It was reported that when meeting Li Fei, deputy secretary-general of the National People's Congress Standing Committee (NPCSC), Bar Association Chairman Paul Shieh Wing-tai, asked him a rather immature question.

Shieh asked whether the majority threshold for the nomination of two or three candidates by the Nominating Committee (NC) might be considered an unreasonable restriction when viewed from the perspective of Article 25 of the International Covenant on Civil and Political Rights (ICCPR) 1966.

This was an unofficial discussion, but the question still appears to be naive. This is because the ICCPR makes no mention of how a national or regional leader should be nominated. If there had been such a provision, then any deviation from this requirement might amount to a contravention of the international covenant, or in other words an "unreasonable restriction".

But the ICCPR allows for variations of constitutional arrangement for all countries. Article 2(2) of the ICCPR states, "Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant."

It is clear that nations should try to follow the provisions of the covenant if these have not already been provided for by existing laws or other measures. The ICCPR, however, says nothing about a country that has already followed these provisions before it became a state party to the covenant. The Hong Kong SAR Basic Law was promulgated in 1990. The Basic Law provides the constitutional framework for administrating Hong Kong, the ICCPR does not. Article 25 of the ICCPR requires universal suffrage to be conferred on every citizen. But Article 26 of the Basic Law requires that voting rights be conferred on every permanent resident of the Hong Kong SAR.

Now, in regard to the nomination of candidates for the post of Chief Executive (CE) for election by universal suffrage as stated in Article 45, there is no similar provision in the ICCPR. So the best policy therefore will be to adhere to the Basic Law - without any amendments. Maintaining these provisions is unlikely to be regarded as "unreasonable restriction".

Article 45(2) of the Basic Law also provides guidelines for "the selection of the CE by universal suffrage upon nomination by a broadly representative Nominating Committee in accordance with democratic procedures". But the real meaning of this phrase is a matter of interpretation.

According to Article 158(1), "The power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress." There is nothing wrong with the NPCSC, which is vested with the power to make decisions under the Constitution and Annex I of the Basic Law, interpreting "democratic procedure". This is because "democratic procedure" can have more than one meaning.

Despite the fact that the number of potential CE candidates is not mentioned in the Basic Law, the NPCSC also has the power to decide whether there should be two to three candidates. Prior to submitting the draft decision to the NPCSC, Li Fei explained that this was to ensure genuine competition while avoiding complexity and saving costs by not having too many candidates. Secondly, it conforms to the previous practice for CE elections since 1997. I believe this decision cannot be challenged.

Even where there might be conflict (and I do not think there will be) between the present decision of the NPCSC and the ICCPR, the question of sovereignty will prevail. Article 103 of the United Nations Charter says, "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."

Interference in the domestic jurisdictions of any state is to be avoided as stipulated by Article 1(7) of the United Nations Charter.

Some may still argue by reference to Article 39(1) of the Basic Law that the provision of ICCPR, as applied to Hong Kong, should remain in force and be implemented through the city's laws. A similar wording can be found in the Sino-British Joint Declaration. But even if this provision were applicable then the issue regarding nomination could not be included. Even if it could be, it would be a matter of interpretation to be decided by the NPCSC and no one else.

Any criticism on the NPCSC's decision reminds me of the saying that silence is golden and empty vessels make most noise.

The author is a HK veteran commentator and professor at the Research Center of Hong Kong and Macao Basic Law, Shenzhen University.

(HK Edition 09/11/2014 page10)