stephenching.htm

A Constitutional Basis for Using a Timetable
to Implement Dual Universal Suffrage

Democratic development in Hong Kong is manifested by the progress made in the methods used to select the Chief Executive (CE) and to form the Legislative Council (LegCo) since reunification with the Mainland in 1997. The first CE was selected by a 400-member selection committee and the second-term CE by a 800-member election committee. Little democratic progress was displayed in the selection of the CE, but a more significant progress was made in the formation of the LegCo. The proportion of the LegCo members returned by geographical constituencies (i.e. direct election) increased from one-third in the first term, to two-fifths in the second term, and to one-half in the third term. Note that the specific methods used to select the first and second-term CE and to form the first three LegCos were exactly the same as the ones stipulated in, respectively, Annexes I and II to the Basic Law of Hong Kong Special Administrative Region (HKSAR). Hence, the two annexes constituted a timetable of specific commitments to democratic development in Hong Kong. The full realization of the specific commitments during the first seven years since reunification demonstrated that a timetable was an effective means to implement the Basic Law in Hong Kong.

The Basic Law allows amendments of Annexes I and II to provide new methods for selecting the CE and forming the LegCo in and after 2007. Amendments of the two annexes are governed by Articles 45 and 68 of the Basic Law, which state the principles for the CE selection and the LegCo formation, respectively. Our analysis shows that the following general commitments to democratic development in Hong Kong are implied by the principles:

• The development ought to progress in a "gradual and orderly" manner
• The ultimate goal of the development is to use universal suffrage to select the CE and to elect all the LegCo members

To fulfill these general commitments, we argue that amendments of Annexes I and II require replacing the current timetable (constituted by the two annexes) with a new timetable leading to the use of universal suffrage to select the CE and to elect all the LegCo members. Consultation is needed to determine how "gradual" such a timetable should be.

To consider amendments of Annexes I and II, the HKSAR government has set up the Constitutional Development Task Force. Unfortunately, the current consultation conducted by the task force focuses only on the new methods for selecting the CE in 2007 and for forming the LegCo in 2008. Note that the introduction of a timetable to implement dual universal suffrage is not covered in this consultation. The task force should widen its scope to include such a timetable and focus its consultation on it.

We begin with a review of the democratic development in Hong Kong during the first seven years since reunification.

The first CE of the HKSAR was selected by a selection committee on December 11, 1996. The contest initially attracted eight candidates, but only three of them met the nomination requirement, which stipulated that (1) a valid candidate had to be nominated by at least 50 members of the selection committee and (2) each member of the selection committee could nominate one candidate. There were 400 members in the selection committee, who were also the only electors of the first chief executive. All of them were elected by the preparatory committee on November 2, 1996. The preparatory committee was set up on January 26, 1996. It had 150 members, who were appointed by the Standing Committee of the National People's Congress (NPCSC). Evidently, the selection committee was critical in the selection of the first chief executive and dominated by the Beijing interest.

Some changes were made to the method used to select the second-term CE in 2002. First, the 400-member selection committee was replaced by a 800-member election committee. Second, over 80% of the 800 members of the election committee were elected. Specifically, 664 of them were elected from 35 subsectors in Hong Kong on July 9, 2000. The remaining 136 members comprised 40 members nominated by the religious subsector in Hong Kong and 96 ex-officio members (i.e. Hong Kong deputies to the National People's Congress (NPC) and LegCo members). Third, nomination of a candidate required the support of a minimum of 100 members of the election committee. The one member, one nomination requirement was kept, however. In addition, the electors of the second-term CE remained exclusive to the 800 members of the election committee. The incumbent, despite his consistently low popularity rating, was nominated by 714 members of the election committee! Hence, only the incumbent could become a valid candidate and he was declared to be the second-term CE on February 28, 2002. The nomination result showed that (1) the interest of Hong Kong people was ignored by the election committee and (2) it was used to preempt the selection of the CE. In general, the selection method was designed to make the rights to elect the CE less important than the power to nominate a candidate of the CE.

The election committee was formed more than one-and-a-half year before the 2002 CE election. It was formed in July 2000, because it was the same election committee used to return six members to the second-term LegCo on September 10, 2000. The other 54 members of the second-term LegCo comprised 24 members returned by geographical constituencies (i.e. direct election) and 30 members by functional constituencies. As a democratization process, the number of legislators returned by election committee had decreased from ten in the first term¹ to none in the third term.² The number of legislators returned by geographical constituencies had increased correspondingly from 20 in the first term to 30 in the third term. There had been no change to the number of legislators returned by functional constituencies in all the three terms. Hence, the size of the LegCo has remained constant at 60 throughout the three terms.

