Friday, October 24, 2014

Advice on Plan B for the Protesters in Hong Kong

Plan A is to have the Chief Executive submit a Supplementary Report to the Standing Committee of the National People's Congress (NPCSC) in order to put 'Hong Kong political reform' back on the agenda of the next NPCSC meeting, at which the NPCSC will hopefully decide that, since the actual situation in Hong Kong has changed, its 31 August 2014 decision is now either replaced or supplemented by a further decision that permits public nomination of Chief Executive candidates.  If Plan A has no hope of materialising, what is Plan B?  Is there is a Plan B?  Protesters may wish to consider the following eight points in forming or shaping a Plan B.

1.  Don't give up the people's power to reject the slate of nominated candidates.  This is the ultimate safeguard by Hong Kong against a system that confers de facto nomination power on the Central People's Government.  Neither the Basic Law nor the August 31st decision precludes this power.  Without it, universal suffrage under the Basic Law is not worth having because the central government will be able to control both the nomination of candidates and the choice of Chief Executive.  Such a system is nothing more than a universal suffrage charade which Hong Kong voters will boycott thereby leaving any elected candidate with a low margin of public support.  If however the pubic has the power to reject the slate of candidates thereby causing the process to start again, Beijing will need to yield to this power in its nomination deliberations.  Patriotism will not be a decisive criterion; integrity, leadership ability and public support will become paramount considerations.  There are different ways in which this power can be implemented, including the right to cast blank votes, vote count thresholds, and minimum voter turnout rates.

2.  Insist on an open and low threshold entry nomination process.   The August 31st decision did not address the process by which qualified persons can enter the nomination race.  Protesters should insist upon a low threshold process to allow potential candidates from across the political spectrum to participate at this stage.  Such potential candidates should be given a period of time to air their election platforms and debate each other in public.  This will provide an opportunity for the public, Nominating Committee members and the central government to form views on which two to three potential candidates should be supported.  As to implementation, one idea is to use the existing nomination process, i.e. paper nominations from at least one-eighth of the membership of the committee.  We have seen in 2007 and 2012, that this low threshold can make for some diversity in potential candidates, but only a small number.  The current rules allow a potential candidate to obtain more than the one-eighth minimum thereby making it more difficult for others to be nominated.  This should not be allowed in the new system.   Another idea is to have public endorsements in addition to or as an alternative to committee member endorsements.  For example, obtaining endorsements from say 10,000 registered voters could serve as a threshold for admission into the nomination race.  We might even consider making public endorsement a requirement for all potential candidates.

3.  Insist on a better allocation of seats to the Nominating Committee subsectors.  The August 31st decision requires the Nominating Committee to have an equal number of seats in the four sectors (specified in Annex I of the Basic Law), but did not address the allocation of seats to subsectors within each sector.  This has always been a matter for local legislation.  There are numerous anomalies with the current allocation, the most often mentioned one being the 60 seats given to the Agriculture and Fisheries subsector, which in 2013 was concerned with only 1 percent of the land in the New Territories and approximately 8800 local fishermen.  With a strategic redesign of and reallocation of seats to the subsectors, the influence of the central government over nominations can be diluted.  

4.  Widen the electorate base of the Nominating Committee as much as possible.  By widening the electorate base with a stronger public element, there is a further opportunity to diversify the composition of the Nominating Committee and thereby dilute the influence of the central government.  Many ideas can be discussed and tried, but the issues are complex and technical.  Much reference has been made to abolishing corporate voting, but the immediate question that follows is 'replace them with what?'  If Governor Chris Patten's approach was to be adopted, when he abolished corporate voting for the 1995 Legislative Council (LegCo) election, one corporate vote will be replaced with six votes by members of the corporate's board of directors.  Such a change makes little difference since the composition will still reflect a pro-business and pro-corporate elite bias.  Only by widening each subsector to all classes of workers engaged in the subsector will the dilution effect be realised.  As for the 'professions' sector, it is not clear why only 10 broad professions are recognised.  A serious inquiry can be conducted into which 'professions' have been left out.  More subsectors could be recognised under the third sector which is labelled broadly in Annex I: "Labour, social services, religious and other sector".  There is no good reason why this sector should be limited to an electorate base of only 17,572 individuals and bodies.  This would be a good sector for having members drawn from and elected by the general electorate.  In the fourth sectors, the number of seats allocated to the Heung Yee Kuk and the Chinese People's Political Consultative Conference were reduced in October 2012 (to make way for 10 more LegCo members) and could be reduced further to make way for more directly elected District Council members. 

5.  Obtain assurances on future change to the 31 August 2014 conditions.  While the Chief Secretary has said that the 2017 system is not final, it is better to get it directly from the NPCSC, specifically that the conditions imposed in the August 31st decision can all be changed for future elections beyond 2017.  Insist upon an official statement from the NPCSC or its Chairman to this effect.  This will reassure people that the restrictions on nomination contained in the August 31st decision are not permanent, whether or not LegCo members ultimately accept a reform proposal.  The 2017 election will be treated as a pilot universal suffrage election and the 2017 Chief Executive will be duty-bound to submit a report to the NPCSC on the need to reform the system further.

