Referendums have no validity in Hong Kong
Updated: 2014-07-04 05:21
By Zhou Bajun(HK Edition)
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The so-called popular vote held by the illegal "Occupy Central" movement on June 20-29 is now consigned to history. But the debate over its legality continues, particularly considering the opposition camp's obsession with the word "referendum". Chief Executive (CE) Leung Chun-ying said on June 24 that the participants in the poll did not break any laws. However, the central government authorities said the poll lacked statutory grounds and was invalid. I agree with the central government. Here is why:
Firstly, what the vote intended to achieve constitutes a breach of the Basic Law. The three proposed methods on the ballot for nominating CE election candidates all included "civil nomination", which is ruled out under the Basic Law. This means it has no constitutional basis. The Basic Law states firmly in Article 45 that CE election candidates should be selected by a Nominating Committee. However, the "Occupy Central" poll was designed to turn the Nominating Committee into a rubber stamp. This makes the vote illegal by its very intentions.
Secondly, but most importantly in my opinion, the organizers of the vote clearly preferred to call it a "referendum". The opposition camp tried hard to inflate the vote count with the dubious rationale that the more votes it received; the more it would resemble a referendum. The result of this obvious vote-rigging exercise was nearly 800,000 ballots on multiple and unprotected platforms.
In a representative democracy, a "referendum" is a political exercise allowed within a constitutional framework. The reality is neither the Constitution of the People's Republic of China nor the Basic Law of the Hong Kong SAR contains any reference to a "referendum". By calling the poll a "referendum" on the SAR's constitutional development the opposition camp has put itself above the Constitution and the Basic Law.
Hong Kong does not yet have much legislation regarding political parties. All political organizations are registered as "corporations" or "companies". According to the common law, private institutions are eligible to do anything allowed by existing laws. The opposition insists the vote was a legitimate "referendum" because the Basic Law and local statutes do not prohibit any private corporation or company from initiating one. However, the common law also states that if something like this happens more than once it may necessitate legislation to make it official.
We should remember the "radical opposition" concocted the first "referendum" in spring 2010 in the name of universal suffrage. They did it by forcing a by-election with the resignation of five LegCo members from the Civic Party and League of Social Democrats. Then chief executive (CE) Donald Tsang conceded that the SAR government was obliged to hold a by-election according to the Election Ordinance. Ironically, by doing so, the opposition also confirmed it does not recognize the constitutional status of Hong Kong - thus rendering the "referendum" unconstitutional.
Shortly after that, in February 2012, the opposition camp agreed on a sole candidate to run for the CE office under a scheme that would include a "popular vote". Although its official name did not include the word "referendum", it set a precedent for future acts of the same nature. This led to the latest "popular vote" which the opposition calls the "Occupy Central referendum".
The opposition has twice misappropriated the term "referendum" to impose its will on the SAR's constitutional development. If no decisive action is taken to stop such farcical conduct, many at home and abroad may feel the "referendum" has some legitimacy in Hong Kong. This is despite it having no constitutional basis or statutory grounds.
Some have downplayed this by insisting the poll was simply a way to collect public opinion on a particular issue. They have apparently ignored the fact that the vote was nothing like a regular opinion poll in terms of methodology or its intent to force people to accept a "referendum". The problem is they forgot, or did not know, that Hong Kong has no constitutional authority to call a referendum on any matter or to legalize one. Only a sovereign entity can do this. Hong Kong is not a sovereign entity. Hong Kong society enjoys many freedoms protected by law. But a referendum as a political exercise is not one of them.
There is a well-known saying that: "A week is a long time in politics". Hong Kong was even more starkly polarized, politically, during the 10-days of the poll its organizers called a "referendum". It is highly unlikely all the voters knew the political implications when they cast their ballots - whether these were physical or digital. Moreover, the deteriorating political situation in Hong Kong is not giving the SAR government much time to decide its next course of action. The integrity of the Basic Law and "One Country, Two Systems" policy are on the line.
The author is a veteran current affairs commentator.
(HK Edition 07/04/2014 page9)