Daily Archives: May 30, 2014

The Hong Kong Basic Law and Universal Suffrage

Hans Mahncke

Photo: Hans Mahncke

Almost every day we hear and read about the differing views on introducing universal suffrage in Hong Kong. The only thing that everyone seems to agree on is that whatever kind of universal suffrage is to be introduced, it should be compatible with the Basic Law of Hong Kong. This makes sense, since any election law which contravenes the Basic Law would be invalid. The problem, of course, is that everyone seems to have a different view on what the Basic Law says and on what it allows.

Whenever these types of questions arise, I always find it useful – rather than listen to all that is being said – to look at the primary source, the text of the agreement itself. The relevant part of the Basic Law which everyone seems to be arguing about is Article 45. In relevant part it says:

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.

The first thing that sticks out is that universal suffrage is not guaranteed, it is merely the “ultimate aim”. Assuming that in 2017, i.e. 20 years after the handover, Hong Kong will have reached the point where everyone agrees to effect that ultimate aim, how is that ultimate aim to be effected? In this respect, it is inescapable that candidates will have to be nominated before any election can take place. It is also inescapable that nomination has to be performed by a “broadly representative nominating committee”. This, in a nutshell, is the argument which pro-Beijing forces incessantly recite. However, as pro-democracy advocates point out, there is no guidance on what “broadly representative” means. So while the former wants to retain the existing nominating committee of 1200, the latter camp is suggesting that the committee could in theory comprise millions of people.

While this issue really does seem to be intractable, I have seen or heard few people consider the last part of the sentence, “in accordance with democratic procedures“. The first question is which preceding part does this last part qualify. Is it the Chief Executive selection? It seems not, as the selection itself is already qualified by the term universal suffrage. But is it the nominating committee which has be chosen in accordance with democratic procedures, or is it the actual nominating which has to be done in accordance with democratic procedures? Personally, I tend towards the latter, simply because if it was the former, we would probably find the words “to be chosen” inserted between the terms “nominating committee” and “in accordance”. Further, the term “broadly representative” already seems to qualify the term “nominating committee“. However, it is also possible to regard the term “in accordance with democratic procedures”  as a catch-all proviso providing that both the selection of candidates and the composition of the nominating committee is subject to democratic procedures.

Overall, Article 45 evidences the sort of diplomatic compromise wording which can be found throughout the Basic Law – something that is hardly surprising, given that the whole document is essentially a compromise reached between fairly divergent belief systems. What can be said, however, is that universal suffrage, if it is to be introduced, will only extend to choosing amongst already nominated candidates. The most convincing argument the pro-democracy camp could make is that the nominating itself is subject to democratic procedures, as is the case in many democratic states. In other words, the nominating committee could be regarded as something akin to the electoral college in the United States, in the sense that it would take on a largely symbolic role, merely giving effect to the the nomination wishes expressed by the public “in accordance with democratic procedures“.