DINUSHA PANDITARATNE
Faculty of Law, The Chinese University of Hong Kong  E-mail: [email protected]
19 March 2014
Puja Kapai
Associate Professor and Director
Centre for Comparative and Public Law
Faculty of Law, The University of Hong Kong
Dear Prof. Kapai:
Re: Universal Suffrage and Nomination Procedures: Imperatives from Article 25 ICCPR
Thank you for inviting me to the roundtable on this important topic. I regret that I cannot
attend in person.
I offer below my preliminary views on a few issues raised in the Background Brief and in
particular, those issues that may receive relatively less attention.
I. Furthering the participation of women and minority groups in elections
Many thanks for raising this important issue at the outset (p. 3 of the Background Brief). Due to
the focus on universal suffrage, there appears to be comparatively little media and scholarly
attention to the gendered, racial, and other parameters of political rights in Hong Kong.
In its 2012 periodic report to the Committee on the Elimination of All Forms of Discrimination
against Women, the government of the Hong Kong SAR (the government) stated that, “Women
and men … enjoy the same right to vote and to stand for election of members of the Election
Committee (EC), which is responsible for electing the Chief Executive of the HKSAR;” yet it
acknowledged that only 109 of the 800 members (13.6%) of the Election Committee in 2007 were
female.1 The government’s last report to the Committee on the Elimination of Racial
Discrimination did not provide comparable information on the representation of minority racial
groups in the Election Committee.
Perhaps as a first step, we could ascertain how many women and members of minority groups
are currently represented among the1200 members of the Election Committee. This would help
focus attention on the issue of whether they enjoy equitable representation in this key political
office. Assuming the future nominating committee will consist of some form of functional
constituencies, consideration could be given to adding new subsectors that would ensure the
greater representation of women and minorities.2 I believe that the only current arrangement
See para 7.5, Consideration of reports submitted by States parties under article 18 of the Convention on the Elimination
of All Forms of Discrimination against Women, Combined seventh and eighth periodic reports of States parties, Hong
Kong, China (UN Doc. CEDAW/C/CHN-HKG/7-8), 20 January 2012, available at
http://www2.ohchr.org/english/bodies/cedaw/docs/CEDAW-C-CHN-HKG-7-8_en.pdf.
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along these lines is the provision for 10 members of the Election Committee to be elected by the
Chinese Muslim Cultural and Fraternal Association.
A more specific step in the right direction would be for the government to use gender-neutral
language in its communications with the public. It is noteworthy that the Consultation
Document repeatedly refers to the future Chief Executive as a “he”, and to “his” administration,
thereby assuming and feeding a stereotype about who would occupy this important office.3 The
language is surprisingly regressive, given that the provisions of the Basic Law (adopted almost
25 years ago) are written in assiduously gender-neutral terms.4
II. Meaning of “broadly representative” and “in accordance with democratic procedures” in the
Basic Law
I wish to raise some concerns about the methodology of the government in interpreting the terms
“broadly representative” and “in accordance with democratic procedures.”
Defining “broadly representative”
The term “broadly representative” is used in the Basic Law to describe the Election Committee
in the current system (see Annex 1) as well as the nominating committee in an eventual system
of universal suffrage (see Article 45). In the Consultation Document, the government adopts the
view that these “two references to ‘broadly representative’ should have the same meaning” and
hence “the composition of the EC as provided in Annex I to the Basic Law is of important
reference value.”5
It is similarly important to ensure the equitable representation of women and minorities in the Legislative
Council (LegCo), and even more under some proposals (like Professor Johannes Chan’s) which envision a
relatively small nominating committee that would include all members of LegCo. In Singapore, there are
‘Group Representation Constituencies’ in parliamentary elections, each of which comprises three to six
members, at least one of whom must be non-Chinese. As a consequence, approximately 25% of Singapore’s
ninety-four members of Parliament are from minority ethnic groups; a factor which has been cited as ensuring
ethnic concord. It may be worth studying whether such a scheme could be successfully incorporated into the
current list-based system in LegCo elections (e.g. parties could be required to include at least one woman or
one non-Chinese member on their lists). Alternatively, it may be preferable to foster the participation of
women and minorities in more informal ways, such as via media campaigns featuring a cross-section of role
models in political office (e.g. Tanya Chan, Rita Fan, and Alan Zimmerman) and via supportive organizations
akin to Emily’s List in the United States.