6.  Obtain assurances on functional constituencies.  People are concerned that the principles of "balanced participation" and "broadly representative" will mean that the functional constituencies in their current form will be regarded as being consistent with the method of LegCo election by universal suffrage, promised for 2020.  Protesters should insist upon having an official statement from the NPCSC or its Chairman to the effect that the existing arrangement of functional constituencies is not consistent with universal suffrage of LegCo.  Furthermore the statement should also say that the split voting rule in Annex II(II) can also be changed for 2020.  This will help restore some degree of public confidence in future of electoral reform in Hong Kong.

7.  Obtain assurances on Article 23.  People are worried that the 2017 Chief Executive elected by universal suffrage will be ordered by the central government to implement national security laws as required by Article 23.  However Article 23 states that it is the Hong Kong Special Administrative Region that will enact such laws "on its own", implying that the timing of the implementation is wholly to be decided by Hong Kong.  To help rebuild trust with the people, the NPCSC or its Chairman should make a statement affirming that the timing of the implementation of Article 23 is to decided solely by Hong Kong.  In this way the 2017 Chief Executive can decide to tackle the Article 23 issue only when there is support for doing so amongst legislators and members of the public.

8.  Insist on a better and more transparent process in the next stage of political reform consultation.  It is of utmost importance that the protesters insist upon a better process in the next stage of political reform consultation.  It has become clear that the process employed thus far has not worked.  Leaving the process of consultation entirely in the hands of government (namely a three-person task force) has bred mistrust in the manner of consultation (who was consulted), the analysis of consultation results (how were findings made), and reporting of consultation results to both the public and central government (were findings fairly reported).  Going forwards, the government should establish an independent consultative committee, like the one used when the Basic Law was being drafted, to collect views, study issues and report on the views collected and issues studied.  The more the government can distance itself from the process of public consultation, the more credible the consultation results will be and the more likely people will accept the consultation report.  Written by Simon N.M. Young.

1 comment:

  1. Translated by Ms Jackie Lai (HKU law student)

    給香港示威者:方案B的建議 (撮要)

    方案A是指由行政長官向人大常委會提交補充報告,以使香港政制議題納入人大常委會下次會議的議程,並冀望常委會能基於香港實際情況的改變,有一個新的決定增補或代替8月31日原有的”確定”,容許公眾提名行政長官候選人。但如果方案A不可行,方案B又是否存在呢? 示威者在考慮方案B時可能需要思考以下8點。

    1. 不要放棄人民否決候選人的權力 – 這是香港人對抗一個由中央間接行使提名權力的制度的最後防線。基本法和8月31日的確定都沒有阻止這項權利。這體制中,選民可杯葛選舉,令最高選數的候選人只有很低百分比的公眾支持。若選民能通過投票否決被提名的候選人,令整個程序必須重新啟動,中央在使用其間接提名權時便需要考慮這個可能性。

    2. 堅持公開和低門檻的提名過程 –8月31日的決定並沒提及合資格人士可以參與提名競賽的過程。示威者應該堅持有一個低門檻的過程,讓來自政治光譜各端的潛在候選人在這個階段參與。

    3. 堅持選舉委員會各界別議席獲更好分配 - 在8月31日決定,要求提名委員會的四個界別擁有同等數量的席位(按基本法附件一規定),但沒有提及每個界別內分組界別的席位分配問題。這一直在本地立法的權限內。當前的分配有許多異常的情況,最經常提到的一個是漁農界的界別分組 - 在2013年它們只佔有1%的新界土地和約8800當地漁民,卻擁有60個席位。按戰略重新設計各界別分組的席位,並重新分配,有助減低中央政府在提名過程的影響力。

    4. 盡量擴大選舉委員會的選民基礎 - 通過加入更強的公眾元素擴闊選民基礎,有機會進一步令提名委員會的組成趨向多元化,從而削弱了中央政府的影響力。關於取締公司票,若使用1995年彭定康時採用以6個公司董事取代第1張公司票的方式,則選票組成依然會反映出親商和親企業的精英偏見。稀釋效應只有通過將各階層的勞工納入各界別分組來實現。(更多有關專業界別的具體建議見原文)

    5. 取得在未來改變831決定條件的承諾 – 縱使政務司司長曾表示,2017年的選舉制度並不是最終的,最好是直接從人大得到這承諾,特別是提及8月31日決定的條件可以在未來的選舉改變。

    6. 取得功能組別的承諾 - 示威者應該堅持取得人大常委會或其主席的正式聲明,確認現時功能界別的安排不符合普選立法會的要求。此外,聲明還應該說明附件二(II)中的分組投票規定在2020年也可以改變。

    7. 取得關於23條的承諾 – 基本法第23條規定,香港特區政府將“自行”制定相關法律,這意味著實施的時間是完全由香港決定。為了幫助重建與人民的信任,人大常委會或其主席應發表聲明確認了第23條的實施時間純粹由香港決定。這樣2017年選出的行政長官可以在得到立法會和市民的支持下才解決第23條立法的問題。

    8. 堅持下輪諮詢有更理想和透明的程序 - 將諮詢過程完全交給政府(即三人工作小組)使諮詢的過程充滿不信任,包括協商方式(誰被諮詢),諮詢結果的分析(如何達致調查結果),和向公眾和中央政府報告諮詢結果(是否恰當匯報調查結果)。政府應成立一個獨立的諮詢委員會,收集意見,研究問題和報告研究收集到的意見。政府越是跟公眾諮詢的過程中保持距離,諮詢結果越是可靠和容易讓人接受。

    (本文為英文版原文撮要,原文請見: http://researchblog.law.hku.hk/2014/10/advice-on-plan-b-for-protesters-in-hong.html )

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