【Article】Seize the moment

SCMP 2014-04-11
A15 | INSIGHT | Dennis Kwok

Seize the moment – Don’t waste this chance for real dialogue on political reform in Shanghai

SCMP link: http://www.scmp.com/comment/article/1473309/dont-waste-chance-real-dialogue-political-reform-shanghai

【Dennis Kwok says democratic lawmakers heading to Shanghai must ensure that, unlike in 2005, they don’t waste the opportunity to begin genuine dialogue on political reform with mainland officials】

In 2005, the chief executive and members of the Legislative Council went on a two-day tour of the Pearl River Delta, marking the very first time all legislators in Hong Kong were invited to visit the mainland.

It was also at a time when Hong Kong was engaged in discussions on constitutional reform and the possibility of introducing universal suffrage in the 2007 chief executive and 2008 Legco elections.

Almost a decade on, we find ourselves again in the midst of a consultation for constitutional reform and universal suffrage, so it comes as no surprise that such an invitation would come from the central government.

What are the lessons we must learn from the 2005 visit?

Any opportunity to communicate directly with mainland officials should be seized at once by the democrats. However, back in 2005, the pan-democrats simply accepted the invitation in the hope that the trip would establish a good foundation of mutual trust, on top of which further communications or even a consensus could be built. It did not happen. It was wasted time, and a wasted opportunity for both sides.

The failure to achieve anything close to that in the end, however, is a lesson not to be forgotten. Simply visiting the mainland, with no follow-up and no time for serious dialogue and discussion on matters close to the hearts of the Hong Kong people, is a wasted opportunity and does nobody any good.

During this upcoming Shanghai visit, we must avoid wasting any time on sightseeing or mere political gestures. Whether it’s the best of times or the worst of times, it’s the only time we’ve got to begin a constructive dialogue by getting to the core of the issue as soon as possible. We must ensure the attendance of the relevant officials and secure sufficient time for open and frank discussions.

An official mechanism should be developed for future dialogue to continue, so as to ensure that any communication channel developed through this visit is not a one-off but a continuing one. It is only through this mechanism that a continuing and open dialogue with mainland officials on the important issue of constitutional reform could be achieved.

Otherwise, the two sides would no doubt swiftly retreat into their respective entrenchments, and the stalemate that we have seen in the past decade would continue.

In light of the significance of the upcoming Shanghai delegation and the important emphasis on the Basic Law, all 30 members of the Election Committee legal subsector, including myself, have co-written a letter to be presented to Wang Guangya , Li Fei and other relevant central government officials, expressing the united stance of the Hong Kong legal profession.

The letter purposely steers clear from any specific proposals but instead sets out five principles derived from the Basic Law, with which we believe any electoral proposal for the 2017 chief executive election must conform.

Article 45 of the Basic Law stipulates that the method for selecting the chief executive shall be specified in the light of the actual situation in Hong Kong and in accordance with the principle of gradual and orderly progress, and that 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.

Under this constitutional structure, we believe the method for selecting the chief executive in 2017 should accord with the following cardinal principles:

  • The election should be by universal suffrage, comprising a genuine democratic election capable of reflecting the will of the Hong Kong people;
  • The nominating committee should be broadly representative. That is to say, it must be capable of reflecting the will of the Hong Kong people;
  • The method of nomination should accord with democratic procedures. Its sole purpose must be to facilitate a genuine democratic election, giving the Hong Kong people a real choice, and be capable of reflecting the actual situation in Hong Kong and the will of the people;
  • There should be no unreasonable restrictions on any individual’s right to stand for election, as enshrined in Article 26 of the Basic Law and the International Covenant on Civil and Political Rights (as entrenched in Article 39 of the Basic Law); and
  • In line with the principle of gradual and orderly progress, the nomination threshold should not, in any event, be higher and/or more difficult to attain than the threshold used in the 2012 chief executive election.

We expect any proposal for the 2017 election to be in strict accordance with these principles. Only such proposals could fulfil the relevant legal requirements in the Basic Law and the democratic aspirations of the Hong Kong people.


【Article】By popular demand

SCMP link:

SCMP 2013-12-14
A17 | INSIGHT | Dennis Kwok

By popular demand-Screening out popular candidates does not accord with Basic Law intent

【Dennis Kwok looks back at how Basic Law drafters arrived at the wording of Article 45 and says their intent was never to bar candidates with public support from the chief executive election】

Last month, Chief Secretary Carrie Lam Cheng Yuet-ngor invited Li Fei , the Basic Law Committee chairman, to visit Hong Kong, ostensibly to improve our legal understanding of the relevant Basic Law provisions.

