Progressive Lawyer Group X Keyboard Frontline: Public consultation on the method of selecting the chief executive opinion statement generator Author: Ricky Chan
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The second round of public consultation ends on March 7th, please join us now, send your opinion statement to views@2017.gov.hk, express our demand on real universal suffrage and refusing the "8.31 decision".
The Occupy Movement last year, which affected the whole of Hong Kong, clearly reflects Hong Kong people's' pursuance for genuine universal suffrage. A genuine universal suffrage is a real democratic system established by the Hong Kong people for the election of the Chief Executive and all members of the Legislative Council through general and equal elections. Without a real democratic system, there will be no genuine accountable government.
I was born and raised in Hong Kong and I have witnessed British colonial rule and change of sovereignty of Hong Kong in 1997. In the early days of the HKSAR establishment, I had high hopes for the prospect of Hong Kong, where the core values of the rule of law, human rights and freedom prevailed, where there was advantage reaching out to the world with backing of the Motherland, and where the Basic Law provided various safeguards under the “One Country, Two Systems” and “Hong Kong people ruling Hong Kong”. These factors have made greatly bolstered confidence of the people shortly after the 1997 handover. In particular, Article 45 of the Basic Law guaranteed that the Chief Executive of Hong Kong shall ultimately be selected by universal suffrage. This led me to believe that Hong Kong would one day be led by a broadly representative Hong Kong citizen and become a more just and prosperous society. However, I was very disappointed by the decision of the NPCSC on 31 August 2014.
The 8.31 Decision by the NPCSC is in clear violation of the Basic Law and Hong Kong people’s right to participate in public life, including the right to stand for election. As early as at the stage of composition and procedure of the nomination committee, the Central People’s Government seeks to influence the election by rising the nomination threshold substantially, even to a point whereby any election will be nothing but a sham. If the 2017 Chief Executive election adopts the framework under the 8.31 Decision, such election will NOT be universal suffrage as guaranteed under Article 45 of the Basic Law and the Hong Kong citizens would still not be able to freely elect their next leader.
I am a Hong Kong citizen. I yearn for the day when I can witness election of the Chief Executive in Hong Kong by universal suffrage. At first I was delighted when I heard the NPCSC determine that the Chief Executive is to be elected by way of universal suffrage in 2017. However, when I realized that the NPCSC attempted in their decision to impose an extra framework for screening purposes, I was heartbroken.
8.31 Decision made me feel Hong Kong people has been cheated by the PRC Government. The promise of universal suffrage enshrined in both the Joint Declaration and the Basic Law turns out to be a lie by the PRC government. It shows us the cruel fact that there will be extremely slim hope of true democracy in Hong Kong as long as the Chinese Communist Party is still in power.
I am an ordinary Hong Kong resident. When I knew that the Hong Kong government is going to give us an opportunity to elect the Chief Executive by universal suffrage in 2017, I was very excited. However, on 31 August, when I knew that the NPCSC would to give its set of unreasonable framework for the election method of the Chief Executive, I felt very furious! Because 831 essentially has given the universal suffrage of the Chief Executive even more stringent constraints than the 2012 Chief Executive election method! It can be seen that the NPCSC never thought of giving Hong Kong people the opportunity to truly elect the Chief Executive by universal suffrage, because the framework it has laid down is the “universal suffrage method” that it understands, not the universal suffrage method that general Hong Kong people would understand.
The 8.31 Decision of NPCSC is a "slap" on the face of the people of Hong Kong. It is a clear message from the hawkish Central Government under Xi that China is not going to allow HK to have any "genuine" democracy. It also marks the end of the school of thought that dialogue with Central Government can possibly achieve full democracy in Hong Kong.
Looking at the 831 decision, I feel cheated. The government has been giving us empty promises of universal suffrage. I feel that the government is simply making empty promises so that those who seek true democracy would take a step back and take the government's proposal as compromise. However, given that this has happened over and over again, I feel that unless the government provides true universal suffrage to Hong Kong people via a genuine timetable and solid proposal, it is pointless to discuss a "mid-way" proposal such as the 831 decision.
I am a permanent resident of Hong Kong writing to express my opinion on the Consultation Document “Methods for Selecting the Chief Executive by Universal Suffrage” issued by the Government in January 2015 on the method of selecting the Chief Executive in 2017. Whilst I agree that consitutional development in Hong Kong, including election of the Chief Executive, shall pursuant to Article 45 and Appendix I of the Basic Law be determined in light of the actual situation of Hong Kong and in accordance with the principle of gradual and orderly progress, with the ultimate aim to elect the Chief Executive by universal suffrage after nomination through demoractic procedures by a “broadly representative” Nomination Committee. However, I am very disappointed with the consultation which provides that the election method of Chief Executive in 2017 must be based on the 8.31 framework set down by the NPCSC. I am of the view that the 8.31 Decision is unconsitutional as it is not only ultra vires, the election method of Chief Executive under such decision also does not qualify as “universal suffrage” according to the Basic Law or international standards.
