Development of the Hong Kong Special Administrative Region's Political System

Development of the Hong Kong Special Administrative
Region’s Political System

1. On or about 25 January 2000, we were consulted, as part of the
public consultation process, by the Panel on Constitutional Affairs
of the Legislative Council on Development of HKSAR’s Political
System. We were asked specifically to address the following issues:

Ministerial system

(1) What should be the respective roles of the Executive and the
Legislature and their structural and operational inter-relationship?

(2) Should principal officials be politically appointed or should
they continue to be permanent civil servants and other persons appointed
on contract?

(3) How should principal officials individually and the Executive
collectively be held accountable to the Legislature?

Election by universal suffrage

(4) When should the Chief Executive be elected by universal suffrage
and how?

(5) When should all LegCo Members be elected by universal suffrage
and how?

Others

(6) Any other related issues, eg, referendum, constitutional assembly/convention,
regulation of political parties, etc

(7) Relevant experiences in foreign countries relevant to the discussion.

General Approach and the Constitutional Framework

2. We acknowledge that development of HKSAR’s political system
is both a political and constitutional/legal issue. As a professional
body, we will confine our view to the legal dimension.

3. Any development of the HKSAR’s political system has to be
made within the framework of the Basic Law. The political structure
of the HKSAR is set out in Chapter IV of the Basic Law. Three provisions
are of particular significance:

Art 43

The Chief Executive of the HKSAR shall be accountable
to...the HKSAR
in accordance with the Basic Law.

Art 64

The Government of the HKSAR must abide by the law and be accountable
to the Legislative Council
of the Region: it shall implement
laws passed by the Council and already in force; it shall present
regular policy addresses to the Council; it shall answer questions
raised by members of the Council; and it shall obtain appproval from
the Council for taxation and public expenditure.

Art 68

The Legislative Council of the HKSAR shall be constituted by election.

The method for forming the Legislative Council shall be specified
in the light of the actual situation in the HKSAR and in accordance
with the principle of gradual and orderly progress.
The
ultimate aim is the election of all the members of the Legislative
Council by universal suffrage
.

4. In considering the development of the HKSAR’s political system,
it is also necessary to take into account the international obligation
of the HKSAR under the International Covenant on Civil and Political
Rights (‘ICCPR’) as applied to Hong Kong, which has been
incorporated into the HKSAR through Art 39 of the Basic Law. Art 25
of the ICCPR provides:

‘Every citizen shall have the right and the opportunity,
without any of the distinctions mentioned in article 2 and without
unreasonable restrictions:

(A) to take part in the conduct of public affairs, directly or
through freely chosen representatives;

(B) to vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by secret
ballot, guaranteeing the free expression of the will of the electors;..

Ministerial System and the Relationship between the Executive
and the Legislature

5. The roles of the Chief Executive, the Government of the HKSAR,
and the Legislative Council are respectively set out in relatively
clear terms in Arts 48, 62 and 73 of the Basic Law.

6. Although it has not been explicitly stated in the Basic Law, the
constitutional framework set out in the Basic Law clearly endorses
the principle of separation of powers, namely that the legislative,
executive and judicial functions are entrusted to three different
institutions, each having their own exclusive jurisdictions and at
the same time exercising checks and balances against one another.
Hence, while the Chief Executive is to lead the Government (Art 48),
the Government of the HKSAR must abide by law and be accountable to
the Legislative Council (Art 64). The passage of legislation requires
the assent of the Chief Executive (Art 76). At the same time, the
Basic Law prescribes the procedure when the Chief Executive refuses
to assent to a bill duly passed by the Legislative Council (Arts 49-52).
While the Chief Executive has the power to dissolve the Legislative
Council under certain circumstances (Arts 50 & 51), the Legislative
Council also has the power of impeaching the Chief Executive (Art
73(9)), and the Chief Executive is required to resign if he persists
in refusing to sign a bill passed by two successive Legislative Council
(Art 52). We do not find any support for the so-called ‘executive-led
government’ in the Basic Law, if this phrase means that the Executive
shall prevail over the Legislative Council. Instead, what we find
in the Basic Law is an elaborate system of checks and balance grounded
upon the principle of separation of powers.

7. Notwithstanding this elaborate mechanism of checks and balances,
two general principles stand out in the Basic Law. First, the Government
of the HKSAR is accountable to the Legislative Council (Art 64). Art
64 further elaborates the meaning of accountability. The Government
shall implement laws passed by the Council and laws already in force.
It shall present regular policy addresses to the Council. It shall
answer questions raised by members of the Council, and shall obtain
approval from the Council for taxation and public expenditure. The
Legislative Council is vested with the corresponding power, such as
the power to raise questions on the work of the government, to debate
any issue concerning public interests, and to summon, as required,
persons concerned to testify or give evidence, in order to ensure
that it can carry out its monitoring role (Art 73).

