Research brief: Some considerations on the nomination procedure of CE elections as stipulated in the Basic Law

 In Chief Executive & Legislative Council Elections, Constitutional Reform, Constitutional Reform, Governance & Institutional Design
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  • According to the Basic Law, the nomination procedure for the election of CE by universal suffrage involves two steps:
    1. formation of a broadly representative nominating committee
    2. nomination of CE candidates by the nominating committee in accordance with democratic procedures
  • Not a few proposals regarding the size and composition of the nominating committee as well as the nomination threshold have been put forward over the years.
  • The major bone of contention is whether the nomination procedure will become a “screening” or “pre-election” process, which limits HK people’s right to elect and to be elected.
  • The institutional design issue is: How can the nomination procedure as stipulated in the Basic Law be instituted in a way that it does not restrict Hong Kong people’s rights to elect and to be elected in CE elections?
  • In this regard, understanding the precise meanings of “the right to elect” and “the right to be elected” will provide an objective basis for designing the nominating arrangements and making a discerning choice among different proposals.
  • The “equal right to elect” demands that voters’ choices alone determine the outcome of an election. This requirement in turn enjoins the right to nominate candidates of one’s choice; if the right to nominate is breached in any way, a voter’s voting right is not fully his.
  • The “equal right to be elected” demands that institutional rules ensure equal probability of success for those running for office before voters decide; in other words, institutional rules should not give any candidate any higher probability to win in an election before voters decide.
  • From these two premises, it can be seen that the Basic Law requirement of nomination inevitably constricts our equal right to elect and to be elected (unless ingenious methods can be found to get round such limitations).
    • It limits the “right to elect” as the election outcome becomes partly dependent on the nominating committee’s choices instead of solely on the choices of voters.
    • It violates the “right to be elected” by reducing the chance to win an election to zero of those candidates not favored by the nominating committee.
    • Before voters decide, the nominating committee already decides who cannot win the election by failing to nominate certain candidates.
    • The election result is thus circumscribed by the nominating committee rather than determined solely by voters.
    • It is entirely conceivable that certain candidates not liked by the nominating committee are highly popular with voters or vice versa.[1]
  • It can also be seen that any proposal about the committee’s size or composition based on pre-selected sectors misses the crux of the problem because no magic number for the size or magic formula for the composition of the committee can render it consistent with the requirements of the “right to elect” and the “right to be elected”.[2]
  • To salvage our rights from the Basic Law constriction, a way has to be found to institute the nominating committee such that its choices of candidates resemble those of the voters to the largest extent possible.
  • Two tentative methods that can be considered and explored are:
    • (1) to constitute the nominating committee with a statistical random sample of Hong Kong voters so that it becomes a mirror image of the electorate; to ensure its representativeness, the size of the committee must be at least 1,000.
    • (2) to elect the nominating committee by universal suffrage.[3]
  • On these two methods, institutional design issues pending deliberation include:
    • Given its finite size (of the magnitude of a couple of thousands at most), it is not inconceivable that the nominating committee will be subject to interference or manipulation of various kinds, such as bribery and intimidation. What mechanisms can prevent these from happening so that the choices of the committee remain genuinely its?
    • If the committee comprises a statistically representative sample of Hong Kong voters and if it is free from any interference or manipulation, its choices should theoretically resemble those of the electorate at large. But if the committee is directly elected by voters, even if it is free from interference and manipulation, no resemblance between voters’ choices and committee members’ choices can be guaranteed. Take for instance, if reelection to the nominating committee is out of the question for whatever reasons, a committee member may have no incentive to nominate CE candidates in accordance with the wishes of the electorate. What mechanisms can incentivize directly-elected nominating committee members to nominate CE candidates in line with the wishes of the voters?
  • Regarding the nomination threshold (i.e. the minimum number of nominations needed from nominating committee members in order to gain access to the ballot), the only consideration should be to deter frivolous candidates.

 

 

Winston Ng (吳君韻)

Hong Kong Democratic Foundation (香港民主促進會)

17 March 2013

 

 

Endnotes:

[1] The analysis above is drawn from the research brief, The nominating committee: restriction on democracy in Hong Kong? in the Appendix of this paper. See the brief for further details.

[2] Admittedly, most advanced democracies have nominating mechanisms of some sort for the election of public offices. However, the nomination mechanisms of these democracies differ from Hong Kong’s CE nomination requirement in a very fundamental way. See the research brief mentioned in Note 1 above for explanation.

