Hong
Kong Human Rights Commission
Submission
to
the
Legco Panel on
Constitutional
Affairs
on
"Review
of the method for selecting
the
Chief Executive
under
the Basic Law"
June
2003
Hong
Kong Human Rights Commission
3/F,
52 Princess Margaret Road, Homantin, Kowloon, Hong Kong, China
Tel:
(852) 2713 9165, Fax: (852) 2761 3326
Email:
hkhrc@pacific.net.hk
A. General comment
- This paper submitted by the Hong Kong Human Rights Commission
(HKHRC) represents the written submission to the Legislative Council Panel on
Constitutional Affairs on the "Review of the method for selecting the Chief
Executive under the Basic Law".
- HKHRC is seriously critical of the fact that the Secretary
for Constitutional Affairs Stephen Lam Sui-lung has cast doubt as to whether the
Basic Law allows universal suffrage to be used for the third Chief Executive election.
The remark by Mr. Lam is disappointing as it reflects the leadership's lack of
commitment to full democratization of Hong Kong.
- It is the firm view of the HKHRC that the interpretation
of the phrase "the terms subsequent to the year 2007" in paragraph 7
of Annex I to the Basic Law should be construed to include the third term of office
of the Chief Executive in 2007. Therefore the method for selecting the third term
Chief Executive in 2007 should be included in the Administration's review on constitutional
development as soon as possible.
- HKHRC urges the government to conduct a review and a broad
and in depth consultation by 2004 on the reforms needed to achieve universal suffrage
of the Chief Executive in 2007. Furthermore, a timetable for the process leading
to universal suffrage of the Chief Executive should be outlined.
- The Government has both local and international obligations to introduce
universal suffrage. The Hong Kong Bill of Rights article 21 states that every
permanent resident has the right to participate in public life and the right to
vote at genuine periodic elections which shall be by universal and equal suffrage[1].
Furthermore article 25 of the International Covenant on Civil and Political Rights
also states that every citizen shall have the right to vote at periodic elections
which shall be by universal suffrage[2].
B. The Chinese legal language of the Basic
Law
- Annex I of the Basic Law states that if there is a need
to amend the method for selecting the Chief Executives for the terms subsequent
to the year 2007, such amendments should be endorsed by two-thirds of the LegCo,
the consent of the Chief Executive and the Standing Committee of the National
People's Congress for approval.
- In the Chinese legal language 'subsequent to 2007' would mean to include
the year 2007. This has been confirmed by Mr. Albert Chen Hung-yee of the University
of Hong Kong and member of the central government-appointed Basic Law Committee.
According to Mr. Chen: " [In] the legal language of the mainland, the phrase
'terms subsequent to the year 2007' should generally include any date within 2007"[3].
C. A historical interpretation of the Basic Law
- A second factor pointing to the fact that the term 'subsequent to 2007'
is meant to include the year 2007 is the historical process of the creation of
the Basic Law. Addressing the Third Session of the Seventh National People's Congress
on March 28, 1990 the chair of the Basic Law Drafting Committee (Drafting Committee),
Mr. Ji Pengfei proposed that there would be no changes to the Basic Law within
10 years. As the Basic Law was put into effect as of 1 July 1997, this would mean
that the 10 year period is meant to only include 1 July 1997 to 30 June 2007.
This has recently been confirmed by Mr. Wu Jianfan, also a former mainland member
of the Basic Law Drafting Committee, who has stated that it was the intention
of the Drafting Committee to maintain political stability in Hong Kong in the
first 10 years of the handover by ruling out changes to the electoral method for
the Chief Executive during that period[4].
- Furthermore Mr. Ji Pengfei stated that: "[in]
the ten years between 1997 and 2007, the Chief Executive will be elected by a
broadly representative election committee. If there is need to amend this method
of election after that period, such amendments must be made with the endorsement
of a two-thirds majority of all the members of the Legislative Council…"[5].
The ten years between 1997 and 2007 can only refer to the two terms of office
between1 July 1997 and 30 June 2007, as each term shall be five years.
