University of Hong Kong Law professor Albert Chen Hung-yee, who is also a member of the Basic Law Committee, has argued for “pocketing first” the government’s political reform package.
According to Chen, although the government proposal reserves to the nominating committee the sole right to nominate candidates to the chief executive election, it grants Hong Kong people the right to elect the chief executive from among the committee’s nominees.
This adds a new right to the list of fundamental human rights that Hong Kong people currently enjoy, he said.
It represents a step towards returning the power of the ballot and the right to govern to Hong Kong people and hence is a step towards democracy.
Chen said a refusal to accept the reform package would be tantamount to depriving Hong Kong people of an important fundamental human right.
His accusation was echoed by businessman Peter Woo Kwong-ching, who said blocking the proposal would be like “stripping away” a right that Hong Kong people “already possess”.
Chen’s accusation is serious but misplaced. His view is founded on an erroneous understanding of the relationship among the right to nominate, the right to elect and the right to be elected.
It appears that the professor sees the three rights as separate and independent with their interrelation being summational in nature, that is, taking the electoral right in a democracy as a mere summation of the three component yet independent rights.
For Chen, therefore, people can be granted the right to elect first, pending the granting of the two other rights at later stages.
The three rights, however, are far from being summational; they are interconnected.
One cannot deny the right to nominate and to be elected without also denying the right to elect at the same time. Either the three rights are open to people simultaneously or no rights are open.
Some rekindling of the fundamentals of democracy can help illuminate this.
Democracy means people’s equal right to participate in the decision-making of government. In a representative democracy, instead of participating directly in decision-making, people elect representatives that they favor to act on their behalf.
The right to govern is the essence while the right to elect representatives is only an institutional arrangement in lieu of the people engaging personally.
Thus, unless people are able to elect whoever they see fit to be their representatives, they cannot be said to be exercising their right to govern.
To be able to elect whoever one prefers, however, people need to be able in the first instance to nominate candidates whom they prefer for election.
If the people’s right to nominate is unreasonably infringed and their preferred candidates are not able to stand for election, then the electoral choices will simply not be theirs; the election results will be reflective primarily of the preferences of those who do the nomination.
Similarly, for voters to be able to elect whoever they support, the pool of prospective candidates should be as unrestricted as possible.
No-one should be barred from standing for election except for some limited and standard qualifications relating to, for example, age and length of residence.
In order for voters to be able to express their true preferences for which decision-makers they wish to elect, all citizens should have the right to enter an election under nomination procedures that are not unreasonably preventive.
To the extent that the pool of prospective candidates is restricted, people’s electoral choice is to that extent not theirs. The election results will only primarily reflect the preferences of those who impose specific restrictions.
The litmus test of the electoral right in a democracy is whether people can, through their votes, choose decision-makers in accordance with their own preferences.
In an election, if the right to nominate is confined to a subgroup while the right to be elected is restricted to those favored by this subgroup, then before the popular votes are even cast, the subgroup has in effect already decided who can win and who cannot win in the election.
If voters can only exercise their votes confined to the preferences of a subgroup that enforces unreasonable restrictions to stand rather than according to their own, then their right to elect is only a pseudo-right.
The government’s recent campaign for its political reform package exhorts: “You can vote to elect the CE. There’s no reason to take it away.”
However, as we have said, the right to nominate, elect and be elected cannot be considered as three separate or independent rights. They are three rights in one. The right to elect without the right to nominate and the right to be elected is no right at all, and has little meaning.
One is driven to ask the government what there is to be taken away in the first place! While it is obvious that the authorities are trying to camouflage their reform proposal as making substantive advancement for democracy, accepting the proposal by failing to see through the pretense would be a serious mistake.
This article appeared in the Hong Kong Economic Journal on June 2.
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