The Basic Law On The Hong Kong SAR Chief Executive

Rumors abound that Hong Kong SAR Chief Executive Tung Chee-hwa has resigned, although nothing is confirmed at this time.  There were probably enough clear signs already.  For example, the next election is not until 2007, but why did the leading candidates begin their campaigning in earnest and get endorsements at the start of this year?  Even Americans do not campaign for their presidency more than two years ahead.

At this point, it is important to sit back and actually read what the Basic Law has to say about the situation.  First up, Article 52 says:

The Chief Executive of the Hong Kong Special Administrative Region must resign under any of the following circumstances:

( 1 ) When he or she loses the ability to discharge his or her duties as a result of serious illness or other reasons;

( 2 ) When, after the Legislative Council is dissolved because he or she twice refuses to sign a bill passed by it, the new Legislative Council again passes by a two-thirds majority of all the members the original bill in dispute, but he or she still refuses to sign it; and

( 3 ) When, after the Legislative Council is dissolved because it refuses to pass a budget or any other important bill, the new Legislative Council still refuses to pass the original bill in dispute.

Conditions (2) and (3) do not apply at present.  So the easiest way out is to cite 'health' reasons.  That is the prerogative of the individual.  The true reason may be something completely different (e.g. the desire to spend more time with the family, threats by the triads, a decision imposed by the political leaders of the central government, etc.), but that would call for speculation at this point.  Also, 'health' reasons do not have to be documented by a doctor's note (e.g. the patient has terminal cancer).  'Health' reasons could be as simple as mental exhaustion on a job where each and every of one's earnest efforts is always heaped with scorn and abuse and never rewarded.  Of course, there is a factual basis for such an assertion.  Regardless, the Chief Executive can resign if he/she so wishes.

Who is going to fill in that post?  The first part of Article 53 says:

If the Chief Executive of the Hong Kong Special Administrative Region is not able to discharge his or her duties for a short period, such duties shall temporarily be assumed by the Administrative Secretary, Financial Secretary or Secretary of Justice in this order of precedence.

So the temporary caretaker will be Administrative Secretary Donald Tsang Yam-kuen, unless he declines to accept.  Tsang is the leading candidate in this undeclared campaign season so far, along with Financial Secretary Henry Tang.  How long can Tsang be there?  The second part of Article 53 says:

In the event that the office of Chief Executive becomes vacant, a new Chief Executive shall be selected within six months in accordance with the provisions of Article 45 of this Law. During the period of vacancy, his or her duties shall be assumed according to the provisions of the preceding paragraph.

So Tsang will be in that temporary position for no more than 6 months.  How will the election of the new Chief Executive be done?  Article 45 says:

The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People's Government.

The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. 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.

The specific method for selecting the Chief Executive is prescribed in Annex I: "Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region".

Annex I says:

1. The Chief Executive shall be elected by a broadly representative Election Committee in accordance with this Law and appointed by the Central People's Government.

2. The Election Committee shall be composed of 800 members from the following sectors:

Industrial, commercial and financial sectors: 200

The professions: 200

Labour, social services, religious and other sectors: 200

Members of the Legislative Council, representatives of district-based organizations, Hong Kong deputies to the National People's Congress, and representatives of Hong Kong members of the National Committee of the Chinese People's Political Consultative Conference: 200

The term of office of the Election Committee shall be five years.

3. The delimitation of the various sectors, the organizations in each sector eligible to return Election Committee members and the number of such members returned by each of these organizations shall be prescribed by an electoral law enacted by the Hong Kong Special Administrative Region in accordance with the principles of democracy and openness.

Corporate bodies in various sectors shall, on their own, elect members to the Election Committee, in accordance with the number of seats allocated and the election method as prescribed by the electoral law.

Members of the Election Committee shall vote in their individual capacities.

4. Candidates for the office of Chief Executive may be nominated jointly by not less than 100 members of the Election Committee. Each member may nominate only one candidate.