2
See, for example, paras. 1.19, 2.05(ii) and 4.09, Let’s Talk and Achieve Universal Suffrage: Methods for Selecting the
Chief Executive in 2017 and for Forming the Legislative Council in 2016, Consultation Document, The Hong Kong
Special Administrative Region Government, December 2013 (hereafter, the ”Consultation Document”). See, for
instance, para. 4.09, stating, “the implementation of universal suffrage for the LegCo would be taken forward
by the CE returned by universal suffrage in 2017 and the Administration under his leadership.” (Emphasis
added.) The Consultation Document does not appear to contain any of the common exculpatory language
regarding masculine and feminine language.
3
See, for example, Articles 46, 49, 52, 55 and 56 of the Basic Law, all concerning the office of the Chief Executive
and all referring to the incumbent as “he or she”.
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5
Para. 3.12 of the Consultation Document (emphasis added).
2
The government’s view intrinsically favors the establishment of a nominating committee that is
the same (or at least similar) in size and composition to the current Election Committee. It
strikes a preemptive note against proposals for a nominating committee that comprises, for
example, all registered voters or their directly elected representatives.
It is open to debate whether a term used more than once in a constitutional document should be
ascribed the same meaning in each instance. The government does not cite authority for its view
that the term “broadly representative” in Article 45 of the Basic Law should have the same
meaning as it does in Annex I.6 Indeed, there is increasing authority for the contrary view i.e.
that courts can ascribe different meanings to the same term, depending on, firstly, the context in
which the term appears (reflecting a purposive approach to constitutional interpretation) and
secondly, the time in which it is interpreted (reflecting a “living instrument” approach to
interpretation).7
According to this latter view, which reflects more modern approaches to constitutional
interpretation, a future nominating committee could be wholly different in size and
composition to the current Election Committee. This is especially so because Article 45 (and not
Annex I) refers to a broadly representative committee in the context of universal suffrage and
because the public’s expectations of “representative” government have changed considerably
since the adoption of the Basic Law since 1990, almost a quarter century ago.
Defining “in accordance with democratic procedures”
It appears self-evident that the phrase “in accordance with democratic procedures”, like the
term “broadly representative”, has an uncertain and highly contested meaning.8 In the
Consultation Document, however, the government preemptively ascribes this phrase with a
definitive and narrow meaning.
The government could be said to be adopting an intratextualist approach to constitutional interpretation here,
whereby the interpreter “tries to read a contested word or phrase that appears in the Constitution in light of
another passage in the Constitution featuring the same (or a very similar) word or phrase.” See Adrian
Vermeule and Ernest A. Young, Hercules, Herbert, And Amar: The Trouble With Intratextualism, 113 HARV. L. R.
730, 733 (2000), discussing the drawbacks to this approach.
6
See, for example, David C. Williams, Response: The Unitary Second Amendment, 73 N.Y.U. L. REV. 822, 827
(1998), arguing that the phrase “the people” in the Bill of Rights could refer to a number of different ideas—
some more individual and some more collective;” and Vermeule and Young, id, at 732, regarding the
disadvantages of intratextualism, vis-à-vis clause-bound interpretation, whereby “interpreters proceed by
examining the local text, history, and precedent of particular constitutional provisions.”
7
See Albert Chen, A New Era in Hong Kong's Constitutional History, 38 HONG KONG L. J. 1, 7 (2008), at note 31,
observing,
The meaning of this phrase is uncertain and has become controversial in recent years in the context of
the debate on universal suffrage for the election of the CE in Hong Kong. For example, it has been
suggested that the phrase means that all members of the nominating committee should vote for the
purpose of selecting a number of candidates who may then participate in the election of the CE by
universal suffrage.” (Emphasis added; as the government did not appear to adopt this meaning until
recently.)