- Also Mr. Wu Jianfan, former mainland member of the drafting
committee of the Basic Law, has recently pronounced that the review of
the post-2007 constitutional framework should cover both the election for the
third Chief Executive and the Legislative Council in 2008. Lastly, Mr. Xu Chongde,
another former mainland member of the drafting committee, agreed that changes
were allowed under the Basic Law. He said that it would not violate the Basic
Law if changes were made for the 2007 chief executive election[6].
D. A purposive interpretation of the Basic
Law
- Annex II of the Basic Law outlines the method for the
formation of the Legislative Council of Hong Kong SAR. In the Annex only the composition
of LegCo in the second and third term is outlined, thus opening up the possibility
for amendments of the procedure for forming the Legislative Council of the fourth
term. Therefore in Annex II (III) amendment procedures subsequent to the year
2007 is mentioned.
- According to article 69 of the Basic Law the term of office of the Legislative
Council shall be four years, except the first term which shall be two years. The
first term thus refers to 1997 - 1999, the second term 1999 - 2003, and the third
term would refer to 2003 - 2007. This implies that the fourth term would mean
1 July 2007 - 30 June 2011. In this case the interpretation of the term 'subsequent
to the year 2007' in Annex II means that it refers to the period starting from
1 July 2007[7]. The above interpretation thus
implies that the term 'subsequent to the year 2007' in general should be broadly
interpreted as including part of the year 2007.
- Furthermore the fourth term of office of LegCo has not
been specified in the Basic Law regarding the composition and the method of its
formation. As article 68 of the Basic Law stipulates that the ultimate aim is
the election of all members of the LegCo by universal suffrage, it implies that
universal suffrage can be introduced from 1 July 2007.
- Comparing with Annex I of the Basic Law, the style of
writing of Annex II is parallel to it. Furthermore article 45 of the Basic Law
stipulates that the ultimate aim is the selection of the Chief Executive by universal
suffrage. Therefore, it can be inferred that the amendment of the method for selecting
the Chief Executives subsequent to the year 2007 can be initiated already on 1
July 2007 and universal suffrage can be introduced on that day.
E. Public support for universal suffrage in 2007
16. On 21 May 2003 a non-binding Legislative
Council Motion tabled by Democratic Party vice-chairman Mr. Albert Ho Chun-yan
urged that the Basic Law be amended so as to expedite the full implementation
of the election of the Chief Executive and all Members of the Legislative Council
by universal suffrage. Although it was not passed, the breakdown of the votes
reveal that the motion was in fact passed by geographical constituencies and the
Election Committee, with 15 voting for and 11 against the motion [8],
thus revealing popular support for universal suffrage.
17. Furthermore there is evidence that there is public support
for the chief executive to be returned by universal suffrage in 2007. Thus 65.5%
in a poll of 1,222 respondents interviewed in a Democratic Party poll in May 2003
(between May 9 and May 12) backed universal suffrage. Only 11 per cent preferred
direct elections in 2012 and 62% were dissatisfied with the current arrangement
with the Chief Executive being picked by an 800-member Election Committee[9] .
F. Recommendations
- HKHRC urges the Administration to conduct a thorough review on constitutional
development in 2004. The review should be characterized by transparency and a
genuine will towards universal suffrage . The review should include a broad public
consultation in 2004 including all sectors of society. HKHRC urges the Administration
to take positive and concrete steps to include more groups such as NGOs and marginalized
groups of society.
- Most importantly, the public opinion for introducing universal suffrage
of the Chief Executive on 1 July 2007 should also be taken into serious consideration
and the Government should ensure the full realization of the civil and political
rights of the Hong Kong citizens as prescribed by the Basic Law and the international
covenants.
[3] Ambrose Leung 2003: "Reality holds sway
in debate on elections" in: South China Morning Post, 22 May.
[5] Ji Pengfei 1990: "Explanations on "The Basic Law of the
Hong Kong - Addressing the Third Session of the Seventh National People's Congress
on March 28, 1990".