Article 45 of the Basic Law provides for the method for selecting our chief executive “by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures”. The term “democratic procedures” has a decisive impact on whether the 2017 election will adopt universal suffrage in its truly democratic form. What exactly did the Basic Law drafters mean by this term? Continue reading “【Article】By popular demand”

【Article】Open Skies – Argument against budget airlines won’t fly in Hong Kong

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SCMP 2013-10-15
A15 | INSIGHT | Dennis Kwok

Open Skies – Argument against budget airlines won’t fly in Hong Kong

【Dennis Kwok says budget airlines must be part of the growth in our aviation industry, as travellers will benefit from greater competition】

Affordable air travel is made possible by low-cost carriers. Yet, they have so far failed to establish themselves in Hong Kong. While low-cost carriers account for 65 per cent of all travel in the Philippines and 61 per cent in Thailand, that figure is less than 10 per cent in mainland China, Taiwan and Hong Kong.

Jetstar Hong Kong has applied to the Air Transport Licensing Authority to operate out of Hong Kong. This is a potential game changer that could allow more Hongkongers to fly, and to further open up the civil aviation industry to more competition.

Hong Kong’s largest conventional airline, Cathay Pacific, and its subsidiary, Dragonair, have voiced their opposition to Jetstar’s application, claiming it would contravene Article 134 of the Basic Law which states that the government will only issue licences to airlines which are incorporated, and have their principal place of business, in Hong Kong. Continue reading “【Article】Open Skies – Argument against budget airlines won’t fly in Hong Kong”

【Article】Overworked justice system at risk

SCMP link:

SCMP 2013-09-13
A17 | INSIGHT | Dennis Kwok

Overworked justice system at risk

【Dennis Kwok says overworked judges and a backlog of cases are affecting the quality of justice in Hong Kong, prompting the need for additional resources and support for the judiciary】

Hong Kong’s rule of law depends on the quality of our independent judiciary. It is the key contributor to the city’s competitiveness and success under “one country, two systems”. The lack of adequate resources and support, coupled with the recent spate of judicial vacancies and imminent retirements, has threatened the judiciary, access to justice and the state of our rule of law.

The average waiting time for cases, from filing to judicial hearing, has increased significantly in recent years. Civil matters in the Court of Appeal now wait an average of 131 days, an increase of 54 per cent since 2008 and in excess of the judiciary’s 90-day target. The criminal cases list has an average waiting time of 180 days, exceeding the judiciary’s 120-day target and an increase of 61 per cent since 2008. The civil cases list has an average waiting time of 244 days, exceeding the judiciary’s 180-day target and an increase of 68 per cent since 2008.

Continue reading “【Article】Overworked justice system at risk”

【Article】Snowden right to put his trust in Hong Kong’s fair and open courts

SCMP 2013-06-14
A17 | INSIGHT | Dennis Kwok

Snowden right to put his trust in Hong Kong’s fair and open courts

【Dennis Kwok says Edward Snowden’s trust in the independence of Hong Kong courts is well founded, given that any extradition to the US must satisfy a judicial procedure, whatever the politics】

Hong Kong has been thrust into the international spotlight after it was revealed that American whistle-blower Edward Snowden sought refuge in our city while he exposed the magnitude of America’s secretive state surveillance programme.

Snowden has reiterated his intention to stay and fight any extradition to the US, saying: “I have had many opportunities to flee Hong Kong, but I would rather stay and fight the US government in the courts, because I have faith in Hong Kong’s rule of law.”

Continue reading “【Article】Snowden right to put his trust in Hong Kong’s fair and open courts”

【Article】To protect China’s environment, make its courts independent

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SCMP 2013-02-09
INSIGHT | Dennis Kwok

【Dennis Kwok says environment can’t improve if laws are not enforced】

I was recently invited to give a lecture at the Wuhan University School of Law on the topic of environmental protection laws and the judicial system in Hong Kong. On a cold morning, I took an early train from Shenzhen to Wuhan on the high-speed rail line. Looking out of the window, I saw the scenery submerged in a grey haze, which deepened as we travelled north.

It turned out that the air pollution level in northern China that weekend broke a few records, with Beijing recording some of its highest readings ever.

In the 1980s, the central government introduced a series of laws to protect and improve the ecological and living environment. Yet, more than two decades after the laws to curb air, sea and farmland pollution were enacted, human activities continue to damage the environment on a daily basis. How is it that these laws are no more than paper tigers ignored by local officials? Continue reading “【Article】To protect China’s environment, make its courts independent”

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