5. The Election Committee shall, on the basis of the list of nominees, elect the Chief Executive designate by secret ballot on a one-person-one-vote basis. The specific election method shall be prescribed by the electoral law.

The current Election Committee is due to be dissolved on July 13, 2005 and a new Election Committee is to be formed at that point.  If Tung is really resigning now, the timing of the election will be important with respect to whether the old or new Election Committee shall be in place.  The Chief Executive Election Ordinance says the election shall be held no earlier than 120 days (or 4 months), so there will be a window of opportunity of a week or so in which the current Election Committee can still vote.  Of course, in this political climate, someone will file a legal challenge to stop it.

Finally, here is the kicker from Article 46:

The term of office of the Chief Executive of the Hong Kong Special Administrative Region shall be five years. He or she may serve for not more than two consecutive terms.

Tung Chee-hwa was re-elected in 2002 and was due to leave in 2007.  Article 46 does not mention anything that a replacement Chief Executive can only serve out the remaining term of his/her predecessor.  So my literal interpretation of Article is that whoever gets elected will stay a full five years.  A different interpretation is that Article 46 applies only to a normally elected Chief Executive, and not to a new Chief Executive elected as a replacement.  Under this other interpretation, the new Chief Executive will stay until 2007.

Last year, the Standing Committee of the National People's Congress had decreed that there will be no direct elections for the Chief Executive in 2007 and the Legislative Council in 2008.  Pending clarification, this means that there will be no direct election for the Chief Executive in 2010, so that the next open date is 2015.  Alternately, it is also possible that the NPC may just grant direct election in 2010 instead of 2012 (conditioned on 'good' behavior, of course).

According to Carrie Chan and Cannix Yau in The Standard, the National People's Congress Standing Committee will hold a special meeting and is expected to rule that Tung's successor will serve until June 30, 2007.  This claim is unsourced.  Who doesn't like it?  "This approach runs contrary to the opinion of many pro-Beijing politicians who want Tung's successor to serve a new term of five years to save the trouble of tinkering with the Basic Law."  Who are these pro-Beijing politicians?  They are not named here.

Elsewhere in Ming Pao, names are being dropped left and right on this issue.  Pro-Beijing DAB chairman Ma Lik who was on the consultative committee for the Basic Law, said that the term seems to be five years as stated in the Basic Law.  However, Ma Lik emphasized that this is not the way it is done in mainland China, where a replacement official will only serve out the remaining term of the precedessor.  In SCMP: Executive Councillor Tsang Yok-sing, of the Democratic Alliance for Betterment of Hong Kong, said the Basic Law was national legislation and should be interpreted in light of mainland practice, where the length of any term of public office is not changed by the departure of an office bearer.  "Since no local legislation should contravene the Basic Law, I believe it should be interpreted that way," Mr Tsang said. Politically, the DAB does not like the Administrative Secretary Donald Tsang who was considered too close to the British colonial government and would not like to see him assume the post for five full years.

Meanwhile, pro-Beijing Liberal Party chairman James Tien also believes that since the Basic Law is unclear, the replacement should only complete the remaining term.  Politically, the Liberal Party prefers Financial Secretary Henry Tang for the position of Chief Executive and would not like to see Donald Tsang in there for five years.

Thus, the two major pro-Beijing political parties want to see a new election in 2007, for different political reasons.  This contradicts the assertion in the The Standard unless there are other pro-Beijing politicians.

