Monday, February 24, 2014, 08:42
Why only the NC can nominate CE candidates
By Song Sio-Chong

Half of consultation period has lapsed since the government published its consultation document on Hong Kong’s political development in December. But the public seems to have become obsessed with a nominating organ other than the Nominating Committee (NC).

Why only the NC can nominate CE candidatesThere are six topics mentioned in regard to the method for selecting the Chief Executive (CE) in 2017. Views on these are now being sought by the government. Four topics concern the NC, and two others refer to voting arrangements for universal suffrage and the appointment of the CE.

Of the four issues regarding the NC, none has yet been agreed on by the opposition side. The opposition leaders appear to be quite reluctant to address any of them, namely: the size and composition of the NC; its electoral base; its method for formation; and the nomination procedure for the NC. Their new proposals emphasize the so-called civic nomination and nomination by a political party. This obviously runs outside the scope of consultation under the Basic Law and is not included in the said topics. But the opposition leaders claim their collective views fully comply with the Basic Law.

They may have another agenda, but I prefer to treat their attacks as just ignorance, which needs to be responded to. The present issue is whether the NC can be formed from Election Committee (EC), and whether any nomination method other than the NC is excluded. According to information exposed in the Hong Kong Chinese and English media, the arguments of opposition leaders are threefold: Firstly, the NPCSC’s decision in December 2007 mentioned the NC “may be formed with reference to the EC” and the word “may” is not mandatory. Secondly, the decision of the NPCSC has not been listed in Annex III of the Basic Law. By virtue of the Article 18 it shall not be considered as national law applicable in Hong Kong. And finally, the Article 45 shall not supersede Articles 25 and 26; the interpretation of Article 45 shall make reference to them. It appears they are arguing with little knowledge; and a little knowledge is a dangerous thing.

Let me explain. Firstly, I agree with the point that “may” is different from “shall” and “must”. The three words have different meanings. The word “may” in the NPCSC’s decision means to be followed in ordinary circumstances, except when not applicable. But it should not be interpreted as “may not”. If there is no other legal base, then “may” will become “may only”. As the decision shall be carried out by the central government in accordance with the constitutional framework, it may compel the central government to issue a directive to the CE. As a result, it is quite difficult, if not impossible, to be implemented.

Secondly, the amendment bill of Annex I of the Basic Law shall be reported to the NPCSC for approval. Even the opposition leaders recognize civic nomination and the nomination by political parties can neither take the place of the NC nor run parallel to it in nominating the CE. In my opinion, it is better to list the NPCSC’s decision in Annex III of the Basic Law. Anyway, it may be implemented indirectly, with or without, being listed.

Thirdly, all provisions of the Basic Law are of the same standing. How different provisions will interpret each other will depend on how closely they are related. I believe Article 25 of the Basic Law refers to the application of the laws without discrimination. It is unlikely formation of the NC will contradict Article 25. The provision of Article 26 supports the point of expressio unius as a Chinese citizen without acquiring permanent resident status will not enjoy the right to vote or be able to stand for election because he/she is not stipulated to be permanent residents. The same logic applies to civic nomination and nomination by political parties.

I would also like to add two points on interpretation and amendment of the Basic Law. In Article 45 of the Basic Law, the NC should be “broadly representative”. It is natural for the NPCSC to refer formation of the NC to the EC — as both have the same requirements. If we study the drafting of the Basic Law, we may find the same proportion of the NC had been clearly indicated as Alternative 5 in the Draft Basic Law (for solicitation of opinion) in 1988. Such a composition may be considered as the legislative intent in the interpretation of the NC formation with respect to Article 45 of the Basic Law by the NPCSC. This will support the NPCSC’s decision.

And finally, it should be remembered that any deviation from the NC as given in Article 45 will imply a need to amend the Basic Law. The amendment of Article 45 is much more difficult than Annex I of the Basic Law. I wonder what the opposition leaders really want from universal suffrage in 2017 in Hong Kong, or whether they are only thinking of themselves.

The author is a HK veteran commentator and professor at the Research Center of Hong Kong and Macao Basic Law, Shenzhen University.