|LCQ15: Constitutional development (with Annex)
Following is a question by Dr Hon Lam Tai-fai and a written reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (April 9):
On December 4 last year, the Government published the "Consultation Document on the Methods for Selecting the Chief Executive in 2017 and for Forming the Legislative Council in 2016" and launched a five-month public consultation on constitutional development, which will end on May 3 this year. In this connection, members of the Task Force on Constitutional Development earlier hosted four dinners to meet in groups with Members of this Council from different political affiliations, and held four breakfast meetings to enable Members of this Council to exchange views on constitutional development in groups with officials from the Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region (HKSAR). Moreover, the Central People's Government has made arrangements for Members of this Council to visit Shanghai on the 12th and 13th of this month and during the visit, mainland officials such as the Director of the Hong Kong and Macao Affairs Office of the State Council as well as the Chairman of the HKSAR Basic Law Committee under the Standing Committee of the National People's Congress (NPCSC) will meet with Members of this Council in Shanghai and discuss the constitutional development of Hong Kong. In this regard, will the Government inform this Council:
(1) of the number of submissions received so far and, among them, the respective numbers of submissions from individuals and organisations;
(2) given that paragraph 1.14 of the aforesaid Consultation Document points out that amendments to the methods for selecting the Chief Executive and for forming the Legislative Council have to go through the "Five-step Process", of the timetable for each step of the "Five-step Process"; the expected time for launching the second round public consultation, as well as the time for putting forward concrete proposals on constitutional development;
(3) of the list of attendees of each of the aforesaid dinners and breakfast meetings (set out in tables), and whether it has assessed the effectiveness of such activities in reducing the differences and building consensus among Members of this Council in respect of constitutional development; whether it will hold similar exchange activities again before the end of the consultation;
(4) whether it knows the detailed arrangements for Members of this Council to meet in groups with the mainland officials for exchanging views on constitutional development during the visit to Shanghai;
(5) given that Article 45(1) of the Basic Law stipulates that "the Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People's Government", whether the Government has studied the definition for "selected through consultations", among whom the consultations should be conducted, as well as the circumstances under which the Chief Executive should be selected through consultations;
(6) given that Article 45(2) of the Basic Law stipulates that "[t]he method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures", of the definitions adopted by the Government for the following terms: (i) "actual situation", (ii) "gradual and orderly progress", (iii) "broadly representative", and (iv) "democratic procedures";
(7) whether it will seek legal advice on the constitutionality of the "civil nomination" and the "three-track nomination" (i.e. candidature in the 2017 Chief Executive election can be obtained through any one of the three routes, namely civil nomination, nomination by political parties and nomination by a nominating committee) proposed by the pan-democrats, and give the public an account of the views obtained; if it will, of the time to give such an account; if not, the reasons for that;
(8) if it has sought legal advice on whether the "Occupy Central" movement is illegal, and whether it will give an account of this to the public; if it will, when it will give such an account; if not, the reasons for that; and
(9) as it has been reported that the NPCSC's Chairman indicated earlier that the Chief Executive selected by way of universal suffrage should be a person who "loves the country and Hong Kong", whether the Government has studied how to define "a person who loves the country and Hong Kong"; whether it has studied if a person who promotes, participates in or supports the "Occupy Central" movement as well as one who does not uphold the Basic Law should be regarded as a person who loves the country and Hong Kong; if it has studied, of the justifications for the relevant conclusions?
According to the Decision made by the Standing Committee of the National People's Congress (NPCSC) in 2007, the election of the fifth Chief Executive (CE) of the Hong Kong Special Administrative Region (HKSAR) in the year 2017 may be implemented by the method of universal suffrage. It is the common aspiration of the Central Authorities, the HKSAR Government, and the public at large to attain universal suffrage for the CE election in 2017, strictly in accordance with the Basic Law and the relevant Interpretation and Decisions of the NPCSC. It is also an important policy objective of the current term HKSAR Government. On December 4, 2013, the HKSAR Government formally launched the public consultation on the implementation of universal suffrage for the CE election in 2017 and the method for forming the Legislative Council (LegCo) in 2016 to prepare for the "Five-step Process" of constitutional development. The five-month consultation will end on May 3, 2014. We hope that different sectors of the community will conduct thorough discussions on the issues related to the two electoral methods, on the legal basis of the Basic Law and the relevant Interpretation and Decisions of the NPCSC. Our reply to the questions raised by Dr Hon Lam is as follows.
As at end of March 2014, the Administration has received over 20 000 written submissions from various organisations and individuals. We are still processing the submissions. Among the submissions that have been processed, the majority are from individuals.
After the consultation period, the Administration will consolidate and summarise the views received. According to the Interpretation made by the NPCSC in 2004, the CE shall make a report to the NPCSC on whether there is a need to amend the methods for selecting the CE and for forming the LegCo (i.e., the "First Step"), and the NPCSC shall make a determination (the "Second Step"). After the NPCSC has made the determination, we expect the second stage public consultation can be launched around the 4th quarter of 2014, and the package of proposals to amend the annexes to the Basic Law can be put forward to the LegCo after the completion of the consultation (the "Third Step").