Albert Ho of the Democratic Party and Margaret Ng of the Article 45 Concern Group believe that the term of the new Chief Executive should be five years.  Margaret Ng, who helped to draft the Chief Executive Election Ordinance, saw that the Basic Law says clearly that the term of the Chief Executive is five years under any circumstances.  Politically, it is seemingly hopeless to keep fighting for direct elections in 2007/2008 after the pronouncement by the National People's Congress last year.  Thus, the Chief Executive elected in 2007 will get to stay until 2012.  But if a Chief Executive is elected in 2005 and serves until 2010, then it is possible to have a direct election in 2010 ahead of schedule depending on what the NPC says.  For the same scenario, SCMP says the exact opposite: "The road to democracy is likely to be set back by up to three years if Tung Chee-hwa resigns, with members of the Basic Law Committee saying his successor would be required to serve until 2010."  Of course, they would have to assume a direct election can occur in 2007.

Basic Law drafting committee member, Raymond Woo, said "If the public reaches a consensus at two years, then just make it two years. I don't think it will be a big deal for it to be two years or five."  For most people, there is no perceptible material difference due to the lack of an alternate candidate who is superior to Donald Tsang.  No one is going to be able to get on radio and mobilize half a million people to march to protect their freedom.  If anything, anyone who attempts to ask for a judicial review is likely to suffer some kind of blowback for being disruptive and obstructive.

• Phase 1:  For more than seven years, Tung Chee-hwa was the subject of much scorn and abuse.  He was nicknamed The Old Fool because he did not know enough to quit his job.  Everything that he did was wrong and contrary to the interests of the people, so it was said.
   
• Phase 2:  Now there are signs that Tung Chee-hwa may just resign.  Instead of being glad that he is out as wished for so long, people are upset that he is leaving.  It turns out that he can only leave under the right circumstances (such as terminal cancer), and it must not be due to coercion by the central government.  If pressure was applied on Tung, he must stay, even if everything that he will do for the remaining two plus years of his term will continue to be wrong and contrary to the interests of the people.
   
  How did this come about for a bunch of so-called democrats?  Look at their ranks.  The leaders are barristers who make hundreds of thousands of dollars a day for court appearances.  Of course, the rule of the law overrides the citizens' interests for them.
   
  There is another school of thought that admires the central government for a brilliant move.  A rumor was floated about the resignation of Tung, and this led to a debate over the term of the replacement.  The pan-democratic camp was trapped into advocating a full five-year term, not that the central government really cared one way or the way.  If now the central government announces that it will be a five-year term, then the pan-democratic camp has no choice but to applaud that decision -- absolutely trapped with nowhere else to go.
   
• Phase 3:  Someday, Tung Chee-hwa may hold a press conference and explain why he is resigning (assuming that he is actually resigning).  The Sing Tao commentator said that based upon the track record, it does not matter what Tung says because people will automatically say that he is lying and continue to adhere to their own theories.  They will continue to demand that he admit to the "truth" (namely, their personal theory).  Such is political discourse these days.

Here is something along those lines in SCMP:

Former Bar Association chairwoman and constitutional law expert Gladys Li said: "He can't just step down if the central government feels like asking him to step down.  It certainly does not seem to me that the chief executive is suffering from a serious illness which prevents him from his duties, especially since he has been fairly laid-back in the past year or so.  If it is for the 'other reason', if you're going to invoke the article, you still have to articulate the reason and show that it makes it impossible for you to discharge your duties.  Supposing a future chief executive makes some kind of decision such as how Article 23 is to be legislated and implemented and the central government does not like it - will he or she then be forced to resign for 'other reasons'?"

Let me propose a speech for Tung Chee-hwa: "I am sixty-seven years old now.  For the past seven years, I have tried to do my best for Hong Kong.  But it seems that no matter what I do, people are never happy and they call me all sorts of foul names.  Recently, I realize that I don't like waking up in the morning because I was going to face yet another day of abuse and scorn at work.  And I am sure that you also would not like to have people with black coffins following you everywhere.  So I am resigning in order to go back into private life, where I can enjoy myself with my family for what remains of my life.  Is that so hard for you people to understand this?" (see Tom Plate too).

