Gladys Li: The Dog that didn't bark

My sister-in-law recently emailed me a photo of her dog. You can therefore immediately appreciate why dogs are on my mind. The email was not entirely successful because it was only possible to see a portion of Max (the dog) at any one time and only by scrolling was it possible to see another portion of him. I asked her whether Max might be dating a blonde since for the first time, I noticed on his shining dark russet fur, a small blonde patch.

As with photos, so with our political debate. A close-up is good from time to time because it enables you to see things which you might otherwise not have noticed. However, it is always necessary to step back to get the full picture.

On Monday, the Constitutional Development Task Force published an advertisement inviting us, the public, to give our views on the issues of principle and legislative process relating to constitutional development under the Basic Law as set out in the paper to the Legislative Council Panel on Constitutional Affairs. Why does this bring to mind the dog that didn't bark?

Before I need to bow deeply before the public or anyone else to express apologies, please let me make clear that I am not saying that the Task Force is the poodle of the Central People's Government. And it is obvious that the Task Force is not a poodle because nowhere in the paper or the advertisement is there any mention of a principle that patriotism is a prerequisite for people who rule Hong Kong let alone an important principle which must be upheld.

Go to close-up mode for a moment. Scour the Basic Law, scrutinise every word of it. Do you find any such important principle in the Basic Law? No, unless your copy is different from mine.

Now we can step back and look at the bigger picture. If it is such an important principle, how is it that it is not in the Basic Law? After all, the Preamble to the Basic Law makes it clear that the Basic Law is enacted by the National People's Congress "in order to ensure the implementation of the basic policies of the People's Republic of China regarding Hong Kong".

There is often a simple answer to a simple question. It is not in the Basic Law because it is not part of the basic policies of the People's Republic of China regarding Hong Kong. What is part of those basic policies is already set out in the Basic Law. The provisions of the Basic Law make clear who is qualified to vote and who is entitled to stand as a candidate for election.

Those same provisions make clear what the requirements are for a person to be the Chief Executive of the HKSAR. Not a whisper about patriotism; no doubt because in setting out the formal requirements, the NPC has considered long and hard what they should be.

Note for instance that the NPC has required that the person be a Chinese citizen, a permanent resident, having no right of abode in any foreign country and having ordinarily resided in Hong Kong for a continuous period of not less than 20 years. Any person fulfilling those qualifications is eligible to be Chief Executive.

If before 1997, a person sent his wife and family to live overseas, some might question the depth of that person's support for and faith in the PRC's assumption of sovereignty over the HKSAR. Others would dismiss it as a matter of total unimportance in deciding whether that person is suitable for the office of Chief Executive. Complete agreement on the subject of what makes a person suitable for the office is impossible to achieve and there is no need to attempt the impossible.

This is where the process of election comes in. When what is permitted by the Basic Law comes to pass and we can elect our Chief Executive, we may all have different views as to the suitability of the candidates who stand for election. We do not have to agree on that person's suitability; we do not even have to agree on the criteria to be applied. If we consider that patriotism is necessary and the candidate is in our view unpatriotic, we will exercise the right to vote against that candidate and for another candidate whom we consider patriotic. If we consider that in the past, the Chief Executive has not sufficiently spoken up for the autonomy of Hong Kong and we want such a Chief Executive, we will vote accordingly.

Our Chief Executive would no doubt score 100% in patriotism but did that make him suitable for appointment? Therefore let us put aside the discussion on patriotism and concentrate on the method for choosing the next Chief Executive. Oops, did I hear a dog bark?”

The author is a Barrister, Senior Counsel and a member of the Article 45 Concern Group.