Hong Kong Government Releases Proposals for Constitutional Reform

June 4, 2010

On April 14, 2010, the Hong Kong government released its Package of Proposals for the Methods for Selecting the Chief Executive and for Forming the Legislative Council in 2012. The package of proposals increases the membership of the Legislative Council and of the committee that selects the chief executive. However, the proposals reflect limitations imposed by China in a 2007 decision on constitutional reform.

Hong Kong's current electoral system and the proposed changes

On April 14, 2010, Hong Kong Chief Secretary Henry Tang presented the government's Package of Proposals for the Methods for Selecting the Chief Executive and for Forming the Legislative Council in 2012 according to a press release issued by the Hong Kong Economic and Trade Offices in the United States. Some Hong Kong citizens reportedly have grown frustrated with the pace of democratic reform. As reported in a January 27 New York Times article, "The political system in Hong Kong is increasingly paralyzed, and street protests are growing more confrontational as public dissatisfaction on economic issues and a lack of democracy is rising."

Hong Kong's current system for selecting the chief executive and for forming the Legislative Council (Legco) is set out in the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China. Annex I of the Basic Law provides that the Chief Executive is selected by an appointed 800 member "election committee" composed of representatives of four groups: (1) industrial, commercial, and financial sectors, (2) the professions, (3) labor, social services, religious, and other sectors, and (4) members of the Legislative Council, representatives of district-based organizations, Hong Kong deputies to China's National People's Congress, and representatives of Hong Kong members of the National Committee of the Chinese People's Political Consultative Conference. As noted in a May 16 Financial Times article, the election committee is "dominated by pro-Beijing businessmen and community leaders." Under the proposals, the number of members of this committee would be increased to 1,200.

Annex II of the Basic Law provides for 60 members of Legco, 30 of whom are selected through direct geographically based elections and 30 through "functional constituencies." The Financial Times article refers to the functional constituency representatives as "primarily representing industrial and professional groups." Former Legco and chair of the Citizens Party, Christine Loh, now CEO of Civic Exchange,a Hong Kong-based public policy think tank, describes functional constituencies in a 2004 article published by the Jamestown Foundation (reprinted by the Association for Asian Research (online)). According to Loh, "some of the most influential voters are not even individuals but companies, making it extremely difficult to identify who really directs the voting decisions." The proposals would add 10 seats to Legco, 5 selected by functional constituencies and 5 directly elected, thus not changing the current 50:50 proportion. The Wall Street Journal, in an April opinion, refers to the role of functional constituencies as "a quirk of the Hong Kong system that allows business groups to elect MPs. Many of these groups are comprised of a few hundred people or less, and most are Beijing friendly." Though the functional constituency members are not selected through popular election, they wield substantial political power. The Basic Law, Annex II, Part II, provides that "passage of bills introduced by the government" require only a simple majority vote, but requires that the "passage of motions, bills or amendments to government bills introduced by individual members of the Legislative Council" require a majority vote of each of the two groups in Legco, those directly elected through geographically based elections, i.e. the geographical constituencies (GC), and those selected by the functional constituencies (FC). As Loh notes, "(t)his effectively means that 16 FC members can veto any proposal raised by the GC members" in Legco.

The proposals followed the Hong Kong government's issuance in November 2009 of the Consultation Document on the Methods for Selecting the Chief Executive and for Forming the Legislative Council in 2012, and a three-month consultation period, which ended on February 19, 2010. The scope of the government's proposals was constrained by a 2007 decision of the National People's Congress Standing Committee (NPCSC) concerning universal suffrage in Hong Kong, which provided that Hong Kong could not elect the chief executive or Legco by universal suffrage in the 2012 election, but that the chief executive may be elected by universal suffrage in 2017. The decision further provided that election of Legco by universal suffrage would only be possible after the chief executive is elected by universal suffrage, which would be some time after 2017 if Beijing agrees to allow direct elections of the chief executive in 2017. The next Legco election after 2017 will be in 2020, by which time 23 years will have passed since Hong Kong was handed over to China in 1997. According to the NPCSC decision, any bill for amending the current voting methods for the chief executive or for Legco must be approved by the NPCSC, thus giving the mainland authorities veto power over any proposals for universal suffrage in Hong Kong. In an announcement on the day the Hong Kong government issued its proposal, Qiao Xiaoyang, the deputy secretary general of the NPCSC, said that the legal effect of the 2007 decision was "beyond any doubt," according to an April 15 report titled, "Beijing seeks to end doubt on polls" in the South China Morning Post(subscription required).

Impact of the HK government's proposals, if implemented

The U.S. Department of State's 2009 Human Rights Report: China (includes Tibet, Hong Kong, and Macau) notes that the ability of citizens in Hong Kong to "participate in and change their government" is limited, and "[d]isproportionate political influence is granted to certain sectors of society through the existence of small-circle 'functional constituencies,' that elected half of the LegCo." The Hong Kong government's proposals, which Democratic Party chair Albert Ho has characterized as "making small changes to a bird cage," according the Wall Street Journal's opinion piece, do little to make the government more democratic. The current system of having a selection committee appoint the chief executive, and the role of the functional constituencies do not change. There is only a minor expansion of the numbers of participants. The proposals must be approved by a two-thirds vote in Legco. However, according to a May 3 South China Morning Post article, the government said it did not yet have the votes in Legco to pass its proposals. On May 11, the South China Morning Post said in an editorial that "all democratic legislators had rejected the package."

Two provisions of the Basic Law address prospects for democracy in Hong Kong. Further, according to a China Elections and Governance article of March 19, 2009, "Hong Kong's political future," Beijing had made formal assurances prior to the 1997 handover that Hong Kong could "make its own decisions about Legislative Council reform without referral to Beijing." According to the Wall Street Journal opinion, "Hong Kong was, after all, promised 'the ultimate aim' of universal suffrage for legislative and chief executive elections, starting in 2007." The January 28, 2010, article in the New York Times reported that the pro-democratic parties in Hong Kong are frustrated that China has "delayed or backtracked on commitments it made in the 1990s to allow people to directly elect a majority of lawmakers in the territories Legislative Council." As to provisions in the Basic Law itself, Article 45 provides 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." Article 68 provides, "The ultimate aim is the election of all the members of the Legislative Council by universal suffrage."