All the methods described in the previous section were exactly the same as the ones prescribed by the Basic Law of HKSAR when it was adopted and promulgated on April 4, 1990. Specifically, the methods used to select the first and second-term CE were stipulated in Annex I to the Basic Law: Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region; and the methods to form the first, second- and third-term LegCo in Annex II to the Basic Law: Method for the Formation of the Legislative Council of the Hong Kong Special Administrative Region and Its Voting Procedure.³ Together, Annexes I and II constituted a timetable that encompassed specific commitments to a gradual democratic development for Hong Kong since reunification with the Mainland in 1997. The full realization of the specific commitments in the past seven years demonstrated that a timetable was an effective means to implement the Basic Law in Hong Kong.

Specific methods for selecting the third-term CE in 2007 and for forming the fourth-term LegCo in 2008 are, however, not predetermined by the Basic Law. Annexes I and II allow for amendments of the methods for selecting the CE "subsequent to the year 2007" and for forming the LegCo "after 2007", respectively. Hence, the specific commitments in the two annexes were confined to the methods prescribed for the first two CE selections and the first three LegCo elections. The commitments were relatively short term, which is a common feature of specific commitments. It has been expected that the two annexes will be amended to provide new methods for selecting the CE and for forming the LegCo in and after 2007. In a statement made by Director Ji Pengfei, the Chairman of the Drafting Committee for the Basic Law of the HKSAR, at the third session of the Seventh NPC on March 28, 1990, it was revealed that the legislative intent of providing the CE-selection and LegCo-formation methods in Annexes I and II, respectively, is "to make them more amenable to revision when necessary".

While the specific methods for selecting the CE and for forming the LegCo were, respectively, stipulated in Annexes I and II, the general principles governing the CE selection and the LegCo formation are, respectively, contained in Articles 45 and 68 of the Basic Law. Hence, a proper understanding of the two articles is required to discuss amendments of the two annexes. The next section turns to the two articles.

Article 45 is discussed first. It has three paragraphs and the general principles for the CE selection are encompassed in the second paragraph, which reads:

The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.

Two general commitments to the development of the methods for the CE selection are found above. First, the development ought to progress in a "gradual and orderly" manner. Second, the "ultimate" goal of the development is to use universal suffrage to select the chief executive. Note that the development is also subject to the "actual situation" in Hong Kong, but the term "actual situation" is not defined in the Basic Law. Nor can it be defined objectively (see below). The provision is not considered as a commitment, because a commitment is meaningful only if it is committed to something that is clearly defined or, at least, can be defined objectively.

Article 68 is a close resemblance of Article 45. Its second paragraph is reproduced below to illustrate the general commitments to the development of the methods for the LegCo formation:

The method for forming the Legislative Council shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the election of all the members of the Legislative Council by universal suffrage.

It is clear that the two corresponding general commitments are: (1) the development of the methods for the LegCo formation ought to progress in a "gradual and orderly" manner and (2) the "ultimate" goal of the development is to use universal suffrage to elect all the LegCo members.

The general commitments identified in this section serve as the pillars for amending Annexes I and II.

Recall that Annexes I and II are to be amended to provide new specific methods for selecting the CE and for forming the LegCo in or after 2007. Amendments of the two annexes have been widely anticipated in Hong Kong and the anticipation could be formed as early as when the Basic Law was adopted in early 1990. For instance, the Democratic Party (DP) has a long-standing policy advocating the use of universal suffrage to select the CE in 2007 and to elect all the LegCo members in 2008. Interestingly, the same policy had been shared by two pro-Beijing political parties, Democratic Alliance for the Betterment of Hong Kong (DAB) and the Liberal Party (LP), for many years.⁴ The DP, DAB, and LP are the three largest political parties in Hong Kong.

Letting people form early expectation of amendments of the two annexes allows policy makers to have ample time to prepare for it. However, the HKSAR government neither conducted consultation about, nor initiated discussion of, political development in Hong Kong at the constitutional level during its first six years of administration. The issue became imminent after the demonstration on July 1, 2003 (the largest demonstration since the reunification). Yet the government did not address it for another six months until it set up the Constitutional Development Task Force on January 7, 2004.