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Specifically, the Consultation Document appears to assumes that the term “in accordance with
democratic procedures” in Article 45 refers to an “organizational nomination” or “collective
nomination” procedure requiring the involvement of the whole nominating committee – which
is distinct from a procedure whereby individual members of the nominating committee (or the
public) could nominate candidates for election.9
As has been observed, this is a relatively new understanding of the phrase “in accordance with
democratic procedures” that does not have a foundation in the Basic Law.10 It coincides with the
view expressed in March last year by Qiao Xiaoyang, Chairman of the Law Committee of the
National People’s Congress, who indicated that the Central People’s Government may prefer to
adopt nomination procedures in which all candidates for Chief Executive are nominated by the
committee as a whole (presumably because it would help screen out politically undesirable
candidates).11
It is ironic that the phrase “in accordance with democratic procedures” is being defined in a
way that would limit, rather than enhance, democratic participation and aspirations. The
government should broaden its sources of definition beyond purely national sources, and
consider the meaning of the phrase (or similar phrases) in international jurisprudence.
III. Impact of the reservation by the United Kingdom to Article 25 of the ICCPR
The roundtable will undoubtedly help to understand the meaning of “democratic procedures”
in international jurisprudence, especially under Article 25 of the ICCPR. It is worth recalling,
however, that the government does not consider itself bound by the stipulations relating to
universal and equal suffrage in Article 25(b) of the ICCPR. This will limit its receptiveness to
any submissions relating to the requirements of Article 25(b) in the current electoral reform
exercise.
The government maintains that it continues to benefit from the United Kingdom’s reservation
"not to apply sub-paragraph (b) of article 25 in so far as it may require the establishment of an
elected Executive or Legislative Council in Hong Kong [...].12 It has refused to accept the
9
See paras 3.20 and 5.04 of the Consultation Document, stating,
Article 45 of the Basic Law and the Decision of the NPCSC in 2007 provide for CE candidates to be
nominated by the NC in accordance with democratic procedures (i.e. the so-called ‘organisational
nomination’ or ‘collective nomination’), as distinct from the current model of election by the EC whereby
individual EC members may jointly nominate candidates. (Emphasis added.)
See Suzanne Pepper, “Pan-Democrats Answer Back”, January 13, 2014, China: Elections and Governance, at
http://chinaelectionsblog.net/hkfocus/, citing the views of Hong Kong 2020, led by Anson Chan, that,
The government argues that the Basic Law’s reference to ‘democratic procedures’ for universal
suffrage nominations means that the Nominating Committee must nominate as a ‘collective.’ Hong
Kong 2020 points out that the Basic Law makes no reference to collective nomination. This is a new
concept … Hence the term and its provenance need explaining.
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11
DANNY GITTINGS, INTRODUCTION TO THE HONG KONG BASIC LAW 113 (2013).
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position of the Human Rights Committee that once elections have been established, they must
conform to Article 25 of the Covenant.13
Although political rights do not have the status of jus cogens rights, it may be worth
emphasizing to the government that the critical nature of those rights nevertheless demands
careful attention to the requirements of Article 25.14 Even if one accepts the government’s
argument that it does not have a de jure responsibility to implement Article 25(b), it has – by
engaging the very language and goal of “universal suffrage” – accepted a de facto responsibility
to consider the widely accepted meanings of that term.
Thank you for this opportunity to offer my submissions, even in preliminary form. I look
forward to reading and learning from the submissions of other participants.
Sincerely,
Dr. Dinusha Panditaratne
See the Declarations and Reservations of the United Kingdom to the International Covenant on Civil and
Political Rights, at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV4&chapter=4&lang=en
12
See paras. 315-323, Human Rights Committee, Consideration of reports submitted by States parties under Article
40 of the Covenant, Third periodic reports of States parties, Hong Kong, China (UN Doc. CCPR/C/CHN-HKG/3), 31
May 2011, available at http://www.bayefsky.com/reports/china_ccpr_c_chn_hkg_3.pdf.
14 The Human Rights Committee has observed that “Article 25 lies at the core of democratic governments
based on the consent of the people”; see General Comment No. 25, (57), General Comments under article 40,
paragraph 4, of the International Covenant on Civil and Political Rights, Adopted by the Committee at its
1510th meeting, U.N. Doc. CCPR/C/21/Rev.1/Add.7 (1996). See also Wesberry v. Sanders, 376 U.S. 1, 17 (1964),
in which the Supreme Court of the United States recognized,
No right is more precious in a free country than that of having a voice in the election of those who
make the laws under which, as good citizens, we must live. Other rights, even the most basic, are
illusory if the right to vote is undermined.
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