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SCA's speech at Justice forum on nominating committee

The following is a speech by the Secretary for Constitutional Affairs, Mr Stephen Lam, at the Forum on "CE Election - Role and Formation of Nominating Committee under Article 45 of the Basic Law" organised by Justice, Hong Kong Section of International Commission of Jurists today (November 15) (English only):

Ladies and Gentlemen,

I am delighted to be here today and have the opportunity to meet with you all and eminent legislators. I also agreed with you, Gladys, entirely that the exchange of views on this subject which is very close to all our hearts is important.

Today's seminar focuses on Article 45 and the nominating committee. Having sought the approval of Margaret and Gladys, I think I am going to start by making a few more general points about the Government's perspective on constitutional development beyond 2007, so that we can take today's discussion in a broader perspective.

The Challenge of 2007

In many ways, dealing with the question of constitutional development beyond 2007 reminds me of dealing with Hong Kong's transition in the run-up to 1997. During those days before the reunification, we had to deal with many complex and difficult issues such as the transition of Hong Kong laws for continued application beyond 1997; multilateral and bilateral treaties; printing the new Hong Kong dollar note; issuing the new HKSAR passport; and the timely establishment of the Court of Final Appeal.

Many of the issues were controversial and unprecedented at that time. Before 1997, I used to say to friends from overseas, "If there is a community which can solve this problem of 1997, it is Hong Kong." Because with the ingenuity, determination and good sense of Hong Kong people, we can make it, and we did.

Now, with the same distinctive set of Hong Kong values, we should be able to deal with and rise to the challenge of setting clear directions for the electoral reforms beyond 2007. There are some people who say it is a "second transition" for Hong Kong . The reunification in 1997 came and went. All the systems that make Hong Kong tick have been preserved and in that sense, the transition has happened. But Hong Kong's electoral systems do need to continue to evolve.

The Basic Law has set out a blueprint for Hong Kong's constitutional development beyond 2007 for the first 10 years, and since 1997, we have been making progress on rolling forward electoral reforms on that basis. Beyond 2007, the Basic Law provides that the ultimate aim is to elect the Chief Executive and the Legislative Council by universal suffrage, and in that process, we should move towards this ultimate aim in the light of the actual situation in Hong Kong and in accordance with the principle of gradual and orderly progress.

Our challenge is two-fold:

* to find a way forward within these parameters set down in the Basic Law and to find a formula which is in the overall interest of Hong Kong; and

* to build consensus on the way forward.

Three Myths

Before addressing the main question of Article 45, I wish to dispel three common myths.

Myth I: Government wants no change

Myth Number I - the Government wants no change in the electoral systems. This is untrue, for two reasons:

* first, in his National Day address, the Chief Executive has made it clear that we are fully aware that the people of Hong Kong have democratic aspirations, and that it is the role of this Government, the current Administration, to promote democratic advancement according to the Basic Law;

* second, it is prescribed in the Basic Law that we should make gradual and orderly progress. So we must continue to roll forward electoral reforms and to press ahead.

Myth II: Hong Kong People are apathetic to politics

The second myth is that Hong Kong people are politically apathetic. This is what people used to say back in the 1960s, perhaps in the 1970s, that Hong Kong people do not care about politics; and their main concern is their livelihood. I disagree. Currently, we have a voter registration rate of 66%. This rate may not be sky-high, but it has reached an appreciable level and is significant. It shows that Hong Kong people do care about Hong Kong's public affairs.

From the demonstration on July 1, we also saw clearly that Hong Kong people value the freedoms of Hong Kong, that they treasure the rule of law, and that they have democratic aspirations.

Next Sunday, we are going to have this year's District Council Election. I hope that all registered electors do make an effort and come out to vote, so that we have a higher turnout rate this year, higher than 35% or so in 1999. The more people who come out to vote, the more enhanced will the representativeness of the members elected be. I think it will also have a positive bearing on Hong Kong's long term democratic progress.