The task force has so far issued one paper and three reports. The paper⁵ was presented to the LegCo on January 14, 2004. The first report⁶ was released on March 30, 2004, a week before the NPCSC reached an interpretation⁷ of Article 7 of Annex I and Article II of Annex II to the Basic Law on April 6. Less than ten days later, on April 15, the task force's second report⁸ was publicized and the CE submitted a report⁹ to the NPCSC on the same day. Ten days afterwards, on April 26, the NPCSC reached a decision¹⁰ on the methods for selecting the CE in 2007 and for forming the LegCo in 2008. The decision:

The third CE and the fourth LegCo will have terms of five years and four years, respectively. Hence, political development in Hong Kong will be bound by the decision until 2012. The decision was reached in less than five months — an inadequate amount of time to consider such an important issue. The process could have been better handled had the government started it earlier. The work of the task force (up to its third report) is examined below to determine whether it may have overlooked any critical points during the process.

The starting point is the task force's paper to the LegCo, which identifies two categories of issues as follows:

The paper lists five issues pertaining to the legislative process, which are addressed by the task force's first report as follows:

With the exception of the last one, these issues are relatively straightforward. The last issue involves interpretation of the ambiguous phrase "subsequent to the year 2007" in Article 7 of Annex I. The question is whether the method for selecting the third-term CE in 2007 can be amended. The task force ultimately formed its view based on the understanding that "the Basic Law prescribes the blueprint for the constitutional development for 10 years after reunification, in order to preserve stability and prosperity" (paragraph 3.17 of the first report), inter alia. We agree with this view and other views as expressed in the first report; however, we wish to point out that all the legislative issues addressed by the first report are purely legalistic. These issues could have been addressed at any point after the establishment of the HKSAR government and should have been considered much earlier to allow the government sufficient time to deal with other, more challenging, issues of principles in the Basic Law relating to constitutional development. This brings us to the subject of the second report, which offers the task force's views on the three categories of the principles outlined in its LegCo paper:

With regard to the principles in the first category, we generally agree with the task force's views. The task force presents four major views, two of which are highlighted here: (1) "the Central Authorities have constitutional powers and responsibilities to oversee and determine constitutional development in the HKSAR" (paragraph 5.23(i)) and (2) "any proposed amendments must comply with the provisions of the Basic Law" (paragraph 5.23(ii)).

We find, however, that the task force did not thoroughly understand the principles in the second category. As we point out earlier, it is not proper to regard "actual situation" as a commitment in the Basic Law, because the term is not clearly defined. More important, we suspect that it cannot be defined objectively, as the task force agrees. Paragraph 5.15 of the second report states that: "It is no easy task to have an accurate assessment of the actual situation. Objective factors as well as subjective judgements are involved. ... Every person has his own standpoint, and there is no absolute yardstick to judge right from wrong." For this reason, "actual situation" does not qualify as a commitment. Subjecting other commitments in the Basic Law to it will only undermine the credibility of the Basic Law. The task force missed this important point.

The task force also missed a much more important point relating to the principle of "gradual and orderly progress". (This principle is different from the "actual situation" principle in substance, because "progress" has a clear meaning.) We find the task force interpretation of the former principle superficial and narrow. Paragraph 5.17 of the second report states that "the pace should not be too fast; progress should be made in a gradual and orderly manner step by step." Our view is that this principle is sufficiently clear to constitute a commitment to making progress in the methods for selecting the CE and for forming the LegCo in and after 2007.

We point out, in Section 3, that Annexes I and II constituted a timetable encompassing specific commitments to a democratic development in Hong Kong. To meet the principle of "gradual and orderly progress", amendments of the two annexes require replacing the current timetable with a new timetable representing stronger specific commitments to democratization. To strengthen the pre-existing specific commitments, we suggest introducing a timetable leading to the use of universal suffrage to select the CE and to elect all the LegCo members in the future.

An advantage of introducing such a timetable is to close the gap between Annexes I and II and Articles 45 and 68, which state that the ultimate aim is to select the CE and elect all the LegCo members by universal suffrage. The ultimate aim, as we point out in Section 4, is another general commitment in the Basic Law. Fulfilling it will enhance the credibility of the Basic Law.

The other advantage of having a new timetable is to help preserve stability and prosperity in Hong Kong, in the original spirit of the Basic Law as noted by the task force in paragraph 3.17 of its first report: "the Basic Law prescribes the blueprint for the constitutional development for 10 years after reunification, in order to preserve stability and prosperity".