And just as I predicted, Dennis Ng reports in The Standard on March 14, 2005:

On RTHK's Letter to Hong Kong, social welfare sector representative Fernando Cheung said the central government was clearly visible behind the scenes orchestrating Tung's resignation last Thursday.  He said while he felt the public welcomed Tung's departure they had mixed feelings about how it was done.  "The problem primarily lies with the apparent high handedness of the central government which appeared to be manipulating the whole fiasco,'' he said.

...

He said Tung should explain publicly why he had chosen this time to step down and why he did not quit following anti-government protests of July 2003 when 500,000 people took to the streets or other crises that followed.  Cheung said Tung should appear before the Legislative Council as soon as possible to answer questions on his departure.

Fernando Cheung is dumber than (something or the other).  Tung Chee-hwa has publicly stated that his doctor has warned him that he must change his lifestyle.  Tung had to take painkillers for the annual speech because he cannot stand long on his feet.  Do you really need to see him dead?  You can ask Tung the same question over and over again, and it will always be the same answer (namely, his feet hurt).  You will never get to the bottom of it this way.  Get it?  Stop wasting everybody's time!  This is only going to make the whole world realize that you are a dumb (something or the other).

My disappointment with Tung Chee-hwa is less about incompetence and obedience to the central government.  That happens.  But there is no reason why the Chief Executive should be a wimp in the face of attacks.  Perhaps Tung believes that stoic silence is the best response in the face of withering attacks.  But I think it is a serious mistake because it merely encourages the worse kind of one-sided, unfair attacks.  While I don't want Richard Nixon to be there, I do expect a more active and aggressive defense.

So far, I like Donald Tsang only because he will not be a wimp.  My favorite recent story is about how he encountered some 'democratic' legislators and he made the observation that they ought to be happy to have gotten rid of Tung Chee-hwa.  The legislators feigned shock and claimed that they were never against Tung.  Tsang snarled, opened up his briefcase and took out a document.  He said that this was the record of the Legislative Council vote in early 2003 on the motion to ask Tung Chee-hwa to resign, and nineteen 'democratic' legislators voted 'yea.'  It goes without say that the legislators were speechless.  Yes, Donald Tsang will fight back, and he carries an enemies' list in his briefcase!

As for the other attributes of Donald Tsang, I am less than confident.  The handling of the Cyberport and West Kowloon Cultural projects certainly leave a lot to be desired, and that is a huge understatement.  I think Donald Tsang has a lot more to learn on triangulation, obfuscation and all that.

Fine, but who is going to be stupid enough to become their candidate.  There are three schools of thought:

• In the ideal scenario, the people's choice is former Administrative Secretary Anson Chan, a much beloved figure.  But if Anson Chan has any political instinct, she would know that it would be the kiss of death to be endorsed as the pan-democratic candidate.  According to the art of triangulation, she can take their vote for granted because the alternatives are too appalling.  What she needs is another huge voting bloc from elsewhere to support her, and then she can act as if she does not know any pro-democracy proponents because she knows full well that they have no choice.  If Anson Chan is going to enter into the arena, it will be on some other basis.
   
• According to the most recent Hong Kong Research Association, the most popular Legislative Counilor is Audrey Eu, the barrister who represents the Hong Kong District.  Such being the case, she would be the most popular choice from their own ranks.  She will have to evaluate whether the investment of her time is worthy in a quest that cannot even said to be quixotic.  So far, she seems to be unenthusiastic, and understandably so.
   
  If Audrey Eu enters the election, there needs to be an objective assessment about her qualifications in becoming the Chief Executive.  She is a barrister by profession.  Now, the first question about any potential Chief Executive will have to be, "How does she get along with the central government of China?"  This is a realistic question, because Hong Kong is doomed if the Chief Executive is at wars with the central government all the time.  You just cannot get any business done while a Chief Executive is obsessed with the vindication of 6/4 or the end of one-party rule in China.  You just cannot ignore the 'uncles.'  To give one example, more than 400,000 solo tourists came to Hong Kong from China to spend HK$6,000+ each.  The 'uncles' only have to say Hong Kong is politically unstable and dangerous to turn off the tourist flow, and that would cost tens of thousands of jobs in Hong Kong.  There is nothing much that can be done in reprisal without cutting your own nose off.
   
