HK's reform must follow constitutional framework
Updated: 2014-10-06 09:35
By Leung Mei - Fun(HK Edition)
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The National People's Congress Standing Committee's (NPCSC) recent decision on the framework for political reform in Hong Kong has stirred heated debate and now protests. Predictably, the decision was unacceptable to the "pan-democrats" in Hong Kong.
The central government and the NPCSC insist that the NPCSC reserves the right to be final arbiter on political reform in Hong Kong. Instead of vetoing a political reform proposal at the final stage, the NPCSC prefers to state its position from the outset to avoid the possibility of a constitutional crisis in Hong Kong.
The NPCSC also insists any political reform of the method for the election of the Chief Executive (CE) and Legislative Council (LegCo) members are subject to its final approval.
Politicians may disagree. However, a careful reading of the Basic Law's Annex I and Annex II clearly shows that the mechanism on offer goes beyond the provisions of Hong Kong common law.
For example, the phrases "approval" of NPCSC and "record" of NPCSC are characteristics of Chinese national law. These are not concepts found in common law but part of the legislation of the People's Republic of China. I will clarify the legal intent of provisions dealing with political reform in the Basic Law.
Article 45 of the Basic Law stated that, "The specific method for selecting the Chief Executive is prescribed in Annex I: 'Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region'."
While the selection method for the first term was defined in a NPCSC decision, Annex I of the Basic Law clearly stipulated the method of selection of the CE for second term onwards and allowing the possibility for amendment for the terms subsequent to the year 2007.
According to the Constitution and the Basic Law, the NPCSC alone has the power to make decisions on a report on political reform submitted by the CE of the Hong Kong SAR.
According to Article 43 of the Basic Law, the CE should be the head of Hong Kong, represent the SAR, and be accountable to the central government.
From the perspective of the nation, the CE is a State official. From the point of view of Hong Kong, the CE is the head of the SAR. According to the general operation of the State, a CE must submit working reports, on a regular basis, to the central government via the Hong Kong and Macao Affairs Office of the State Council. Proposals on methods for introducing political reform in Hong Kong fall under this category. Regarding the requirements mentioned, the CE must report to the State Council and obtain the consent of higher authorities.
The NPCSC decision on Aug 31 has stipulated a threshold for CE candidates by requiring that they achieve a majority vote from the Nominating Committee. This is composed of 1,200 members divided into four sectors. In this process, the CE has to play a dual role. The CE is responsible for reporting "the actual situation" in Hong Kong to the central government. The CE is also responsible for reporting the views of the central government to the people of Hong Kong.
The CE therefore plays a dual role in that he or she is considered an officer of the State as well as the head of Hong Kong. This is in order to channel the opinions of Hong Kong people to the central government.
Understandably, the NPCSC decision has come as a disappointment to many. The decision reflects an important mindset in the NPCSC when determining the "actual situation" of Hong Kong. This means: "gradual and orderly progress" is the guiding principle of political reform and the CE must never oppose Beijing. According to the constitutional framework, it is up to the NPCSC to decide what is best for Hong Kong.
Of course, the views of the opposition may also be part of the "actual situation" when the NPCSC assesses things in the SAR. But if the opposition does not know how to present its opinions under the constitutional framework, these views will not be acknowledged when the NPCSC examines the "actual situation" in Hong Kong. Therefore, I do not believe any action which challenges the validity of the NPCSC decision can succeed.
The LegCo does not have the jurisdiction to challenge the decisions of the NPCSC. Hong Kong people, as promised in the Basic Law, have the legitimate right to ask for "double universal suffrage". Hong Kong needs to strike a balance between the central government and being an SAR under the "One Country, Two Systems" policy in order to achieve these goals.
The disappointments and grievances of the "pan-democrats" were predictable. But when they calm down, they should return to the negotiation table to make the most of the present constitutional framework.
It is only by doing this that the election of the CE by universal suffrage can be achieved by Hong Kong in 2017.
The author is an associate law professor at the City University of Hong Kong.
(HK Edition 10/06/2014 page5)