[3] The Frontier, in its submission to the Consultation on Constitutional Development in July 2000, commented that the nomination requirements stipulated in Article 45 of the Basic Law breached Hong Kong people’s right to be elected and that Article 45 should be amended. Before Article 45 is amended, they suggested electing the nominating committee by universal suffrage.

 

 

 


Appendix


 

Research brief on democracy – The nominating committee: restriction on democracy in Hong Kong?

 

Scope

  • Article 45 of the Basic Law provides that:
    • “The CE of the HKSAR shall be selected by election or through consultations held locally and be appointed by the CPG.”
    • “The method for selecting the CE shall be specified in the light of the actual situation in the HKSAR and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the CE by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.”
  • Regarding the nomination method for selecting the Chief Executive as stipulated in Article 45, concern has been expressed that it violates the principles of democracy.
  • In view of this concern, we endeavour in this brief to conduct a systematic analysis of the nomination method and to examine whether, and how, it might restrict democracy in Hong Kong.

 

Democracy, political equality, equal right to elect, & equal right to be elected

  • It is commonly agreed among political theorists that political equality is the defining value of democracy, which essentially means that citizens have equal right to participate in the collective decision-making process of a polity.
  • In a large-scale representative democracy, citizens exercise their right of political participation either through selecting representatives to make decisions on their behalf, or through taking part in the collective decision-making process direct by running for public office.
  • The institutional manifestations of the value of political equality in a large-scale representative democracy, inter alia, are:
    • an equal right to elect;
    • an equal right to be elected.
  • Since political equality is the defining value of democracy, it is important to recognize that one cannot deny the equal right to elect or to be elected without denying democracy.

 

Does the nominating committee limit citizens’ equal right to elect? If it does, in what way?

  • To answer the question, we need first of all to examine in better detail the meaning of “the equal right to elect”.
  • The notion of “the equal right to elect” means and entails the following:
    • The right to vote for whichever candidate one prefers.
    • The right to elect also entails the right to nominate candidates of one’s choice; if the right to nominate is deprived, a voter’s voting choice is not fully his.
    • In order that a voter’s voting choice reflects fully his preference, the pool of potential candidates should be unrestricted.
    • The election outcome should reflect the configuration of preferences of voters as a whole and such configuration only; any deviation from such configuration implies that some voters are given greater weight in shaping the outcome.
  • Based on this understanding of the equal right to elect, the requirement that CE candidates should be nominated by a nominating committee limits citizens’ equal right to elect in the following ways:
    • It deprives citizens of the right to nominate candidates of their own choice.
    • It restricts citizens’ choice-set of candidates.
    • It deprives citizens of the right to express their true preferences of who should be their decision-makers.
    • It grants a subgroup of citizens, i.e., members of the nominating committee, additional influence in shaping the election outcome; the election outcome thus partly reflects the preference of the nominating committee rather than solely the configuration of the preferences of the voters as a whole.

 

Does the nominating committee violate citizens’ equal right to run for public office? If it does, in what way?

  • Likewise, to answer this question, we need first of all to examine what the notion of “the equal right to run for public office” entails.
  • According to Rehfeld (2006), an equal right to run for public office requires two necessary conditions as follows:
    1. Citizens must be legally permitted to run for office.
    2. Institutional rules should treat citizens equally who choose to run for office. In more formal language, institutional rules should ensure equal probability of success for those who choose to run for office before voters decide; in other words, institutional rules should not give one group of potential candidates higher probability to win the election before voters decide.
  • The intuition of the second condition is that the probability of success for those running for office should be left fully open to the judgment/preference of the voters rather than factors external to the voters.
  • Rehfeld (2006) gives an example of gerrymandering that aptly illustrates the rationale behind the second condition. In the US, if one stands as a candidate in a district that has a majority of African-Americans, being black may increase one’s probability of success. Such higher probability of success is a combination of two factors: i) voters prefer to vote for someone of similar ethnic origin; and ii) constituency boundaries are drawn in such a way that residents of similar ethnic origins are grouped together. The first factor is simply the preference of voters; by contrast, the second factor is the result of the institutional rules of districting. If the rules of districting are changed so that multi- ethnic districts obtain, the probability of success will also change. The rules of districting thus alter the probability of success for African-American candidates even before voters decide. Fair districting rules should be neutral to potential candidates regardless of race, to name just one pertinent factor.
  • In the context of Hong Kong, the nominating method for CE elections thus violates citizens’ equal right to run for public office in the following manner:
    • Before voters decide, the nominating committee alters the probability of success differentially for each potential candidate – the probability of success for those who are not favored by the nominating committee will be reduced to zero.
    • The most important point to note is that such an alteration of probability of success is resultant of the electoral arrangement rather than of the judgment of voters.

