Hong Kong’s Constitutional Crossroads: to Pocket or Not to Pocket?

by | May 6, 2015

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About Mathias Cheung

Mathias Cheung is a barrister at Atkin Chambers in London and a BCL graduate from Magdalen College. He has a strong interest in constitutional law, human rights and comparative public law.


Mathias Cheung, ‘Hong Kong’s Constitutional Crossroads: to Pocket or Not to Pocket?’ (OxHRH Blog, 6 May 2015) <http://humanrights.dev3.oneltd.eu/hong-kongs-constitutional-crossroads-to-pocket-or-not-to-pocket/> [Date of Access].|Mathias Cheung, ‘Hong Kong’s Constitutional Crossroads: to Pocket or Not to Pocket?’ (OxHRH Blog, 6 May 2015) <https://ohrh.law.ox.ac.uk/hong-kongs-constitutional-crossroads-to-pocket-or-not-to-pocket/> [Date of Access].|Mathias Cheung, ‘Hong Kong’s Constitutional Crossroads: to Pocket or Not to Pocket?’ (OxHRH Blog, 6 May 2015) <https://ohrh.law.ox.ac.uk/hong-kongs-constitutional-crossroads-to-pocket-or-not-to-pocket/> [Date of Access].

On 22 April 2015, the Hong Kong Government finally unveiled the reform package to introduce elections by universal suffrage of the Chief Executive, Hong Kong’s head of government. Currently, the Chief Executive is selected by a Beijing-controlled Election Committee comprising 1,200 members. Mrs Anson Chan, convenor of Hong Kong 2020, rightly criticised the package while visiting Oxbridge last week, prompting us to reflect on its merits and dangers.

It is peculiar enough that the proposal is entitled “Method for Selecting”–not electing–the Chief Executive. The proposal follows verbatim the rigid framework indicated by the National People’s Congress Standing Committee’s (NPCSC) Decision on 31 August 2014 – if only the Government were as faithful in following the scheme of the Basic Law and public opinion expressed through Occupy Central.

The reform package proposes two hurdles at the nomination stage, monopolised by 1,200 members of an unelected Nominating Committee (which is the same as the current Election Committee in all but name), before the people even get to vote on two to three nominated candidates:

1. An aspirant can enter the nomination stage if he secures the recommendation of 120 members;

2. An aspirant must then obtain the support of more than 50% of the Nominating Committee to be nominated as a candidate.

No issue has ever been more divisive than the furore surrounding Hong Kong’s road to universal suffrage. The question is not whether we should allow people to participate in the next election (as misleadingly suggested by the Government), but whether the reform package enables participation in any meaningful sense. The reform package simply turns the people’s votes into a rubber stamp.

A lobbying showdown now ensues. One need not look far to see how public opinion is being manipulated. In the onslaught of propaganda, one slogan has been relentlessly repeated: “Make it happen!” The problem is – make what happen? The rhetoric stressing “one man one vote” is the stuff of Orwellian “doublethink”: “to use logic against logic, to repudiate morality while laying claim to it, to believe that democracy was impossible and that [the Government] was the guardian of democracy”.

The Government urges everyone to “pocket” this restrictive package first, claiming that there is room for improvement in the future. In deciding whether to do so, we must ask three questions: (a) What is democracy, and does the NPCSC framework achieve that? (b) Are we bound by the NPCSC framework? (c) What are the consequences of “pocketing” this package?

As Strasbourg emphasised in Handyside v UK at [49], there is no democratic society without “pluralism, tolerance and broadmindedness”. Baroness Hale expresses this succinctly in Chesterat [88]:  Democracy is about more than respecting the views of the majority. It is also about safeguarding the rights of minorities, including unpopular minorities.” Thus, an unelected Nominating Committee that filters out unpalatable candidates, labeled as “minority” political groups, is undemocratic.

The NPCSC framework is a piece of Chinese law. Article 18(2) of the Basic Law provides that Chinese laws do not apply to Hong Kong. What then is the legal basis? It cannot be an “interpretation” of the Basic Law pursuant to Article 158(1), for the framework contradicts various Basic Law provisions, especially the equal right of every person to stand for election under Article 26. As Lord Rodger stated in Ghaidan v Godin-Mendozaat [121], “To read in words that are inconsistent with the scheme of the legislation or with its essential principles… falls on the wrong side of the boundary between interpretation and amendment”. Therefore, the NPCSC framework is not legally binding, contrary to what the Government alleges.

“Pocketing” this framework carries irrevocable consequences – it will trap Hong Kong indefinitely within an undemocratic cycle. As Chief Secretary Carrie Lam implied, the package fulfils the Government’s obligation under Article 45 of the Basic Law to implement Chief Executive elections by universal suffrage. There would be no constitutional requirement for further democratisation, let alone any incentive. The most alarming point, however, is that expressed by Mrs Anson Chan – the framework confers “fake legitimacy” on an effectively “selected” Chief Executive.

Great is the danger of the lack of democracy, but greater still is the danger of the illusion of democracy. Whereas a lack of perceived democracy motivates a demand for change, an illusion of democracy threatens a slumber of complacency. In that sense, the package is truly an “endgame”, and the ultimate victims are our society and economy.

As Mrs Anson Chan exhorted, “each and everyone of you can make a difference by speaking up with the voice of reason.” To put it as Howard Zinn did, “when enough people do enough things, however small they are, then change takes place”. We the people, standing as one, shall guard the core values of our home. It is our birthright. It is our duty.

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