The cover story of the HKMA News
this month is about the HKSAR Government’s Proposals for Selecting the Chief
Executive by Universal Suffrage. To be
exact, we are actually highlighting the questionnaires sent to members asking whether
they choose to support the Proposals or not. Some people treat this survey very seriously. Within this Council, there have been lengthy
discussions on each and every aspect of the survey, from wordings of the
questions, to how many questions, to methods of distribution and return, to
whom to send, and to methods of analysis. There are members writing to the Forum
expressing their opinions and urging others to do so via our survey. I even received a
forwarded email from Professor David Todd (of which I doubted the authenticity
very much), saying
that “… I would like to appeal to you to speak your voice when
the new survey comes out. We should no
longer stay in the sidelines as the silent majority.”
As if it really matters. This is what I think when reviewing what
happened after our previous responses to the consultation papers and the events
in October last year.
For this survey, there is only
one question is asked. It is very
straightforward. You just state whether
you support the Government Proposals or not. There is no “if” or “provided that”. You can take it, or beat it. As a doctor, I must admit that I do not know
how to respond. We are advised by the
Code of Practice and well-circulated court cases that doctors need to provide
options for treatments to patients. The
pros and cons of each option need to be explained fully. Even rare side-effects need to be addressed if
they are considered significant to the patient by common sense. However, for the choice between accepting the
Proposals or not, several crucial and fundamental questions remain unanswered. No one knows with any certainty what would
happen if the Proposals are rejected. Neither
can anyone tell when or how the proposed methods, if adopted, can be modified
or “up-graded”. The Government is
hard-selling its miracle drug. Side
effects are rarely mentioned or analysed.
I have to transcend my mode as a
doctor so as to make a choice. Can
lawyers choose better? They are good at
selling lopsided theories to help their clients. However, I guess they are none the wiser to
choose between such theories. I need a
judge instead. Afterall, the dispute
arises from the interpretation of statute, namely the Basic Law of Hong Kong,
particularly Article 45. The duty to
declare whether the Proposals satisfy the statute should fall on a judge. However, by some unknown reasons, for better
or for worse, I am now asked to decide, as if it really matters.
Laymen do decide cases in some
circumstances. There are jurors in
criminal cases and defamation cases with leave from the judge. Before the jury retires to deliberate, the judge
will give directions to help their decision making. Apart from guidance and explanation on legal
principles, the directions are built on logics. To facilitate my thinking process, I self-talk
some directions to myself as follows.
I call what we have now for Chief
Executive selection A, the Government Proposals B, and what we should
have as promised C. To over-simplify
matter, I am not treating any of them as better, since different people can
have different preference and interpretation. What we have to decide now is simply whether
to support B. It is assumed that by
rejecting B, we are left with A.
Apparently, B is not the same as C.
This is reflected in the slogan of the
Government asking people to “pocket first”. But, if you think that B is no difference from C,
then you should support B.
If C does not bother you,
you can forget about C. Your decision then solely depends on whether
you prefer A or B.
If you want to have C
in the foreseeable future, then you need to consider whether B
or A
would have a higher chance of leading to C. If you think that B is an inevitable step
between A and C, then you should support B.
If you think that B would side-track the
route from A to C, which means that it decreases the
chance of reaching C, then you should reject B. The reverse also applies. If you do not want to have C,
you can choose accordingly.
If you long for C,
but is smart enough or as pessimistic as to know that there will never be C,
you should allow yourself to moan for a while. Then you should think about whether you prefer
to live with A or B for the rest of your life. You have to consider whether B,
sold as a palliative treatment, makes you feel better. You have to decide according to what have been
presented to you. You have to choose
which witness to believe. This is a
civil case. The standard of proof is on
a balance of probability.
This time, you cannot take as
long as you need. There is a deadline. There will not be any hung jury or mistrial. The outcome will either be A
or B.
After contemplating the above
directions from the imaginary judge, I realize that it is an ultra difficult
decision for me to make. But I am not
worrying, although the clock is ticking. I am just moaning.
And, please take it seriously in
answering the survey, as if it really matters.
(Source: HKMA News May 2015)