 

The nominating committee vis-à-vis nominating mechanisms of other advanced democracies

  • Admittedly, most advanced democracies have nominating mechanisms of some sort for the election of public offices.
  • Thus, it is natural to ask
    • How and in what ways are these nominating mechanisms different from the CE nominating method in Hong Kong?
    • Do these nominating mechanisms restrict democracy in the same way as the CE nomination method in Hong Kong does?
  • While all nominating mechanisms inevitably limit the right to elect or the right to be elected one way or another, those in advanced democracies differ from Hong Kong’s CE nomination method in a very fundamental way:
    • The major objective of a nominating mechanism in advanced democracies is to deter frivolous candidates (Beetham and Boyle 1995 & Katz 1997).
    • Usually, this objective is achieved by requiring 1) a minimum number of supporting signatures from registered voters; and/or 2) a monetary deposit; and/or 3) nomination by a recognized political party (Beetham and Boyle 1995 & Katz 1997).
    • While such requirements may limit the choice-set of voters and deter candidates, there are no institutional barriers that bar strongly committed candidates from soliciting sufficient support from the citizenry or forming a political party to gain access to the ballot. Whether or not they succeed in gaining access to the ballot depends on their public popularity. The choice rests ultimately with voters.
    • Conversely, the CE election nominating method denies prospective candidates of any alternative path to the ballot other than the nominating committee. Whether or not candidates succeed in gaining access to the ballot depends entirely on the preferences of members of the nominating committee. It is not inconceivable, however, that some candidates may be popular among the citizenry but who are not liked by members of the nominating committee. The preference of the nominating committee in this case takes precedence over that of the citizenry.

 

Concluding remarks

  • The last remark appears to allow us to conclude that unless the nominating committee can be instituted in such a way that it becomes a mirror image of the citizenry, it is inevitable that the CE election nomination method will violate the core value of democracy.
  • Such a task – making the nominating committee a mirror of the citizenry – is however almost next to impossible.
  • Even if one were to constitute the nominating committee with a statistically-random sample of the citizenry, a lot of questions remain to be addressed.
  • We are of the view that only nominating mechanisms based on considerations akin to those in other advanced democracies are consistent with the core value of democracy.
  • Unfortunately, such nominating mechanisms do not comply with the related Basic Law provision.
  • All in all, what can be said at this stage is that all the options listed in the Green Paper on Constitutional Development concerning the size and composition of the nominating committee are missing the point altogether: no magic number for the size of the committee can of itself make the committee democratic; no composition via pre-ordained groupings or sectors can match the self-initiation and self-determination central to the value of democratic participation.

 

 

Hong Kong Democratic Foundation

2007

 

 

References:

Beetham, David. 1999. Democracy and Human Rights. Cambridge: Polity Press.

Beetham, David. Ed. 1994. Defining and Measuring Democracy. London: SAGE Publications.

Beetham, David and Boyle, Kevin. 1995. Introducing Democracy: 80 Questions and Answers. Cambridge: Polity Press in association with UNESCO Publishing.

Beetham, David; Bracking, Sarah; Kearton, Iain; and Weir, Stuart. 2002. International IDEA Handbook on Democracy Assessment. The Hague, The Netherlands: Kluwer Law International.

Dahl, Robert A. 1989. Democracy and Its Critics. New Haven and London: Yale University Press.

International Institute for Democracy and Electoral Assistance (International IDEA). 2002. International

Electoral Standards: Guidelines for Reviewing the Legal Framework of Elections. Stockholm, Sweden: International IDEA.

Katz, Richard S. 1997. Democracy and Elections. New York: Oxford University Press.

Rehfeld, Richard. 2006. On Quotas and Qualifications for Office: An Essay in Institutional Democratic Theory. Paper presented at the Conference on Representation and Popular Rule, Yale University, 27-28 October 2006.

 

 

 

 

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