Sunday, February 8, 2015

The 40% and 50% Safeguards in Hong Kong's Suffrage Reform

Gov't's Consultation Document
The 40% Safeguard
Fast forward to March 2017 and imagine tomorrow’s universal suffrage vote results in the following vote count: Candidate “A” gets 100,000 votes, Candidate “B” gets 200,000 votes and Candidate “C” gets 300,000 votes. Should “C” be declared the next Chief Executive? He has the most votes. But what if there were 3 million registered voters, meaning that only 600,000 or 20% of all voters bothered to vote. 2.4 million voters, for one reason or another, decided not to vote. Maybe many of them did not like any of the candidates. Should “C” still be declared the Chief Executive to govern over the whole of Hong Kong for the next five years? Should there be some minimum voter turnout rule, like 40% of all registered voters, before we can say that the final election result is legitimate and acceptable? 40% is a fair threshold given that the turnout rates for the 2012 Legislative Council elections were 53%, 70% and 52%, respectively, for the geographical, traditional functional and super functional constituencies.
The 50% Safeguard
Take another example. This time imagine 50% of all registered votes come out to vote, but the results end up like this: Candidate “D” gets 400,000 votes, Candidate “E” gets 500,000 votes and Candidate “F” gets 600,000 votes. Should “F” be declared the next Chief Executive? She received only 40% of all votes cast; 900,000 or 60% of the voters voted for another candidate. Should she still be the Chief Executive? Perhaps the best way to deal with this problem is to have a second round of voting between only Candidates “E” and “F”, eliminating Candidate “D” because he had the fewest votes in the first round. In the second round, say Candidate “E” gets 900,000 votes and Candidate “F”, by sheer luck, gets 900,010 votes. Should “F” be declared the Chief Executive? I definitely think so because “F” has managed to obtain more than 50% of all the votes cast. Indeed the second round of voting could be avoided if Candidate “F” managed to obtain 750,000 votes or more (being 50% or more of the vote share) in the first round of elections.
Why the Safeguards are Needed?
These two examples are meant to illustrate situations where universal suffrage produces problematic election results unless you have safeguards to fix or avoid the problem. What exactly is the problem illustrated by these examples? They show that if you simply apply a “most votes” rule to determine the winner, you may end up with a leader who does not have the people’s mandate to be their leader. In Hong Kong after the imposition of the restrictive nomination conditions by the National Peoples’ Congress Standing Committee (NPCSC) on 31 August 2014, it becomes imperative to ensure that the leader has a proper mandate from the people. Insisting upon a leader with at least 50% support from voters in an election that has at least 40% of the registered voters participating are not unreasonable safeguards if we are concerned about the legitimacy of future Chief Executive leaders and their accountability to Hong Kong people.
Blank Votes and the 50% Safeguard
Now consider a third example. Candidate “G” gets 300,000 votes, Candidate “H” gets 600,000 votes and Candidate “I” gets 1 million votes. It looks like “I” should win, but what if there were also 200,000 voters who cast blank votes indicating that they supported none of the candidates. Should “I” still be the elected Chief Executive? Not if you accept the 50% safeguard applied in the second example. Candidate “I” failed to obtain a majority (50% or more) of supporting votes from all votes cast. He only obtained 48%. Like the second example, this should move the process to a second round of voting between only Candidates “H” and “I”. In the second round, given that voters can still cast blank votes, the winner must get a majority of supporting votes before he or she will be declared the winner. For example, if, in the second round, Candidate “H” gets 700,000 votes, Candidate “I” gets 1.1 million votes, and 300,000 voters cast blank votes, then “I” will be declared the winner because he managed to obtained 55% of all votes cast, including blank votes. But, if “H” managed to get 800,001 votes, then “I” would not be elected because he would have just failed to obtain the 50% support when the 300,000 blank votes are also counted against him. One might question the wisdom of such a result, but the answer goes back to the fundamental idea that if the central government is to have such a controlling influence over the nomination process then we must insist upon having an elected Chief Executive that has at least the majority support of the voters. If the number of blank votes cast in the first round of voting is quite significant, e.g. accounting for more than 50% of all votes cast, then there is probably no point in holding a second round of voting as the public’s will is clearly in favour of the nomination process beginning anew.
Starting Again
If the nomination process must begin again (whether because of an insufficient voter turnout, blank votes exceed more than 50% of the vote share, or no candidate is able to achieve 50% or more support from voters), there are real concerns about a political vacuum if by 1 July a new Chief Executive has yet to be elected. The best solution is for the existing Administration to remain in power until a new Chief Executive is validly elected and has formed a new Administration. It is doubtful that this can be implemented wholly by local legislation and likely that the NPCSC will need to interpret Article 46 of the Basic Law such that the term of office of the Chief Executive runs seamlessly with the term of office of a newly elected Chief Executive, even if the term itself exceeds five years.
Overriding Aim of the Safeguards
It must be stressed that the 50% and 40% safeguards discussed here are not intended for use in practice. They are intended to prevent abuse and manipulation of the nomination system. The system will be abused if the will of the nominating committee is influenced to such an extent that all the nominated candidates are patriotic to the central government but have little or no public support amongst the Hong Kong electorate. The safeguards are intended to influence central government and nominating committee choices in deciding which candidates to support. The candidates favoured should have a fair degree of public support, lest the safeguards be triggered to force a restart of the nomination process. The safeguards restore the balance after the NPCSC’s August decision and serve to ensure that the elected Chief Executive is truly accountable to both Hong Kong and the central government in accordance with the letter and spirit of Article 43 of the Basic Law.  Written by Simon Young.  The Chinese version of this article was published in Ming Pao on 10 February 2015.

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