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Following is a question by the Hon Emily Lau and a reply by the Acting Secretary for Constitutional and Mainland Affairs, Mr Lau Kong-wah, in the Legislative Council today (November 12):
Question:
According to Article 25(b) of the International Covenant on Civil and Political Rights (ICCPR), citizens shall have the right and the opportunity, without unreasonable restrictions, to vote and to be elected at elections. On the other hand, the Standing Committee of the National People's Congress (NPCSC) made a decision on August 31 this year on issues such as the selection of the Chief Executive (CE) of the Hong Kong Special Administrative Region (SAR) by universal suffrage (the NPCSC decision). The United Nations Human Rights Committee (UNHRC) convened a meeting in Geneva on the 23rd of last month to consider matters relating to the implementation of universal suffrage for the selection of CE in the Hong Kong SAR in accordance with ICCPR. It has been reported that UNHRC was of the view that Hong Kong should take all necessary measures to implement the rights of universal suffrage in conformity with ICCPR and that Hong Kong's performance in following UNHRC's recommendations was not satisfactory. In this connection, will the executive authorities inform this Council:
(1) whether they have assessed if the selection of CE by universal suffrage in 2017, conducted under the framework of the NPCSC decision, will comply with the requirement of UNHRC; if the assessment outcome is in the negative, how the authorities will deal with the issue, including how and when they will give a reply to UNHRC; whether the authorities will formulate a universal suffrage system for the selection of CE in 2017 in compliance with the requirement of UNHRC, so as to ensure that Hong Kong people will enjoy the equal right to vote and to stand for election without unreasonable restrictions; if they will, of the details; if not, the reasons for that;
(2) whether they have assessed if the Government has an obligation to ensure that the method for selecting CE by universal suffrage in 2017 complies with the relevant requirements of ICCPR; if the assessment outcome is in the affirmative, how the authorities will honour such obligation; if the assessment outcome is in the negative, of the justifications; and
(3) as officials of both the Central Government and the Hong Kong SAR Government have said that Hong Kong shall follow the Basic Law and the NPCSC decision but not ICCPR in implementing universal suffrage and that the Government of the United Kingdom made a reservation not to apply Article 25(b) when it extended ICCPR to Hong Kong, what justifications, apart from the reservation, the authorities have in support of the statement that the universal suffrage system in Hong Kong is not regulated by ICCPR?
Reply:
President,
The Third Report of the Hong Kong Special Administrative Region (HKSAR) in the light of the International Covenant on Civil and Political Rights (Covenant) (Third Report) was submitted to the United Nations in 2011 as requested by the United Nations Human Rights Committee (UNHRC). Upon the issue of the Concluding Observations of the UNHRC on the Third Report in March 2013, the HKSAR Government submitted a follow-up response to the UNHRC in March this year as requested by the UNHRC, and provided further updated information to the UNHRC in light of a UNHRC meeting in October this year.
The Government is aware that the UNHRC has discussed at its meeting on October 23 the implementation of the Covenant in the HKSAR. However, the HKSAR Government has not yet received any official notification from the UNHRC, and hence it is inappropriate to give any specific comment at this stage. We will consider whether it is necessary to make further response upon receipt of the relevant notification from the UNHRC.
Our reply to the questions raised by the Hon Lau is as follows.
(1) and (2) The constitutional basis of the political structure of the HKSAR lies in the Constitution of the People's Republic of China (Constitution) and the Basic Law. The HKSAR was established by the decision of the National People's Congress made pursuant to Article 31 and Article 62(13) of the Constitution; the systems to be implemented in the HKSAR, including the political structure of the HKSAR, are prescribed in accordance with the Constitution and the Basic Law. According to Article 15 of the Basic Law:
"The Central People's Government shall appoint the Chief Executive and the principal officials of the executive authorities of the Hong Kong Special Administrative Region in accordance with the provisions of Chapter IV of this Law."
According to Article 25 of the Basic Law:
"All Hong Kong residents shall be equal before the law."
According to Article 26 of the Basic Law:
"Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law."
According to Article 45 of the Basic Law:
"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.
The 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.
The specific method for selecting the Chief Executive is prescribed in Annex I: 'Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region'."
On August 31, 2014, the Standing Committee of the National People's Congress (NPCSC) adopted the Decision of the Standing Committee of the National People's Congress on Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016 (Decision), formally determining that universal suffrage for the Chief Executive (CE) election through "one person, one vote" could be implemented in the HKSAR starting from 2017. It also sets out a clear framework on the specific method for selecting the CE by universal suffrage.
In exploring the specific method for selecting the CE by universal suffrage, the Basic Law and the relevant Interpretation and Decisions of the NPCSC must be strictly adhered to, and it must be in accordance with "One Country, Two Systems" and the basic policies of the State regarding Hong Kong. As regards how to devise a specific model for implementing universal suffrage, the design of political systems in different parts of the world is different, this is because the electoral system of each country or place must be devised having regard to her own history, constitutional system and actual situations. The United Nations also recognises that internationally there is no prescribed electoral system considered to be the only one that conforms with the principles of the Covenant.
As mentioned above, the Decision of the NPCSC adopted on August 31, 2014 sets out a clear framework on the method for selecting the CE by universal suffrage. When universal suffrage for the CE election is implemented, all eligible voters in Hong Kong would have the right to vote on a "one person, one vote" basis; and the right to vote is universal and equal. Furthermore, any interested person who meets the requirements in Article 44 of the Basic Law and the relevant statutory qualifications would enjoy an equal opportunity to contend for nomination by the Nominating Committee. Persons nominated by the Nominating Committee would participate in an open election on an equal footing, seek support from five million eligible voters, and enjoy an equal right to be elected.
(3) As regards the Covenant, when the Covenant was applied to Hong Kong in 1976, a reservation was made by the British government reserving the right not to apply Article 25(b). After the establishment of the HKSAR, in accordance with the Central People's Government's notification to the United Nations Secretary-General in June 1997 and Article 39 of the Basic Law, only the provisions as applied to Hong Kong should remain in force, and their implementation has to be through the laws of the HKSAR. Hence, the basis for the ultimate aim of universal suffrage for Hong Kong's constitutional development lies in the Basic Law and the relevant Interpretation and Decisions of the NPCSC, but not the Covenant.
Ends/Wednesday, November 12, 2014
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