After a massive turnout in the July 1 march against the so-called "evil bill" and uncertainty over whether some pro-establishment law-makers would support it, the administration decided on July 4 to defer a vote on a bill to scrap by-elections in favor of a two-month consultation.

This move was described by the Hong Kong media as a U-turn. To prevent a recurrence of the unnecessary setback, I believe the administration should learn a lesson from this and be aware of the acronym TREE: timing, reasoning, estimation and effort for proposing anything of a political nature.

As the Chief Executive affirmed the purpose of the bill was to plug a "loophole" in the system which caused a by-election to be turned into a "de facto referendum", the appropriate time to introduce the amended bill would have been soon after the unhappy event on May 16, 2010. When the by-election was held due to the unduly resignation of five legislators from the Civic Party and the League of Social Democrats, the voting rate was merely 17.1 percent, the lowest in the election history of Hong Kong. This implied that 82.9 percent of voters did not support the "de facto referendum" and will likely support any amendment to repair the defects. If the administration had proposed to amend the loophole one year earlier, the story would have been different.

It was also reported that the administration had paid generously for legal advice about the amendment bill from a top Queen's Counsel in London, but the general public who paid the bill for the advice was not well informed about what the rationale for the proposal is. Hong Kong government officials simply told them the purpose was to plug the "loophole".

Notwithstanding that it may be politically correct, the 17.1 percent of voters may not agree, and the general public may be more interested in knowing why there is such a "loophole", and whether there is any legal reason to plug it.

However, the administration seems to know the reason. In the document furnished to LegCo on May 17, some overseas experiences where proportional representation is adopted were mentioned. It is a common practice to fill vacancies through a replacement method rather than a by-election, but unfortunately the reasons for why such a by-election is not necessary in such a case in Hong Kong was not given.

Actually, the reason why by-elections are not necessary for filling vacancies arising from proportional representation elections all over the world is simple and straight forward. If a by-election is adopted in such a case, it will violate the principle of equal suffrage. Legally speaking, equal suffrage means not only whether the number of votes which any voter may enjoy should be more or less equal, but also whether the voter's base for any seat in the election is more or less equal. But by-elections under the proportional representation system would unreasonably spoil the voter base substantially, and so the principle of equal suffrage is mangled.

For example, there are six seats for about 600,000 voters in the Hong Kong Island geographical constituency where the voter base is approximately 100,000 per seat, but if there is one vacancy to be filled in a by-election, then the voter base becomes 600,000 per seat. It is also the government's policy not to have different voter bases for more than 15 percent between one geographical constituency and another. However, there were voter bases of about 400,000 for Kowloon West and 900,000 for the New Territories West in the by-election held on May 16, 2010. They were not in conformity with the principle of equal suffrage as stipulated in the relevant international convention. And the reason for this is not difficult at all to explain or be understood - even by its opponents.

As to the issue of estimation, it is a political art, rather than an exact science. The administration should have the foresight on whether a consultation may be demanded, whether all pro-establishment law-makers will still be certain to render their firm support for a particular bill even in case of a change in circumstances, and whether the pan-opposition may have other tricks up its sleeve.

The government must also determine whether minor changes to the amended bill would be considered more acceptable. What can be done if a popular replacement arrangement is stigmatized as an "evil bill" in the same vein as the enactment of Article 23 of the Basic Law several years ago? The administration should be ready and prepared to clear its name.

In order to ease the public concern, the administration should decide whether direct dialogue with the Bar Association, the Law Society, and with various scholars in post secondary institutions is necessary. Additionally, it should also decide whether to prepare proper explanation corresponding to any queries and criticisms so far.

The public wants to see a collective effort by the administration under the strong leadership of the Chief Executive to have the bill passed as early as possible, and hopefully not later than the nominations for the District Council elections in November. Otherwise, the opposition will challenge the abolition of by-elections by reason of legitimate expectation.

The author is a current affairs commentator.

(HK Edition 07/07/2011 page3)