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Decision of the Standing Committee of the National People’s Congress on issues relating to the selection of the Chief Executive by universal suffrage
2014-10-15

Following is a question by the Hon Charles Peter Mok and a reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (October 15):

Question:

According to the Interpretation by the Standing Committee of the National People’s Congress (NPCSC) of Article 7 of Annex I to the Basic Law adopted on April 6, 2004 (the 2004 Interpretation), the Chief Executive (CE) of the Hong Kong Special Administrative Region (SAR) shall make a report to NPCSC as regards whether there is a need to amend the method for selecting CE; and then NPCSC shall make a determination. The bills on the amendments to the method for selecting CE shall be introduced by the SAR Government into the Legislative Council (LegCo). However, after considering the relevant report submitted by CE, NPCSC made a decision on August 31 of this year, which includes that, when the selection of CE is implemented by the method of universal suffrage, the provisions for the composition of the nominating committee shall be made in accordance with the composition of the existing Election Committee; the nominating committee shall nominate two to three candidates; and each candidate must have the endorsement of more than half of all the members of the nominating committee (the decision on the nominating committee). In this connection, will the Government inform this Council:

(1) given that the 2004 Interpretation mentions only that NPCSC shall make a determination as regards whether there is a need to amend the method for selecting CE, but not that NPCSC has the power to decide how the method for selecting CE shall be amended, whether it has studied if NPCSC’s decision on the nominating committee is legally binding; if the study outcome is in the affirmative, of the Basic Law provisions based on which the decision was made;

(2) given the stipulation in the 2004 Interpretation that the bills on the amendments to the method for selecting CE shall be introduced by the SAR Government into LegCo, whether it has studied if NPCSC’s decision on the nominating committee has contravened the principles of “Hong Kong people ruling Hong Kong” and “a high degree of autonomy”, and whether the decision has contravened Annex I to the Basic Law and the 2004 Interpretation; if it has, of the outcome; and

(3) whether it has studied if NPCSC’s decision on the nominating committee complies with Articles 25, 26 and 39 of the Basic Law; if it has, of the outcome?

Reply:

Mr President,

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). The Decision of the NPCSC marks the completion of the second step of the “Five-step Process” of constitutional development, and formally determined that universal suffrage for the Chief Executive (CE) election through “one person, one vote” may be implemented starting from 2017. Our reply to the questions raised by Hon Mok is as follows.

(1) and (2) The NPCSC is the permanent body of the highest organ of state power. The Decision adopted by the NPCSC on August 31 is made in accordance with the Basic Law and the Interpretation by the Standing Committee of the National People’s Congress adopted on April 6, 2004 of Article 7 of Annex I and Article III of Annex II to the Basic Law (2004 Interpretation). It is a solemn and legally effective decision.

Pursuant to the 2004 Interpretation, the “Five-step” constitutional process must be followed in amending Annex I to the Basic Law regarding the method for selecting the CE. According to this constitutional process, the CE shall make a report to the NPCSC as regards whether there is a need to make an amendment to the method for selecting the CE; and the NPCSC shall, in accordance with the provision of Article 45 of the Basic Law, make a determination in the light of the actual situation in the Hong Kong Special Administrative Region (HKSAR) and in accordance with the principle of gradual and orderly progress. The Decision is the second step of the “Five-step” constitutional process.

The HKSAR is a special administrative region established by the State in accordance with Article 31 of the Constitution of the People’s Republic of China (Constitution). Article 31 of the Constitution stipulates that the systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in the light of specific conditions. Article 62(13) of the Constitution stipulates that the National People’s Congress exercises the function and power to decide on the establishment of special administrative regions and the systems to be instituted there. Through the enactment of the Basic Law, the National People’s Congress prescribes a unique system to be practiced in Hong Kong. Article 12 of the Basic Law provides that “[t]he Hong Kong Special Administrative Region shall be a local administrative region of the People’s Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People’s Government.” Article 15 provides that “[t]he 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.” Article 45 provides that “[t]he 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.” According to the “Five-step Process” laid down by Annex I to the Basic Law and the 2004 Interpretation, any amendment to Annex I to the Basic Law regarding the method for selecting the CE, after obtaining the endorsement of a two-thirds majority of all Members of the Legislative Council (LegCo) and the consent of the CE, requires the ultimate approval of the NPCSC. This shows that the Central Authorities have the constitutional powers and responsibilities to determine the systems to be implemented in the HKSAR, including the model of political structure for the HKSAR; in amending the method for selecting the CE, the Central Authorities have the ultimate powers, including in determining the timetable, model and design of the method for selecting the CE by universal suffrage.

As Mr Li Fei, Deputy Secretary-General of the NPCSC, explained at the briefing session on September 1, “the implementation of universal suffrage for CE election involves amendment to the relevant provisions in Annex I to the Basic Law. According to Annex I to the Basic Law and its relevant Interpretation, the power of the Central Authorities to determine the amendment to the method for selecting the CE is exercised by the NPCSC. The proposed amendment to the method for selecting the CE to be submitted to the NPCSC for approval in the future would be endorsed by a two-thirds majority of all the Members of the LegCo and should obtain the consent of the CE. At that stage, the NPCSC could only decide to approve or not approve the amendment, but could not make any amendment to the amendment proposal. Therefore, the NPCSC could only exercise its power on how to amend the method for selecting the CE in order to implement universal suffrage at the stage of the decision. This was an important reason for the NPCSC in its decision laying down provisions on certain core issues concerning the method for selecting the CE by universal suffrage.”

(3) The Decision of the NPCSC sets out a clear framework on the method for selecting the CE by universal suffrage. The Decision has been made strictly in accordance with the Basic Law and constitutional process, and is undisputedly legally effective. The HKSAR Government will launch the next round of public consultation on the method for selecting the CE by universal suffrage at an appropriate juncture. The HKSAR Government sincerely hopes that in the next stage, all sectors of the community would seize the opportunity and make full use of the room for discussion under the Basic Law and the Decision of the NPCSC, so as to seek common ground and forge consensus in a rational and pragmatic manner, in order to realise the goal of selecting the CE by universal suffrage through “one person, one vote” in 2017.
Ends/Wednesday, October 15, 2014
Issued at HKT 17:31

Office Of Hon. Charles Mok, Legislative Councillor (IT)