8. Secondly, the Chief Executive is accountable to the HKSAR (Art
43). Unlike Art 64, Art 43 does not set out how the Chief Executive
shall be accountable to the HKSAR. The Chief Executive is the head
of the Government of the HKSAR (Art 60). Thus, by making the Chief
Executive accountable to the HKSAR, the Government of the HKSAR must
a fortiori be under the same duty of accountability to the HKSAR.
It also follows that the situations set out in Art 64 should not be
exhaustive of the duty or scope of the accountability of the Government.

9. Apart from a duty to explain, to justify, to report, and to obtain
approval in fiscal matters/spending of public revenue, accountability
also connotes a sense of responsibility. In the case of a member of
the Legislative Council, accountability is achieved through the system
of election. A member will be voted out in the following election
if the electors are not satisfied with his performance during his
term. Similarly, in the case of the Executive Government, and particularly,
principal officials, an effective system of accountability will require
the existence of a system of sanction or removal from office when
the public has lost confidence in a principal official.

10. The Basic Law has not prescribed any system of the Executive
Government, be it ministerial or otherwise. We reckon that this is
an issue on which the public should be widely consulted. At the end
of the day, whatever system be adopted, it must comply with the requirement
of accountability to both the Legislative Council and the HKSAR as
set out in the Basic Law.

Election by Universal Suffrage

11. Art 68 of the Basic Law sets out three principles in the development
of a democratic legislature in the HKSAR:

(1) The development shall take place in the light of the actual situation
in the HKSAR;

(2) It shall accord with the principle of gradual and orderly progress;

(3) The ultimate aim is the election of all the members of the Legislative
Council by universal suffrage.

12. Upon resumption of sovereignty on 1 July 1997, a Provisional
Legislature was formed which was constituted entirely by appointment.

13. The method of formation of the First Legislature was set out
in a Decision of the National People’s Progress adopted on 4
April 1990. It composed of 60 members, with 20 members returned by
geographical constituencies through direct elections, 10 members returned
by an election committee, and 30 members returned by functional constituencies.

14. The composition of the second and third term of the Legislative
Council is set out in Annex II of the Basic Law. There is a gradual
reduction of members returned by the Election Committee, which is
coupled by a corresponding increase in the number of members returned
by geographical constituencies through direct election.

Method of Formation of Legislative
Council
1st Term 2nd Term 3rd Term
Members returned by Functional constituencies 30 30 30
Members returned by the Election Committee 10 6 0
Members returned by geographical constituencies
through direct election
20 24 30

15. Para III of Annex II of the Basic Law provides for a procedure
for amending the method of the formation of the Legislative Council
after its 3rd term. Any amendment has to be made with the endorsement
of a two-thirds majority of all the members of the Legislative Council
and the consent of the Chief Executive, and shall be reported to the
Standing Committee of the NPC for the record.

16. The second and the third principles set out in Art 68 of the
Basic Law requires a progress in the formation of the Legislative
Council towards election of all members of the Legislative Council
by universal suffrage. Therefore, to freeze the composition of the
Legislative Council as that in its 3rd term after 2008 will be contrary
to Art 68. There must be progress.

17. Election of members of the Legislative Council by geographical
constituencies by direct election was first introduced to Hong Kong
in 1991. By the end of the third term of the Legislative Council of
the HKSAR, people in Hong Kong have at least 17 years of experience
in direct election. This has not included experience in direct election
of members of the District Board, which goes back to 1982, and direct
election of members of the Urban Council, which dates back to 1887!

18. Functional constituencies election was first introduced to the
HKSAR in 1985. This election system gives a right to elect a member
to the Legislative Council to people and organisations in different
profession and in the business community. It confers a privilege to
an elite class and is not consistent with the principle of election
by universal suffrage.

