Thursday, December 25, 2014

Albert Chen on Ideas for Post-Occupy Political Reform

After the National People's Congress’s important decision regarding political reform in Hong Kong on August 31, 2014 ("August 31 Decision"), according to the “five-step procedure” set out in the Standing Committee of National People's Congress's interpretation of the Basic Law in 2004, the next step is for the Hong Kong SAR Government to draft and submit a specific political reform proposal to the Legislative Council. The HKSAR Government has indicated that it will soon commence the second round of consultation on the details of the political reform proposal to gather opinion of the Hong Kong community on the specifics of the universal suffrage of Chief Executive in 2017. However, political parties and legislators of the pan-democratic camp of Hong Kong have expressed their opposition to the framework set out by the August 31 Decision regarding the universal suffrage of Chief Executive. They claim that they will not participate in the second round of consultation on political reform, and will veto the Government’s reform package in the Legislative Council. On the other hand, while the Occupy Movement protests that began late September were all cleared by December 15, social fragmentation remains serious.
     In such context, the political and social environment in Hong Kong is at its most difficult time since its reunification with the motherland. Hong Kong’s path ahead, including that of the political reform, requires our joint effort to find the way out. Now, the second round of consultation on political reform is one of the major problems we face. The pan-democrats are dissatisfied with the August 31 Decision mainly due to its framework regarding the nominating procedures of Chief Executive candidates, They believe that the Decision fails to comply with the “international standard” of democratic elections, and is not “genuine universal suffrage" . More specifically, the “pan-democrats" believe that under the nomination framework prescribed by the August 31 Decision, the Central Government will manipulate the selection of the two to three nominees who will ultimately be successfully nominated, resulting in the lack of genuine choice for Hong Kong voters during the general election.
     During the second round consultation for political reform, I think that the Hong Kong SAR Government should encourage community participation in formulating a specific nomination and universal suffrage proposal that is both consistent with the August 31 Decision and has the support of the vast majority of Hong Kong people. On one hand, the proposal should be able to ensure that the final candidate is "patriotic" in order to avoid a constitutional crisis arising from the Central Government’s refusal to appoint an elected Chief Executive candidate who is deemed confrontational to the Central Government. On the other hand, this proposal should be sufficiently open and democratic to show that the Central Government has no intention to manipulate the selection of the two to three nominees who secure official candidacy. 
     More specifically, the following issues deserve attention in the second round of consultation:
(1) In designing the Nominating Committee with reference to the existing Election Committee, whether and how to adjust and optimise the existing thirty-eight "sub-sectors" in order to strengthen their representation and to expand the electoral base;
(2) In determining candidacy, whether to adopt the "two-stage" nomination process. The first stage adopts the existing nominating arrangements of the Election Committee for the CE, and each nominee will be jointly recommended by 150 members of the 1200-member Nominating Committee. In the second stage, the official “candidates” will be selected through voting by all members of the Nomination Committee;
(3) If the "two-stage" nomination process mentioned above is adopted, whether and how to make arrangements to gather public opinion (on whether the "nominees" should become an official "candidate") for reference of the Nominating Committee;
(4) If the number of "nominees" produced by the first stage does not exceed three (for example, it is three), whether it is possible to consider the “list voting system” recommended by the "thirteen scholars", under which the Nominating Committee will have a one-off vote on the list that includes the three nominees. If none of the three is a person who is considered confrontational towards the Central Government (i.e. does not meet the "patriotic” standard), then the list of three nominees should become official candidates by a majority vote on the entire list (if the list was voted down, then other voting arrangements may be adopted to select at least two candidates who secure the majority support of the Nominating Committee);
(5) At the stage of universal suffrage, whether to adopt the approach of “let the public keep the tailgate” as proposed by the "eighteen scholars”, Professor Simon Young and others. It may entail that any candidates to be successfully elected must secure a majority (or a prescribed proportion of) support among all votes casted (including both blank votes (votes of abstention) and votes in support of a particular candidate) in the first or second round of voting. 
     In addition to the above model, an alternative model of “let the public keep the tailgate” might be as follows. Following the practice in some countries, the ballot form would include, in addition to the names of the candidates, one option called “None of the Above” (NOTA). If the NOTA votes exceed 50% of the number of voters who vote in the election, the election will be voided. (Otherwise, i.e. if more than 50% of the voters vote for the candidates nominated by the nominating committee, this implies that the majority of the voters accept the nomination procedure as prescribed by the NPCSC.) The nominating committee will then act as an election committee and elect a provisional CE in accordance with the present electoral arrangement for the CE. The provisional CE will have a term of office of, say, two years, during which a fresh election for the CE (by universal suffrage) will be held. This model will mean that instead of the pan-democrats vetoing the political reform proposal and choosing the status quo (原地踏步) on behalf of all the people of HK, it will be the people (voters) of HK who decide (by a majority vote at the next CE election) whether to have an election in accordance with the nomination procedure prescribed by the NPCSC (or to have a provisional CE elected according to the status quo (原地踏步) system). In this scenario, the number of voters who vote NOTA is likely to include (a) those who have already made up their mind now that the NPCSC model is unacceptable, and (b) those who consider at the time of the election that the nominating committee has not done a good job and no candidate nominated by it is worth voting for. The number of people in category (b) is likely to depend on the “performance” of the nominating committee.
     In conclusion, I think the most desirable operation of the system is such that during the first stage of nomination (i.e. stage of selecting nominees), two “pro-establishment” nominees and a “pan-democratic” nominee are produced, all of whom the majority of Nominating Committee members are willing to support, because they are all considered “patriotic” instead of being confrontational by the Central Government. The aforementioned list of three nominees will thus be adopted by the Nominating Committee by majority vote in one go, which allows them to qualify as official candidates. At the stage of general election by public, one of the three candidates receive majority support among all votes casted (including blank votes). So elected, he or she will be appointed by the Central Government as Chief Executive. 
     Of course, the above only illustrates the ideal scenario. In order to cope with other potential circumstances that may arise, the reform package formulated during the second stage of consultation needs to encompass relevant rules to ensure that universal suffrage can elect a Chief Executive who enjoys the support and trust of both the Central Government and the Hong Kong general public.  Written by Albert Chen, Chan Professor of Constitutional Law, with Jackie Lai assisting with the translation.  Professor Chan was recently interviewed on Cable TV on these views.  See also the original Chinese text on which this post is based published in Orange News on 16 December 2014.

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