May, 2010

Democracy and Constitutional Development in Hong Kong

Dr. Lee Man-yee Karen
Department of Law and Business
Hong Kong Shue Yan University

Discussion on Hong Kong’s democratic development has been with us even before reunification with Mainland China in 1997. During the Sino-British negotiation over Hong Kong’s future in the early 1980’s, the colonial government started to put in place electoral reforms with an aim to introducing certain democratic elements to an executive-dominated legislature. The year of 1991 marked the first time where the Legislative Council had had ten members directly elected by geographical constituencies. During his five-year term as the last colonial governor, Chris Patten introduced a series of legal reforms for furthering Hong Kong’s democratic development, only to be reversed by the Provisional Legislative Council upon reunification. Hence the question as to whether Hong Kong could continue its quest for democracy following the end of an undemocratic though largely benign colonial rule.

The answer largely lies in Hong Kong’s so-called “mini-constitution” the Basic Law, in which the constitutional obligations and aspirations of the Special Administrative Region are enshrined. Apart from assuring the status quo for fifty years, the Basic Law expressly contemplates “universal suffrage” though is silent on its definition. Under Article 25 of the International Covenant on Civil and Political Rights (ICCPR), an international treaty incorporated into Hong Kong’s law under Article 39 of the Basic Law, universal suffrage means giving each citizen “a vote of equal value” in open elections. In other words, each registered voter should be able to vote for any contesting candidates, whether the election is based on the system of “first-past-the-post”, where the candidate who gets the most votes in a constituency gets the seat, or of “proportional representation”, in which a commensurate number of seats will be allocated to the participating political parties on the basis of the percentage of votes that each of them garners. Hong Kong’s current electoral system falls short of the “universal” criterion under the ICCPR because voters can only vote for half of their legislators, and only 800 members from the Selection Committee can select the Chief Executive. Not only does the Basic Law not define universal suffrage, it also makes no mention of when and how this will happen to the elections of the Chief Executive and the Legislative Council, apart from references to qualifying conditions such as “in light of the actual situation” and “in accordance with the principle of gradual and orderly progress” (Articles 45 and 68). Such open-ended languages give rise to debates over when is the right time for Hong Kong to choose its leaders and the procedures that it requires. Although the Standing Committee of the National People’s Congress (NPCSC) announced in 2007 that Hong Kong could choose its Chief Executive and all legislators by universal suffrage in 2017 and 2020 respectively, one may question the kind of “universal suffrage” that the Central Government has in mind.

Added to the controversy is the future of functional constituencies (FC) which currently return half of the sixty-member Legislative Council. FC were a legacy of the colonial government as a way to pacify Hong Kong’s business and professional communities in return for their support of its executive-led government. During colonial time, FC could be seen as providing a channel for local people, albeit mostly from the elite class, to take part in public affairs in a society that was largely dominated by British interests. But time has changed as sovereignty passed. Nowadays, legislators who represent business and other established interests are generally seen as rubber-stamps for approving government proposals. Their continued presence is made all the more questionable as some of them have been repeatedly returned uncontested and are reported to have been frequent absentees from legislators’ meetings. Be that as it may, the majority of Hong Kong’s voters could do nothing as those legislators are primarily accountable to their respective constituents rather than voters of geographical constituencies, most of them do not have a say in returning them in the first place. Hence, there is a strong voice in society for the abolition of FC that undoubtedly touches the nerves of many so-called vested interests in Hong Kong particularly the business sectors which have been seen as reliable allies of the establishment.  

Why do people want to have universal suffrage and to see functional constituencies go? What is good about democracy? Winston Churchill once said, “Democracy is the worst form of government, except for all those other forms that have been tried from time to time” (from a House of Commons speech on 11 November 1947). The fact that he gave this comment after his own parliamentary defeat in 1945 brings home the point. Perhaps it is legitimacy that underlies the value of democracy. When people know that each of their votes counts, they are more willing to accept the results even if their favourite candidates lose out; in the same vein, defeated candidates as Churchill once was need to respect their voters’ choice. In a democracy, people live with what they have consciously chosen and the consequences, for they know that if the elected leader does not deliver, he will not probably make it the next time round. In this sense, democracy does not mean that people will always have good leaders; it does not mean that there will not be anti-government protests; it does not mean that everyone lives happily ever after. It does mean that there is a general consensus that people take responsibility for the government they have chosen and that government has a corresponding moral duty and a political mandate to honour its promises.

Democracy is not the panacea for resolving society's problems. Its promise lies in giving each person equal opportunities to express their will in electing leaders in whom they place trust and expectations. Many Hong Kong people expect just that. The ball is now in the government’s court to see what it could deliver.