In the heat of the battle for universal suffrage, nobody seems to have noticed that one aspect of the Government proposals for constitutional reform does not comply with the Basic Law. Article 67 of the Basic Law states:
That's right, it says "20 percent", not 12. The Government proposes to increase the number of legislators from 60 to 70, by creating 5 new Functional Constituencies to be elected by District Councillors, and 5 to be elected by Geographic Constituencies. It doesn't take a supercomputer to tell you that 20% of 70 is 14. Ignoring this, paragraph 5.23 of the Government's report states:
That's not the "existing arrangement". 12 out of 70 is only 17.1%. Setting a limit of less than 20% in local law contravenes the Basic Law by restricting the right of permanent residents who are not Chinese and those with right of foreign abode to serve in the Council. If the Government claims that the Basic Law allows the local law to set a lower limit, then by implication the limit could be set at 1 seat or zero - there's nothing magical about 12. In the interests of full disclosure, your editor is a permanent resident with the right of foreign abode. If this proposal proceeds, then in the public interest we will seek legal support with a view to bringing a judicial review of the lower limit. Now obviously it is not easy for local members of the pro-democracy camp to make this point without being accused of being "unpatriotic" or kow-towing to foreigners, but the point should be made, because Hong Kong's economic success is built on foreign trade and the rule of law, which itself is a foreign import. If the Government can subvert the rule of law by passing local legislation which restricts rights contained in the Basic Law, then we are on a slippery slope towards One Country, One System. Rights of permanent residents who have right of foreign abode should be protected. Let's not forget that several of the current Executive Councillors held, and their relatives may still hold, foreign right of abode. Currently the reform proposals only involve amending Annexes I and II of the Basic Law, on the election methods of the Chief Executive and Legislative Council. If Government wants to amend Article 67, in the main body of the Basic Law, then it must follow due process under Article 159, and it would be the first ever amendment of the main body of the SAR constitution. The allocation of seatsThe obvious question that Article 67 of the Basic Law raises is how to allocate the quota of 20% when all elections are held simultaneously. So in 1997, the Government tabled a bill to the Provisional Legislative Council which took the easy way out by making it independent of the election process and allocating the 12 out of 60 seats that could hold foreign passports to Functional Constituencies as follows:
Source: Section 37(3) of the Legislative Council Ordinance. As two of the current 12 (former British passport holder David Li Kwok Po in Finance and Bernard Chan Chi-sze, also known by his Thai name of Charnwut Sophonpanich, in Insurance) have been appointed as members of the Executive Council, they can no longer hold right of abode in foreign countries. Obviously this allocation makes it impossible for any non-Chinese person or a person with the right of foreign abode to run for election in the Geographic constituencies. The Basic Law was not intended to prevent this, but only to place a 20% cap on the legislature as a whole. If we bring a judicial review, then we will tackle this issue too. A fairer system would split the 14 seats of the 70 seat council which could be held by permanent residents who are foreign passport-holders between the Functional Constituencies (7) and the Geographic constituencies (7). The Geographic constituency elections are determined by a distorted from of proportional representation which we have explained in a previous article One Vote, Wrong System. Candidates who are not Chinese or have foreign right of abode would declare this in their candidacy, and if, apart form their right of foreign abode, more than 7 of them would have been elected by popular vote, then those among them with the 7 highest percentages of the vote in their respective constituencies would be elected, while the rest would be disqualified. The same process could be used in both the Functional and Geographic halves of LegCo. The likely outcome of our suggested arrangement is that at any point in time, fewer than the maximum 14 legislators would hold foreign right of abode, but it would comply with the Basic Law, which is more than you can say for the Government's proposal in this matter. Fractions when it suits themIronically, when it suits them, the Government prefers to use percentages rather than absolute numbers. The "existing arrangement" for nominating the Chief Executive is in Annex I, paragraph 4 of the Basic Law, which states:
That's a numeric limit, not a percentage. Now the Government proposes to raise the membership of the Election Committee to 1600, but says:
The "existing level" is of course 100, not one-eighth or 12.5%. If the Basic Law meant one-eighth, then it should have stated a fraction or percentage, as it did in Article 67. Raising the threshold to 200, and also keeping the existing public nomination system (with all the peer pressure it brings) rather than the secret ballot used in the 1996 nominations, will make it substantially harder for a pro-democracy candidate to be nominated, which of course is the Government's intent. Copyright Webb-site.com, 2005 Sign up for our free newsletter Recommend Webb-site.com to a friend Important notice: All material on this site, except where otherwise accredited, is copyright to Webb-site.com. Media and researchers are welcome to quote from articles on this site, provided that such quotation is attributed to Webb-site.com. The information in this site should not be relied upon by any person in making any investment decision. No responsibility or liability is accepted by Webb-site.com or any person related to it for any loss arising from or in reliance upon the whole or any part of the contents of this site. Persons who are in any doubt about an investment or potential investment should take professional investment advice. From time to time parties associated with Webb-site.com may own long or short positions in securities issued by or related to companies or governments on which we comment. |