Hence, introducing a timetable to implement dual universal suffrage constitutes "orderly progress". The question remains, however, as to whether it constitutes "gradual progress". The meaning of "gradual" is more subjective than that of "orderly progress". Hence, the former should not be used to overshadow the latter when the credibility of the Basic Law is at stake. Moreover, we only suggest introducing a timetable to implement dual universal suffrage. Such a timetable could be very gradual. Consultation is needed to determine what sort of would be accepted as promoting "gradual progress".

The task force's second report also presented an in-depth discussion of the third category of principles: "meeting the interests of the different sectors of society" and "facilitating the development of the capitalist economy". It is misleading to call them principles in the Basic Law, because they do not appear in the Basic Law. They may be regarded as reference principles and should be invoked with cautions so as not to jeopardize the credibility of the Basic Law. In any case, we do not see how they can affect our suggestion of introducing a timetable to implement dual universal suffrage, as a timetable for political development is consistent with the original spirit of the Basic Law, which strives to preserve stability and prosperity. Since there is no contradiction between a timetable to implement dual universal suffrage and these two principles, the two principles can be included in the consultation exercise if deemed appropriate.

We believe that this boarder (and proper) interpretation of Articles 45 and 68 and Annexes I and II is the most critical point that the task force missed. The unfortunate consequence of this oversight is that the scope of political development is now limited to the methods for selecting the CE in 2007 and for forming the LegCo in 2008, as evidenced in the CE's report, the NPCSC's decision, and the task force's third report¹¹. As a result of this oversight, the task force, in its third report, has severely restricted the areas that may be considered for amendment as follows:

These areas are so narrow that some are not even at the constitutional level. For example, the delineation and size of the electorate of the election committee and the delineation and size of the electorate of functional constituencies fall under the purview of local electoral laws.

These technical problems are not critical. The fundamental problem is that the scope of such a narrow consultation exercise is misleading. Future consultation should be focus on using a timetable to implement dual universal suffrage and on which timetable could be accepted as constituting "gradual progress". Other principles related to the Basic Law could also be included in the consultation if deemed appropriate.

The task force pointed out that many views support using a timetable to implement dual universal suffrage. What we have done is to establish a constitutional basis for these views. The views are consistent with the NPCSC's decision as long as the timetable prescribes the methods for selecting the third-term CE and for forming the fourth-term LegCo in accordance with the NPCSC's decision.

¹ Like the election committee formed in July 2000, the election committee for the first LegCo election had 800 members and essentially the same composition. In particular, 683 of the 800 members were elected from 35 subsectors in Hong Kong on April 2, 1998, 40 were nominated by the religious subsector in Hong Kong and 77 were ex-officio members (i.e. Hong Kong deputies to the NPC and provisional LegCo members). Unlike the 2000 election committee, it was not used to select the CE.

² The first LegCo election was held on May 24, 1998 and the third-term on September 12, 2004.

³ Strictly speaking, the methods used to select the first CE and to form the first LegCo were in the Decision of the NPC on the Method for the Formation of the First Government and the First Legislative Council of the Hong Kong Special Administrative Region. The decision was attached to the Basic Law when the Basic Law was adopted at the third session of the Seventh NPC on April 4, 1990.

⁴ The DAB and LP dropped the policy only recently after the NPCSC ruled against it on April 28, 2004 (see the text).

⁵ Legislative Council Panel on Constitutional Affairs: Task Force on Constitutional Affairs.

⁶ The First Report of the Constitutional Development Task Force: Issues of Legislative Process in the Basic Law Relating to Constitutional Development.

⁷ The Interpretation by the Standing Committee of the National People's Congress of Article 7 of Annex I and Article III of Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China.

⁸ The Second Report of the Constitutional Development Task Force: Issues of Principle in the Basic Law Relating to Constitutional Development.

⁹ Report on Whether There Is a Need to Amend the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region in 2007 and for Forming the Legislative Council of the Hong Kong Special Administrative Region in 2008.

¹⁰ Decision of the Standing Committee of the National People's Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region in the Year 2007 and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2008.

¹¹ The Third Report of the Constitutional Development Task Force: Areas Which May be Considered for Amendment in Respect of the Methods for Selecting the Chief Executive in 2007 and for Forming the Legislative Council in 2008, May 11, 2004.

* Stephen Ching is Associate Professor at the School of Economics and Finance, The University of Hong Kong.


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