If those with power and vested interests of the society could, through their control of the Nomination Committee, preclude the possibility of those with different political views getting nominated for candidacy, which in turn restrict the choices of the wider public, is it still universal suffrage? The so-called explanations by the government and the pro-establishment camp are just deceptive language. I firmly disagree that the present political reform proposal meets the standard of universal suffrage, and I am even more firmly against “pocketing it first”.
Specifically, I believe that: • There are two aspects of the “8.31 Decision” by the NPCSC. The first aspect consists of the determination that the Chief Executive shall be elected in 2017 by way of universal suffrage. The second aspect is the extra so-called electoral framework which the NPCSC attempted to impose upon. • The first aspect mentioned above has the force of law because the NPCSC has, pursuant to Annex 1 to the Basic Law and the NPCSC’s interpretation of the Basic Law in 2004 (the “2004 Interpretation”), determined that there is a need for the method for selecting the Chief Executive in 2017 to be amended. • However, Annex 1 to the Basic Law and the 2004 Interpretation vested the NPCSC with the authority to make a determination in Step Two of the “Five-step Political Reform Process” only, and the second aspect mentioned above has exceeded the scope of such authority. Therefore, the extra framework imposed upon the electoral system under the “8.31 Decision” only carries political weight (since it was set out by the NPCSC) but not the force of law. • Furthermore, the said electoral framework has imposed unreasonable restrictions on the right for Hong Kong citizens to elect and be elected as Chief Executive and has deprived voters of a genuine choice of candidates from different ends of the political spectrum. Any electoral system conforming to such framework is not universal suffrage. • Given that the present electoral system is not universal suffrage and any system conforming to the non-binding framework under the “8.31 Decision” is not universal suffrage, the HKSAR government is obliged to implement the legally binding determination by the NPCSC that the Chief Executive is to be elected in 2017 by universal suffrage. As such, the HKSAR Government is bound to restart consultations for political reform and give the citizens an opportunity to consider reform proposals which constitute universal suffrage as a matter of law. • The “Blank Votes” electoral method as proposed by some members of the general public fails to give citizens a genuine choice of candidates and thus does not merit any discussion.
8.31 Decision is based on Annex I of the Basic Law and NPCSC Interpretation of Annex I on 6 April 2004. However power exercised by NPCSC in 8.31 Decision far exceeded the power vested in it by either Annex I or its own interpretation in 2004. 8.31 decision is therefore illegal and should be amended or revoked. Also a CE election which the voters can only vote for candidates vetted by the pro-establishment nomination committee is definitely not a genuine election as it is almost certain that candidates with opposite political views to the PRC will not pass the screening of the nomination committee.
The electoral framework given by the NPCSC “8.31 Decision” is only a guidance. It is not legally binding. NPCSC’s decision in fact needs to comply with the Basic Law. However, the Hong Kong government treats it as a decree. If the Hong Kong government insists on giving Hong Kong people the so-called “universal suffrage" under the 8.31 framework, the public is not able to elect a Chief Executive among candidates from different ends of the political spectrum.
The current proposal based on the 8.31 Decision of NPCSC is in essence an "one-party nomination" as termed by Lee Yee, namely only the candidate who is endorsed by the Chinese Communist Party is allowed to run the CE election. This is not a "genuine" universal suffrage in any sense. We don't need a fake voting right.
First of all, the 8.31 Decision adopts the “number of members, composition and formation method of the Election Committee for the 4th Chief Executive” as the basis for forming the nominating committee for electing the next chief executive and is not conforming to ‘democratic procedures’. Although the size of the election committee has gradually expanded from 400 members in 1996, to 800 in 2002 and 1,200 in 2012, it can hardly be described as democratic and representative enough. Looking at the composition of the 1,200 member election committee in 2012, it was narrowly based and drawn mostly from the voters in the functional constituencies but also from religious organizations and municipal and central government bodies with the leading members of this committee are criticized to be dominated by wealthy tycoons who are naturally pro-regime. Secondly, the 50% threshold for nomination and the limitation on number of candidates to 2-3 under the 8.31 Decision are unreasonable and against the principle of ‘gradual and orderly progress’, given the threshold of becoming a Chief Executive candidate in the 2012 election is just to get no less than one-eighth of the votes in the Nominating Committee. Also, the requirement that any candidate for the Chief Executive must “love the country and love Hong Kong” in essence excludes candidate from the pan-democratic camp when the Nominating Committee is going to be dominated by conservative pro-Beijing committee members. Such electoral system is primarily designed to ensure Beijing has ultimate control over the result of the election. Thirdly, the election model in 8.31 Decision deviates from international standard for democratic election and may be in violation of Hong Kong’s obligation to abide bythe international treaty applicable to Hong Kong which protects people’s right to participate in public life, including the right to stand for election. Under Article 21 of the Bill of Rights Ordinance (which is an adoption of Article 25(2)(b) of the ICCPR), citizens shall be able to vote and be elected by universal and equal suffrage without discrimination and unreasonable restrictions, guaranteeing the free expression of the will of the electorate. By restricting the ability and number of candidates to freely run for the post of chief executive, the election model under 8.31 Decision contravenes the Bill of Rights Ordinance and ICCPR.