Myth III: Political parties only have a limited role to play in Hong Kong's political process

A third myth is that political parties in Hong Kong only have a limited role to play in Hong Kong's political process. To me, this is a "chicken and egg" situation. It is true that the political parties in Hong Kong only have a limited number of members ranging from several hundred to several thousand. But I believe if we can make more room available both for political parties and independent candidates to take part in electoral politics, they will have a larger role to play in Hong Kong's public affairs, Hong Kong's political development in the long run. I also fully expect to consult, discuss and work together with all political parties and independent members in the next three years, as we move forward in dealing with the question of constitutional development beyond 2007.

All over the world, political parties play a key role in assimilating and digesting views among the community, and presenting these assimilated views as policy options to the population for consideration as regards the governance of the land. This is important. And I think in the context of dealing with post-2007 constitutional development, we should have regard to this point.

CE Election

Now, let me turn to today's main point - Article 45.

Annex I of the Basic Law

For some time, we have been studying paragraph 7 of Annex I to the Basic Law to ascertain whether the method for the selection of the third term Chief Executive, who is expected to take office on July 1, 2007, whether that method of election for the third term could be amended. The nub of the question turns on the phrase "subsequent to the year 2007" in paragraph 7 of Annex I. Does this or does this not include 2007 itself? Having conducted a thorough study on the subject and having taken advice from the Department of Justice, our conclusion is that if there is a need, amendment to the method for the selection of the third term Chief Executive may be considered. However, any proposal put forth must be handled in accordance with the principle of gradual and orderly progress and in the light of the actual situation in Hong Kong as stipulated in the Basic Law, and according to the procedures and requirements set out in Article 45 and Annex I of the Basic Law.

I hope that now we have clarified this legal point, this will enable all of us to pave the way for further discussions.

Nominating Committee

According to Article 45, as and when the Chief Executive is selected by universal suffrage, the candidates are to be nominated by a broadly representative nominating committee. We have researched into the drafting history of the Basic Law, but have not been able to identify much further detail. However, to me the salient points are clear:

* first, the committee is to be the institution responsible for nomination of candidates when Hong Kong's constitutional development has reached the stage for introducing election of the Chief Executive by universal suffrage;

* second, the nominating committee has to be broadly representative; and

* third, it has to go through democratic procedures in nominating candidates.

I look forward to hearing views on the subject by other participants today.


Finally, I would like to say a word about the public consultation process. The Government intends to make full use of the coming three years in undertaking this process of public consultation and review of constitutional development beyond 2007. Before the end of this year, we will make a decision on the timetable for the review and public consultation.

* We will commence public consultation in 2004. We will start listening to and gathering public views from early 2004.

* We will deal with the necessary procedures under the relevant Annexes of the Basic Law in 2005.

* We will deal with any necessary local legislation in 2006.


Many of the speakers today are eminent members of the local legal profession. I am sure that they all support the principles of Natural Justice - one of which is "to hear the other side". I think, in a sense, this encapsulates the spirit in which we must all address the question of constitutional development beyond 2007 and build consensus.

Constitutional debate anywhere in the world can be engaging and controversial. In Australia, they debated whether they should keep the Queen as the sovereign or whether they should establish a republic. In Canada, on several occasions, they debated how they should address the Quebec question.

In Hong Kong, as we journey into the next three years towards 2007, we have a joint mission to set the pace for Hong Kong's future democratic development. Can we, the Hong Kong community, rise to this challenge? I come back to my starting point. I believe we can. We have been able to prepare the smooth transition for Hong Kong in 1997. At that time, many doubted whether we could make it. We have proven the doubters wrong. My point is very simple - if we could solve 1997, we can solve 2007 - provided that we continue to keep the distinctive Hong Kong qualities of determination and sound common sense.

Gladys, thank you for this opportunity. I look forward to hearing from other speakers today.

Ends/Saturday, November 15, 2003