Opposition not excluded from election

China Forum | Leung Kwok-leung

'Pan-democrats' should correct the flaws in their thinking about the process for electing the chief executive by universal suffrage

The decision of the National People's Congress Standing Committee on the method for selecting the chief executive of the Hong Kong Special Administrative Region by universal suffrage in 2017 has greatly upset the "pan-democrats". They believe this decision is designed to exclude them from the chief executive election by universal suffrage. But this is due to some major failings in their thinking.

The first failing is their misunderstanding of the Basic Law. The law gives the Legislative Council more power than many of its counterparts elsewhere. For example, the Basic Law allows LegCo to veto important government bills such as the plans for constitutional reform with only one-third of the vote. That is highly unusual among legislatures around the world. If the United States Congress wants to defeat a presidential bill a minimum of two-thirds of the votes is required, while the US president needs only 50 percent of congressional support to pass the bill. The "pan-democrats" need to remember the extraordinary powers they enjoy through the Basic Law. They need to appreciate its many benefits. The Basic Law is far more democratic than many similar legislative structures in Western societies.

The second failing is misjudging the NPCSC decision. The so-called three locks established by the NPCSC are: first, nomination by a nominating committee, required by the Basic Law and therefore beyond dispute; second, nomination by a simple majority of the nominating committee. The "pan-democrats" should remember that the Court of Final Appeal requires a simple majority to pass any collective ruling. It is only natural that the nomination of candidates for the chief executive election requires a simple majority of the nominating committee, as it is the sole legal institution established for the task.

The third lock is the preference for two or three candidates, although apparently this is flexible. The second and third "locks" are not mentioned in the Basic Law. These two aspects of the NPCSC decision represent the national legislature's trust in the ability of the HKSAR to reach its own decisions on these issues.

It is a shame so many opposition lawmakers with legal backgrounds fail to recognize these opportunities. How would they feel if they were the NPCSC, and the "threshold" was significantly lowered allowing scores of candidates to run for the office of chief executive? Maybe they don't mind making fools of themselves, but how about the rest of Hong Kong? Do they really have nothing better to do than oppose things simply for the sake of it?

The third failing is their misunderstanding of the nature of the nominating committee. As an institution sanctioned by law the nominating committee is constrained in terms of its power and composition. It has the power to nominate candidates for the chief executive election but not to decide who wins. Only legitimate voters can decide who wins the chief executive election. It will comprise four main sectors with an equal number of members - just as the existing Election Committee does. The Election Committee is far more powerful than the nominating committee. The broad nature of its representation is more than adequate for the less powerful nominating committee. Besides, members of the nominating committee will have to be elected on equal terms no matter what their parties are.

The fourth failing of the opposition camp is their challenge of the specifics of the nominating committee.

The NPCSC has set the framework, or general principles, for the structure of the nominating committee and how it will work. However, many details have been left for the HKSAR to develop. If the devil truly is in the details, then so be it. For example, the decision does not specify how many times each nominating committee member can vote. This means one may support three, four or even five aspiring CE candidates. It is up to Hongkongers to decide the actual number of times each member of the nominating committee will be able to vote. Do the "pan-democrats" really want to give this up?

The fifth failing is their inability to understand that Beijing has left it to the HKSAR to develop the nomination process.

When the full session of the National People's Congress convenes, the NPCSC will stop exercising its authority and let the broadly representative Presidium of the National People's Congress take charge of drawing up a list of chairmen, vice-chairmen and members of the NPCSC through democratic discussion. It will then pass it to the general assembly for approval by secret ballot. Without this arrangement it would be impossible for the deputies of ethnic minorities and those representing non-communist parties to become NPCSC members. This is because they are always a minority and can never win a floor vote. Can the 1,200-member nominating committee operate in this way? It is certainly worth working for. Why the "pan-democrats" would not want there to be one more way to be nominated is perplexing.

The sixth failing is confusing popular support for their participation in the chief executive election process with popular support in winning the election. This is their biggest failing.

Some Hong Kong residents hope the "pan-democrats" are represented in the chief executive election process because they want it to be as competitive and fair as possible. That is not to say most local residents are not well aware of the risks of putting an opposition politician in the chief executive office and facing the consequences of that person turning against the central government. That fear - of a possible constitutional crisis - could convince voters to skip the opposition ticket - that is unless the "pan-democrats" change their ways.

The author is a veteran journalist based in Hong Kong.