A little-noticed provision of the Government's constitutional proposals seeks to contravene the Basic Law by restricting the percentage of legislators who can hold right of foreign abode to less than that provided by the Basic Law. If the proposal proceeds into local law, then we will consider bringing a judicial review. Ironically, when it suits them, the Government proposes a percentage nomination criterion for the Chief Executive rather than the absolute number in the Basic Law.

20% of 70 is not 12
30 November 2005

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:

"permanent residents of the Region who are not of Chinese nationality or who have the right of abode in foreign countries may also be elected members of the Legislative Council of the Region, provided that the proportion of such members does not exceed 20 percent of the total membership of the Council"

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:

"The Task Force also considers that the existing arrangement would enable individuals who are not of Chinese nationality to continue to contribute to Hong Kong. It would also help maintain the image of Hong Kong as an international city. Therefore, the Task Force proposes that the existing arrangement of 12 seats be maintained"

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 seats

The 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 them

Ironically, 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:

"Candidates for the office of Chief Executive may be nominated jointly by not less than 100 members of the Election Committee. Each member may nominated only one candidate."

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 Task Force proposes that...the threshold required for nominating candidates be maintained at the existing level i.e. at the ratio of one-eighth of total membership...the number of subscribers required shall be not less than 200."

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.

© Webb-site.com, 2005

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