19 October 2018
In this 2012 file picture, election committee workers empty ballot boxes on a table at the start of vote counting for the chief executive election. Photo:  Bloomberg
In this 2012 file picture, election committee workers empty ballot boxes on a table at the start of vote counting for the chief executive election. Photo: Bloomberg

Here’s why ‘pocket it first’ is unconstitutional

To put the so-called “pocket it first” proposal to the vote in order to create “mainstream” opinion and pressure pan-democrats into supporting the idea violates the most basic principle of the Basic Law.

Under Hong Kong’s mini constitution, its five million citizens over the age of 18 have the right to vote or stand for election.

They can give up that right of their own accord but no one can make them do so.

The “pocket it first” proposal amounts to depriving Hong Kong people the right to vote for their chosen candidates and the right to be freely voted on, contrary to Article 26 of the Basic Law which guarantees these rights.

What the proposal does is limit voters’ choice among candidates and prevent people from freely running for public office.

One important test of a democratic election is whether all voters are equal.

Under “pocket it first”, a handful of voters are given the power to nominate candidates while the vast majority are excluded from the nomination process.

It is obvious that such a proposal is undemocratic because in this case, voters are not equal.

How can an election be called equal and democratic if some voters enjoy more rights than others?

In fact, it is not difficult to achieve equality in the chief executive election.

The key is to give the five million voters a say in who becomes an official candidate for chief executive.

The most direct way is to introduce civil nomination, so that those with the highest popular support can become candidates.

Another is to allow public representatives to join the nomination committee, or at least allow civilians to recommend election candidates.

All these are aimed at getting the electorate involved as much as possible in the process of deciding who will run for chief executive.

Article 45 of the Basic Law stipulates that 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”.

While “universal suffrage” refers to “one person one vote”, a “broadly representative nominating committee” suggests that participation of the general public on the committee is essential.

If implemented properly and faithfully, Article 45 would be an effective instrument in guaranteeing equality in the chief executive election.

The right to vote is in essence the right to make choices freely.

The 18th century German philosopher Immanuel Kant argued that being able to vote is the only natural right of human beings.

People are entitled to the right to choose freely, regardless of race, gender, religion and so forth. Among those things they can choose freely is their political leader, he wrote.

And in any democratic society, the right to choose freely among an unlimited range of candidates in any election is a basic human right.

However, under “pocket it first”, the vast majority of voters, about 4.75 million, can only choose among the candidates pre-determined by the other 250,000 voters.

It doesn’t take an expert to figure out that this is against the most basic human right.

The right to stand for election is a positive/statutory right, according to Kant, and has to be established through a legislative process.

Any adult with a valid citizenship should be allowed to run for public office freely.

Unfortunately, under the proposal, only those handpicked by Beijing can run.

Recently, the government and the pro-establishment camp have claimed that there is a swing in public opinion in favor of  the proposal.

Nevertheless, it doesn’t matter whether it is true or not. Any natural human right, like the right to choose your own leader or run for public office, is inalienable.

Even if 95 percent of the population agree to the proposal, they have no right to snatch the rights of the remaining 5 percent.

In any civilized society, human rights are not something you vote on. Under no circumstances can the majority vote to take away the rights of the minority. That includes election rights.

If pan-democratic lawmakers vote against “pocket it first” as they have claimed, the fact that the proposal is against basic human rights and the Basic Law should be more than enough to justify their action.

It might be true that politics is about finding common ground, but the fact is, no one should do so at the expense of others.

This article appeared in the Hong Kong Economic Journal on Mar 9.

Translation by Alan Lee

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Hong Kong Economic Journal columnist

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