Looking at two necessary components of universal suffrage - the right to vote and the opportunities to vote - the current proposals clearly do not amount to universal suffrage. The current proposals for CE election require a nomination committee of 1,200 members to vote for the CE on behalf of Hong Kong people, rather than affording the right to vote to every Hong Kong citizen. The nomination committee is composed of mostly pro-Beijing allies which is hardly representative of Hong Kong people. In addition, only "two or three" candidates who are pre-screened by the nomination committee can be allowed to stand for election. With such restrictions in place, one can hardly say that Hong Kong people are given the right to vote and the opportunities to vote.
HKSAR Government is not an accountable government. Knowing that the 8.31 framework by the NPCSC is inconsistent with the sprit of the Sino-British Joint Declaration, the HKSAR Governemnt holds fast to evil, with the intention to implement a constitutional development proposal in accordance with the 8.31 framework. Not being an accountable government, the HKSAR Government has ignored the views of the community and insisted on implementing constitutional reform subject to the confines of the 8.31 network, despite the fact that the 8.31 framework by NPCSC contradicts the protections provided by the International Covenant on Civil and Political Rights, Hong Kong Bill of Rights Ordinance and the Basic Law.
According to the original Appendix I of the Basic Law, Hong Kong people should have been able to have election of the Chief Executive and Legislative Council by universal suffrage in 2007 and 2008 respectively. The determinations by the NPCSC in 2004 and 2007 respectively amended Article 7 in Appendix 1 of the Basic Law on amendment of selection method for the Chief Exectuive, lengthening the “3-step process” to a “5-step process” and delaying the timetable of universal suffurage for election of Chief Exeuctive to 2017 following the “5-step process”. All members of LegCo may only be elected by universal suffrage after the Chief Executive is elected by universal suffrage. In its decision on 31 August 2014, the NPCSC deviated from the “second step” of the “5-step process” as defined in its Determination in 2004, i.e. to confirm whether there is a need for the method for selecting the Chief Executive to be amended based on the Chief Executive’s report, and made a deterimation as to how the method shall be amended, setting down the following guidelines and restrictions in advance and beyond what has been provided in the Chief Executive’s report: (a) The numbers, composition and formation of the Nomination Committee shall be idential to those of the Election Committee in 2012; (b) The Nomination Committee may endorse, through democratic procedures, two to three candidates to stand for election; (c) only candidates endorsed by more than half of all the members of the Nomination Committee may stand for election by universal suffrage; and (d) the Chief Executive elected shall be a person who loves the country and loves Hong Kong. The decision made by the NPCSC on “how to amend” is clearly beyond the parmeter as set down by the NPCSC in 2004 for the “Second Step”, i.e. to confirm whether there is a need for the election method of Chief Executive be amended based on the Chief Executive’s report. Such decision made by the NPCSC does not consititue an interpretation or amendment under the Baic Law as such decision was not made in accordance with the relevant procecures laid down under Article 158 or 159. The 8.31 Decision is therefore clearly ultra vires. Further, the guidelines and restrictions for the candidates for and the method of election of Chief Executive are clearly not in confirmity with the requirements under the Basic Law : • Such guidelines and restrictions are in conflict with the consitutional rights guaranteed under Article 25 of the International Covenants on Civil and Political Rights (ICCPR), applicable to Hong Kong through Section 21 of Bill of Rights Ordinance and Article 39 of Basic Law. Pursuant to Article 25 of ICCPR, every citizen shall be have the right to vote and to stand for election by universal and equal suffrage without discrimination and unreasonable restrictions, in order to ensure free expression of the will of the electorate. With the composition of the Nomination Committee remains unchanged and dominated by pro-Beijing members, the guidelines and restrictions under the 8.31 Decision (including the requirements that only candidates endorsed by more than 50% of all members of the Nomination Committee may stand for election, Nomination Committee may only nominate 2 to 3 candidates to stand for election, and Chief Executive must “love country and love Hong Kong”) in essence have the effect of excluding candidates with different political views from standing for election and depriving electorate of a real choice. Such restrictions are unresonable restrictions and are in clear violation of ICCPR. • In the 5 elections of the Chief Executive since the handover, candidates were only required to obtain one-eighth of the votes of all members of the Election Committee in order to be nominated to stand for election pursuant to Appendix I of the Basic Law. The fact that the 8.31 Decision raises the thereshold from one-eighth to half of the members of the Nomination Committee is clearly in violation of the principle of gradual and orderly progress as stipulated under the Basic Law. • Article 45 of the Basic Law provides that the method for election of Chief Executive shall be determined in light of the actual situation of Hong Kong. However, the framework under the 8.31 Decision is much more conservative and restrictive than any of the proposals put forward by different organisations and professional bodies during the Government’s first consultation for constitutional development, including those put forward by pro-Beijing political parties like Democratic Alliance for the Betterment and Progress of Hong Kong and The Hong Kong Federation of Trade Unions. The Umbrella Movement and the views put forward by different organisations and professional bodies clearly reflect that the 8.31 Decision is not acceptable to a large part of the community. The 8.31 Decision is clearly in deviation with the “actual situation of Hong Kong” and not in compliance with the requirement under the Basic Law.