19. Election by functional constituencies has been criticized by
the Human Rights Committee for being contrary to, inter alia, Art
25 of the ICCPR. In its Concluding Observation on the 4th Periodic
Report in 1995, the Human Rights Committee stated:

‘The Committee is aware of the reservation made by the United
Kingdom that article 25 does not require establishment of an elected
Executive or Legislative Council. It however takes the view that
once
an elected Legislative Council is established, its election must conform
to article 25 of the Covenant. The Committee considers that the electoral
system in Hong Kong does not meet the requirements of article 25,
as well as articles 2, 3 and 26 of the Covenant.
It underscores
in particular that only 20 of 60 seats in the Legislative Council
are subject to direct popular election and that
the concept
of functional constituencies, which gives undue weight to the views
of the business community, discriminates among voters on the basis
of property and functions
. This clearly constitutes a violation
of articles 2, paragraph 1, 25(b) and 26.
’ (Para 19)

The Committee recommended that ‘immediate steps be taken to
ensure that the electoral system be put in conformity with articles
21, 22 and 25 of the ICCPR’. (para 25)

20. The Human Rights Committee recently reiterated its criticism
in its Concluding Observation on the 5th Periodic Report:

‘The Committee reiterates its concern, expressed in paragraph
19 of its concluding observations, adopted at the end of the consideration
of the fourth periodic report, that the electoral system for the Legislative
Council does not comply with articles 2, para 1, 25 and 26 of the
Covenant. The Committee is concerned about the impending abolition
of the Municipal Councils that would further diminish the opportunity
of HKSAR residents to take part in the conduct of public affairs,
that is guaranteed under article 25
.’ (Para 12)

21. Thus, it is clear that election by functional constituencies
is an anomaly which is contrary to the international obligation of
the HKSAR under the ICCPR which is incorporated by Art 39 of the Basic
Law. The 3rd principle in Art 68 of the Basic Law further reinforces
that functional constituencies election is only an interim measure
towards election by universal suffrage. The ultimate aim of achieving
election of all members by universal suffrage must be achieved well
before the end of the 50 years’ period guaranteed by the Basic
Law.

22. Given the long history of direct election in Hong Kong, and the
interim nature of functional constituencies election, and taking into
account the international obligation under the ICCPR and the requirement
of progress in the political development in the HKSAR as well as the
ultimate aim of achieving election by direct election as set out in
Art 68 of the Basic Law, we are of the view that the Legislative Council
shall be constituted entirely by geographical election by universal
suffrage after the 3rd term.

23. Alternatively, the people of Hong Kong shall be given an opportunity
to decide on this question, and the most appropriate means to do so
is by way of a public referendum. It is well established that the
right to self-determination in Art 2 of the ICCPR includes an internal
dimension, namely that the people have a right to decide on the political
system of their Government. Should a referendum be held, we are of
the view that the referendum should decide on the timetable of achieving
the ultimate aim set out in Art 68 of the Basic Law. Hence, the question
to be addressed should include whether the Legislative Council shall
compose of members returned by direct election only in 2008, and if
not, should this be achieved in 2012, 2016 etc.

The Chief Executive

24. Art 45 of the Basic Law provides that the Chief Executive shall
be selected by election or through consultations held locally. The
method for selecting the Chief Executive shall be specified in the
light of the actual situation in the HKSAR and in accordance with
the principle of gradual and orderly progress. 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. Annex 1 of the Basic Law provides that the
Chief Executive shall be elected by a broadly representative Election
Committee of 800 members who shall come from 4 different sectors.
It also envisages that the method of selection of the Chief Executive
subsequent to the year 2007 can be amended.

25. Unlike the election of Legislative Council, election of the Chief
Executive in Hong Kong has a short history and was introduced only
in 1997. We are of the view that how the Chief Executive shall be
selected subsequent to the year 2007 is a matter of public importance,
and it is an appropriate subject for a public referendum.

26. However, we note that the present methods in selecting or electing
members to the Election Committee vary greatly from sector to sector
and within sector. Article 45(2) of the Basic Law envisages the existence
of a nomination process whatever be the method of selection of the
Chief Executive. We note that the existence of a nomination process
is virtually universal in any form of election, and the purpose is
to ensure that any candidate would have sufficient public support
before he or she is permitted to go into the general election. Article
45(2) refers to a nomination committee which is broadly representative
in accordance with democratic procedures, but it does not specify
the formation of the nomination committee or the nomination process
save for the first two terms of the Chief Executive.

27. We believe that the formation of the nomination committee shall
comply with the following principles"

(1) its formation and operation should be open, transparent, participative,
and fair;

(2) it must be broadly representative of all walks of society;

(3) there should exist a degree of check and balance, which is the
characteristic features of all democratic procedures (as referred
to in Art 45(2)); and

(4) any proposal must be easy to implement.

28. In order to move forward to the ultimate aim of having a broadly
representative Election Committee in accordance with democratic procedures,
we are of the view that all members of the Election Committee shall
be returned by either direct or indirect election. There is also a
strong case to have at least half of the members of the Election Committee
returned by geographical election by universal franchise, as direct
public participation is the hallmark of the democratic process, which
is envisaged in Art 45(2) of the Basic Law.

Dated the 3rd March 2000.

Hong Kong Bar Association