  The next question about any potential Chief Executive will have to be, "How much does she know about how this massive government operates?"  This is another realistic question.  Anson Chan knows how this government operates because she was the Administrative Secretary, but Audrey Eu does not.  It is these two questions that made Tung Chee-hwa and Donald Tsang the obvious candidates for that position in their times.  So how does Audrey Eu overcome these two major question marks?
   
  In The Sun (3/14/2005), it was reported that the principal objector to Audrey Eu's entry into the election is ... her husband!  An informed source is quoted as saying: "Even when she entered into the Legislative Council election, she had to ask for her husband's opinion.  Her husband does not want her to compete for the Chief Executive position.  But if she has to resign as Legislative Councilor first, that might be fine with her husband!"  The Sun also reports that Audrey Eu does not want to ruin any relationship with the central government.   
   
  These are not just personal questions for Audrey Eu, but they must apply to any future candidates from the pan-democratic camp.  Consider the case of the Lee Wing-tat, the chairman of the largest party, the Democratic Party.  Recently, Lee was reported to have tried to obtain an early release for district councilor Alex Ho from a Chinese prison.  Who did Lee call?  Two former Hong Kong Legislative Councilors and the chairman of the pro-Beijing DAB party in Hong Kong!  He does not know a soul in China.  As Chief Executive of the Hong Kong SAR, how would he ever get along with his counterparts in China?  I am sorry, but you cannot pretend that you can have a direct election and then run off on your own while ignoring the central government.  At this time, they own the leverage (in economic, political and military terms) and you don't.  If a democrat ever wants to aspire to to become the Chief Executive, he/she had better be prepared to answer those two big questions.  They cannot say that they don't have a single name in China in their rolodex and that they will just figure out the local government once they get elected.
   
  So far, the only reason that 07/08 direct elections had any residual appeal is the idea that we could have had Anson Chan as the Chief Executive instead of Tung Chee-hwa for the first two terms.  That is nostalgia, but reality is that the next great democratic hope is nowhere in sight.
   
• In the absence of any volunteers, Albert Cheng has offered himself as the Chief Executive candidate of the democrats.  This can only be described as an unmitigated disaster to have this highly detested person as the face of democracy.  This is not the worst thing that can happen, because they could even have proposed "Long Hair" Leung Kwok-hung.  The same two question must be asked: "How does he get along with central government of government."  Hmmm.  Not at all.  "How much does he know about how this government works?"  Hmmm.  He only seems to know that it doesn't.
   
  What do people remember most about Albert Cheng?  First, he was the self-appointed Chief Executive during the SARS crisis as a radio talk show host, for being able to criticise everything and anything that was not done right after the fact.  Second, he was identified as the 'black hand' behind stopping the Link REIT public offering.  In a comment, Simon is curious about how Albert Cheng would have handled himself in those two matters if he were Chief Executive.  I can speculate, but that would indeed be speculative (but I will say that it was not good at all; for example, will the leaders of Guangdong province feel obliged to tell Cheng anything about the true situation about SARS? If anything, they would be hoping that Cheng would be completely ill-informed and unprepared, and be a miserable failure; and Cheng would also react badly with any kind of criticisms from the public.).  So are you willing to get him into office just so he can confirm or deny those speculations because there are genuine consequences for everyone?

A recent public opinion poll of Hong Kong residents showed the following preferences: Donald Tsang 44%; Anson Chan 6%; Henry Tang 2%; no opinion 48%.  Strategically, putting forth a candidate may appear to challenge the 'small circle' nature of the current system.  But it is a serious blow if democracy is branded with the face of an unqualified or even despised person.