According to the Basic Law and the Interpretation made by the NPCSC in 2004, any proposal has to obtain endorsement by a two-thirds majority of all the members of the LegCo, consent of the CE, and reported to the NPCSC for approval or for the record. To facilitate communication and discussion among various parties and Members of the LegCo, the Chief Secretary for Administration invited all Members of the LegCo for dinner and breakfast meetings in January and March 2014 respectively, to have exchanges of views and discussions in groups on the issues related to the two electoral methods. The Administration considers such meetings useful in promoting communication and creating a good atmosphere for forging consensus. The HKSAR Government is willing to arrange in the future any occasions that could be beneficial to facilitating rational and peaceful communication and forging consensus among different political parties, the HKSAR Government, and even representatives from the Central People's Government (CPG). Attendance lists of the above-mentioned dinners and breakfast meetings are at Annex.
Members of the LegCo have always expressed a wish to visit the Mainland. The CE is supportive of such visit and at his suggestion, the Central Authorities have agreed to arrange for all members of LegCo to visit Shanghai during April 12-13, 2014. With the support from the Central Authorities and assistance of the Shanghai Municipal Government, and taking into account members' suggestions and travelling time as set out in the incoming letter from the President of LegCo dated March 21, 2014 as well as the circumstances in Shanghai, CE has provided to the President of LegCo arrangements related to the visit vide a letter of March 27, 2014. The visit will include a meeting cum official meal with Shanghai leaders; visits to Hongqiao Central Business District and transportation hub, manufacturing site of Commercial Aircraft Corporation of China (where the first China trunk liner is being manufactured) and Shanghai Urban Planning Exhibition Center; seminars by experts on international relations and diplomatic policy as well as national comprehensive reform; a briefing session by the Shanghai Municipal Government on Shanghai Free Trade Zone (there will be interactive discussion during the seminars and briefing session); reserving half day for Mr Wang Guangya, Director of the Hong Kong and Macao Affairs Office of the State Council, Mr Li Fei, Chairman of Hong Kong Basic Law Committee of NPCSC, and Mr Zhang Xiaoming, Director of Liaison Office of the CPG in the HKSAR, to meet with LegCo members, including listening to LegCo members' opinions and suggestions and exchanging views on topics of mutual interest such as social and economic development in Hong Kong, relationship between Hong Kong and the Mainland and constitutional development etc.; and a gathering with Hong Kong residents and businessmen in Shanghai to understand their situation and exchange views on developments of Hong Kong and Shanghai.
The Consultation Document on the Methods for Selecting the Chief Executive in 2017 and for Forming the Legislative Council in 2016, published on December 4, 2013, has set out for public reference the design principles of the political structure of the HKSAR, relevant Articles in the Basic Law, as well as major issues and related questions to be considered in relation to the method for selecting the CE. The Secretary for Justice has written an article on January 29, 2014 on certain legal viewpoints with respect to Article 45 of the Basic Law for public reference in considering the method for selecting the CE in 2017. The HKSAR Government is currently consulting the public on the method for selecting the CE in 2017, we will not comment on views or suggestions from specific organisations or individuals at this stage.
The HKSAR Government fully respects the freedom of expression of every individual. However, we also hope that different sectors of the community could forge consensus on the method for selecting the CE in 2017 with a rational and pragmatic mind to take forward constitutional development in Hong Kong. Participants of any public activities should abide by the law without affecting public order, and express their views and opinions in a peaceful manner. Illegal activities will be handled strictly in accordance with the law.
According to the description of duties of the CE in the Basic Law, e.g., as stipulated in Article 43 of the Basic Law, the CE shall be accountable to the CPG and the HKSAR in accordance with the provisions of the Basic Law; Article 48 of the Basic Law stipulates that the CE shall lead the government of the HKSAR, be responsible for the implementation of the Basic Law, and implement the directives issued by the CPG in respect of the relevant matters provided for in the Basic Law, as well as conduct, on behalf of the HKSAR, external affairs and other affairs as authorised by the Central Authorities. Besides, according to section 16(7) of the Chief Executive Election Ordinance (Cap. 569), a nomination of a CE election candidate shall be accompanied by a declaration to the effect that he will uphold the Basic Law and pledge allegiance to the HKSAR. Article 104 of the Basic Law also stipulates that when assuming office, the CE, principal officials, members of the Executive Council and of the LegCo, judges of the courts at all levels and other members of the judiciary in the HKSAR must, in accordance with law, swear to uphold the Basic Law of the HKSAR of the People's Republic of China and swear allegiance to the HKSAR of the People's Republic of China. According to section 16A(1) of the Oaths and Declarations Ordinance (Cap. 11), a person appointed or elected as the CE shall take the Oath of the CE before entering upon any of the duties of his office. That Oath is in line with the requirement of Article 104 of the Basic Law regarding the CE's swearing in, and the requirement of Article 47 of the Basic Law that the CE must be a person of integrity, dedicated to his or her duties. As reflected in the above, the CE being the head of the HKSAR as well as the head of the executive authorities of the HKSAR has an important and unique status; he is elected in the HKSAR and appointed by the CPG, and is accountable to the CPG and the HKSAR pursuant to the Basic Law. He also has to uphold and implement the Basic Law. The requirements as stipulated in the Basic Law clearly illustrate that the CE must be a person who loves the country and loves Hong Kong, in order to ensure that he would faithfully discharge the constitutional duties this important position entails.
Ends/Wednesday, April 9, 2014