Article 45 of the Basic Law clearly stipulates “nomination by a broadly representative nominating committee” in selecting candidates of Chief Executive (CE) elections.迷你倉旺角 But notions of “civil nomination” and “party nomination” are now being discussed by some opposition members in Hong Kong. It needs to be noted that there is no mention of how the “nominating committee” (NC) will be formed in Article 45 of the Basic Law.According to the decision of the Standing Committee of the National People’s Congress (NPCSC) in 2007, “the nominating committee may be formed with reference to the current provisions regarding the Election Committee in Annex I to the Hong Kong Basic Law”. This means that the NC, resembling the Election Committee, should be composed of representative members from various functional sectors, ruling out the possibility of nominations by individual citizens or political parties.Despite this, some prominent people in Hong Kong assert that the NPCSC’s decisions should not to be accepted as legally binding. They point to the second paragraph of Article 18 of the Basic Law, which stipulates that national laws should not be applied in Hong Kong except those listed in Annex III. As a result, a significant portion of the public believe that proposals of “civil nomination” and “party nomination” may be accepted to form the NC and that this is compatible with the NPCSC’s decision in 2007.I am hardly convinced by this argument. Its proponents have erred in understating the NPCSC’s powers, and have attempted to misguide the public. The NPCSC’s decision is part of the content of the Basic Law and should, without any doubt, have a binding effect in Hong Kong.First and foremost, the NPCSC’s decisions are considered national laws. Article 67 of the Constitution of the People’s Republic of China (PRC) confers the NPCSC with the power to enact and amend statutes, with the exception of those which should be enacted by the National People’s Congress (NPC) — the highest State organ. Decisions issued by the NPCSC, and the decision in 2007, have an equivalent standing as statutes which the NPCSC has enacted. They are, therefore, part of the national laws.Second, the NPCSC has the power to “add to or delete from the list of laws in Annex III” as stated in the third paragraph of Article 18 of the Basic Law. The NPCSC has to first consult the NPC Basic Law Committee and the HKSAR Government before amending Annex III, as a formality. There is, however, a substantive restriction requiring that the laws listed “shall be confined to those relating to dmini storagefense and foreign affairs as well as other matters outside the limits of the autonomy of the region as specified by this law”.Concerns might be raised as to whether the decision in 2007 satisfies this substantive limitation. It is clear the decision does not relate to defense or foreign affairs, but whether it is outside the limits of the autonomy of the HKSAR is a question demanding some analysis.The decision in 2007 concerns matters in relation to the universal suffrage of the CE and the Legislative Council of Hong Kong. These matters will unquestionably fall within the scope of the political structure of the Basic Law. Given that Hong Kong is a special administrative region in the PRC, the ultimate decision-making power is vested in the central authorities. The power to design and modify the political structure falls outside the limit of the autonomy of the HKSAR.Since the CE is held accountable to the central government, the roles of the latter in the election of the former should not be taken lightly. A number of articles of the Basic Law come into play: Article 45 of the Basic Law provides that the CE should be appointed by the central government. Article 48(8) states that the CE should implement the directives issued by the central government in respect of the relevant matters provided for in this law. Article 104 requires that the CE should swear to uphold the Basic Law and swear allegiance to the HKSAR of the PRC. Annex I of the Basic Law titled “method for the selection of the Chief Executive of the HKSAR” demands that amendments of this annex “shall be reported to the NPCSC for approval”. One can hardly suggest these are within the autonomy of the HKSAR.In conclusion, the NPCSC’s decision in 2007 satisfies the major requirement of Article 18 and can be listed in Annex III of the Basic Law. By adding the decision in 2007 to Annex III of the Basic Law, the NPCSC exercises its legitimate power as set out in the Basic Law. This move is sensible because it not only reminds the public of the constitutional and higher status of the NPCSC’s decisions, it also serves to stop unsound arguments being advanced by the opposition. Because of this it also helps the public consultation process.The author is a HK veteran commentator and professor at the Research Center of Hong Kong and Macao Basic Laws, Shenzhen University.The opinions expressed on this page do not necessarily reflect those of China Daily. Readers’ comments are welcome. Please send your e-mail to opinion@chinadailyhk.com. China Daily reserves the right to edit all letters.迷你倉
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