal suffrage. “A universal suffrage that is subject to reservations is meaningless.”
Nomination Committee Does Not Match the Requirement of a Representative Election
Qiao Xiaoyang said that the constitution of the 2017 nomination committee can reference the current system. Chan pointed out that the number of people who are eligible to select the nomination committee currently stands at 230,000. Compared to the three million registered voters, this only represents tiny minority of people in Hong Kong. In other words, an extension of the Functional Constituency, which is far from the “broadly representative” criterion stated in the Basic Law.
Chan, however, is open as to whether to retain the four constituencies of the nomination committee. He said that even if Hong Kong was to retain a variety of constituencies in the nomination committee, the current system should not be adapted as it is essential to evaluate whether the distribution of the existing four constituencies is reasonable.
Chan thinks that the fourth constituency, which is the political constituency, forms an unreasonably high proportion of the nomination committee. He states that it does not make sense for the social welfare and education constituencies, whose members are elected by tens of thousands of people, to only account for 25% of the nomination committee, while the political constituency, which enjoys the same weighting, has a much smaller electoral base. In addition, many of the members of the political constituency belong to other other constituencies in their professional capacity, including accountancy and medicine. There may be a need to have a separate constituency for the political community.
Encourages to Abolish Corporate Vote
Chan thinks that if the 2017 nomination committee is to adapt the existing system, the corporate vote system must be abolished, because there is no objective standard in the existing corporate vote system: each company can be qualified for multiple categories within the four constituencies. There are no standard principles for the method of casting ballots, hence “for the nomination committee to be broadly representative, corporate votes have to be abolished.”
Qiao Xiaoyang said that the nomination committee must “nominate as an institution” in order to fulfill the democratic progress stated in the Basic Law. Chan thinks that this does not mean that candidates for Chief Executive should be pre-selected by the nomination committee, but should be vetted by the committee. For example, each candidate should obtain at least 100 nominations, and submit these to the nomination committee for review based on objective standards.
Chan said that having pre-selection by the nomination committee is possible, but the crucial element is the constitution of the nomination committee – if the committee is only elected by a minority of the population, it is essentially a filtering system.