The conclusion of the second round of consultations published by the government (namely that most Hong Kong people are supportive of the current 2017 CE selection proposal) are hardly representative of how Hong Kong people truly feel. There are many independent surveys conducted in Hong Kong recently which have shown the complete opposite of the conclusion drawn by the government in the second consultation. In view of the sheer number of people who have voiced out their dissatisfaction towards the 831 decision particularly during the Umbrella Movement, I request that the government to review its so-called public consultation and restart the 5-step procedures for the selection of 2017 CE. I strongly condemn the current regime that claims that it is democratic and transparent but at the same time disregard any disagreements expressed towards it.
The HKSAR Government must: 1) withdraw the “8.31 framework” by the NPCSC immediately and restart the 5-Step Process of electoral reform, and; 2) listen to the views of the community seriously and implement a democratic system that gives the Hong Kong people real choices. If the HKSAR government continues to turn a blind eye on its constitutional obligations, coerce and induce the Hong Kong people to accept its constitutional development proposal in conformity with the 8.31 framework, the Legislative Council will have no alternative but voting against the constitutional development package which proposes sham election. As famous US politician John Adams once said, “but a Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever.”
I call for the HK government to reflect on the occurrence of the ‘Umbrella Movement’ in fall 2014 and listen to the general will of the Hong Kong people to achieve the goal of genuine universal suffrage. Without genuine democratic election, it is hard to hold a government accountable for their acts that threatened the preservation of the assets that Hong Kong value most: a meritocratic civil service, independent judiciary and impartial police force enforcement. We accept no election model of Chief Executive under the 8.31 Decision which will only result in vetting of candidates and does not provide true choices for Hong Kong people to make. A new public consultation on selection method of Chief Executive has to be carried out as soon as possible and restart to 5-step procedures for 2017/2022 Chief Executive election. Thank you for your consideration.
To be frank, I don't trust any further consultation led by Mr Leung Chun-ying’s government. In sum, I just await our legislature to vote down the constitutional reform proposal to be put forward by this government and restart the consultation process.
Hong Kong people needs a “universal suffrage” without the 8.31 framework, so that Hong Kong residents can choose a Chief Executive among candidates from different ends of the political spectrum.
A counterfeit CE election will only intensify the deep hostility between the pro-establishment and Hong Kong citizens who have been longing for democracy. So if the PRC and HKSAR Government are serious about building a harmonious Hong Kong, they should amend 8.31 Decision and restart the whole political reform procedure to implement a genuine democratic CE election.
I truly hope that the Chief Executive could be elected by universal suffrage, but what I want is a genuine choice. If a system only offers me a so-called choice among “3 CY Leungs” or “3 Ann Chiangs”, then that system is not universal suffrage! I earnestly request that the HKSAR government restart the political reform consultation process and return us a system of universal suffrage in Hong Kong.
The attempt of CY Leung’s governing team to force through the proposal and have it “pocketed first” has triggered the unprecedented Umbrella Movement, causing the blocking of Hong Kong’s main roads for weeks and substantial economic losses. Yet the governing team has not learnt their lesson and continued to advocate for “pocketing first” the proposal, which is foolish in the extreme. The HKSAR Government should listen to the views of the citizens and restart its political reform consultation process free from any restrictive preconditions, otherwise social cleavage would only worsen and adversely affect the stable development of Hong Kong in the long term.
In light of the above, I do not accept any proposal on electoral reform put forward by the SAR Government which is based on the 8.31 Decision, and call for members of the LegCo to vote against such proposal. The SAR Government has a constitutional obligation to call for the NPCSC to re-consider and withdraw the 8.31 Decision, and to restart the consultation for electoral reform for Chief Executive and Legislative Council, so that Hong Kong people can exercise their rights to genuine universal suffrage as guaranteed under the Basic Law as soon as possible.