Thank you, Chairman and honourable members.
Let me begin by saying it's a real honour to be giving evidence today.
A quick word about my background. I'm sure many of you have already detected the North American accent. I'm sure some of the more perceptive of you will have detected the southwestern Ontario accent. So yes, I was raised, not born, in Canada. I went to law school there and qualified. My first job was with the Ministry of the Attorney General in the Crown Law Office-Criminal.
I came back to Hong Kong in 2001 and have been an academic at the university for the past 14 years. Although I teach criminal law in evidence, I do most of my research in Hong Kong—the legal system and the political system. I co-authored a book entitled Electing Hong Kong's Chief Executive.
In these next few minutes I want to focus on and talk about the political reform issue in the proper constitutional context. I think that's very important to appreciate because there are very significant differences from other constitutional regimes—Canada's or others'. I think it's very easy to make certain assumptions about our constitutional regime that may be wrong. So I want to try to highlight what those first principles are in our constitutional regime.
As Ms. Wright has mentioned already, the history of democracy in Hong Kong has been very slow and late, but I wanted to focus this time on the executive leader. Because, of course, before 1997 the executive leader was the governor and there was never any opportunity for Hong Kong people to have any kind of input on the selection of the governor. The governor was chosen by the Queen on the recommendation of her ministers, and, hence, when we come to 1997—the 1984 joint declaration and 1990 Basic Law—you see a major change in this respect because for the first time the idea that the Hong Kong people would have some say in the selection of the chief executive became a reality.
Now, it's important to look at the words of the joint declaration. It doesn't refer to universal suffrage, it does refer to the power of the central government to appoint the chief executive of Hong Kong on the basis of either elections or consultations done locally. Then when it talks about the legislature, it talks about it being constituted by elections, and that's it. It doesn't say anything else about what form or shape those elections will take.
Then we come to the Basic Law, which is our constitutional instrument, so that's six years after the joint declaration. It has 160 articles; it's a fairly long document. It implements the joint declaration and does many other things as well in fleshing out the details. Now, here is where we find the first references to universal suffrage, and in this case we're talking about article 45 for the chief executive.
The most important thing to keep in mind is the idea that however Hong Kong selects the chief executive, it's ultimately for the central government to appoint, and the central government has repeatedly said that's a substantive power, that it's not just a rubber stamp. That is a fundamental feature of our constitutional regime. It's not like Canada where people in provinces vote and elect a premier, and there's no confirmation that has to come from the federal government. Here, there is such a confirmation process.
You have to get the central government to appoint that person who has been selected through elections. I think that is a very important reality we're dealing with, because this is how Beijing looks at it: what if you select someone that we don't approve of or we don't trust? There's going to be a problem, so they're not going to appoint that person. Do it again.
That can't just go on forever. It creates instability, and if you look at the terms of the Basic Law, it promises stability, right? That's very important to the Chinese government. Frankly, it's important to anyone. Hence, that's how they are looking at the situation: “We want someone that you elect that we don't have to turn away. How can we ensure that?” So they focus their attention on the nomination process.
Before I come to the current debate, let's just look at the history of the selection of the chief executive. The Basic Law provides for a system of electing the chief executive through a committee. First it was known as a selection committee, consisting of 400 people. That was the committee that put in place the first chief executive. There was a mini-election amongst those 400 people. It's the so-called small circle election that's often criticized about our system.
That committee grew to 800 people next time around in 2002, but there was no election because no one ran against Mr. C.H. Tung. Again it highlighted the problems of that system, but there was a committee made up of 800 people that had a base of maybe about 200,000, so for the first time you had some public involvement in the choice of that person.
Then there was an opportunity to reform that and to make the committee bigger in 2005, but to do that you had to amend the Basic Law. The amendment formula involves a three-step process. You have to get two-thirds of the legislators, consent of the chief executive, and finally the approval of the central government.
In 2005 when the democrats were given a proposal to try to make that committee a bit bigger, a little bit more “democratic”, the democrats rejected it because they had that veto. That was their first sort of attempt to try to amend the Basic Law.
What was surprising was that people thought that was the end of democracy. What was surprising was that in December 2007 it was Beijing pretty much on their own, but probably with some impetus from the then chief executive Donald Tsang, Beijing in a decision said that they could have democracy of the chief executive in 2017. They also said that they had to do that first before the legislature was going to be democratic.
That takes us then to 2007, the first time we had an election. Then 2012 was when we had the second election. Before 2012 there was another opportunity to amend the Basic Law. Of course, circumstances were different because we now know that in 2017 we may have universal suffrage, so democrats were a bit more willing to compromise. Hence, the election committee was expanded to 1,200.
That takes us to now, because the August 31st decision is a decision that sets down three restrictions. It speaks to Beijing's aim to ensure that whoever ultimately is selected is someone who's not going to confront Beijing. They feel the way to do that is to have very a controlled process over nominations. That's where we come into the fundamental problems we see with society and society's expectation to have a much more democratic system, one that adheres to the International Covenant on Civil and Political Rights which, of course, has been implemented in Hong Kong through our bill of rights, and at the same time perhaps not fully understanding the dynamics of what Beijing feels is important when it comes to governance.
That's where we're at. Occupy Central happened and now we're at this, as I think Alan has already explained very clearly, very tragic situation. Both sides are not even talking, not even trying to explore ways in which you can have a more democratic system within the August 31 framework. I'm one of the scholars who have tried many times to propose different ways of maybe having a better balanced system that, on this first attempt, would certainly be an improvement to our existing system and would allow us to move forward. But unfortunately it doesn't look like the two sides have sufficient trust to achieve any kind of progress. That I think is quite unfortunate.
I'll just stop here.