House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Third Report

THE ELECTORAL SYSTEM AND PROGRESS TO DIRECT ELECTIONS

The Provisional Legislative Council

7. The Chinese Government did not accept that the 1995 Legislative Council election and the Council which was elected was compatible with the Basic Law and therefore decided that it should cease to exist with effect from the handover. The Provisional Legislative Council was appointed by a Selection Committee appointed by the Preparatory Committee.[14] Its members were chosen in December 1996 and included just over half the members of the existing Legislative Council. In effect, it operated in parallel with the Legislative Council in the run up to the handover. Certain legislation was agreed by the Council in this period and these changes were given effect in Hong Kong law by the Reunification Ordinance agreed by the Provisional Legislative Council on 1 July 1997. Its final meeting was on 7-8 April 1998, having passed 54 Bills during its period of operation. It was formally dissolved on 30 June 1998.[15]

8. The British Government never agreed[16] that there was any incompatibility between the Basic Law and the 1995 electoral arrangements and consequently that there was a need for a provisional legislature to replace the Legislative Council after the handover. Nor did it agree that the provisional legislature was "constituted by elections", as the Joint Declaration required.[17] The Hong Kong Human Rights Monitor also criticised both the establishment of the Council (which it describes as "unconstitutional and illegal"[18]) and many of its legislative acts. The Democratic Party (none of whose members were selected for membership of the Council) wrote that it "has without exception proven itself to be a rubberstamp for both the local Hong Kong Government and for directives from Beijing".[19] In a speech to the International Bar Association Conference on the Worldwide Application of the ICCPR[20] on 13 June 1998, Ms Elsie Leung Oi-sie JP, Secretary for Justice, set out the legal aspects of the establishment of the Council, in the context of the unacceptability to the People's Republic of China of the composition of the 1995 Legislative Council. She described the Council as "an interim body set up, out of necessity, with limited terms of reference to assist the first SAR Government in the absence of the first Legislative Council". On legal grounds, she asserted that the circumstances required the establishment of an interim legislature, to enact both the electoral laws needed to establish the first SAR Legislative Council and "other essential legislation", and to approve SAR Government funding.

The 1998 Legislative Council elections

THE ELECTORAL ARRANGEMENTS

9. As in 1995, the 1998 Legislative Council election was to elect a Legislative Council as follows:

20 seats in geographical constituencies elected by universal suffrage;

30 seats in functional constituencies to represent certain business and professional sectors; and

10 seats elected by members of an Election Committee.

However, for 1998, there are significant changes in the electoral arrangements for each category of seat. Thus, in the geographical constituencies, first-past-the post voting in 20 single seat constituencies has been replaced by a list-based system of proportional representation with five multi-seat constituencies. Substantial changes were made in the structure of the functional constituencies which sharply reduced the number of eligible voters in this sector. Corporate voting was restored to elect 20 of the functional constituency members. We discuss these changes in more detail below. The Election Committee, which in 1995 had been composed of District Board members who had themselves been directly elected in local elections, was in 1998 comprised of 800 members representing four specific sectors who had been elected by voters in the relevant functional constituencies.[21]

10. The Hong Kong Economic and Trade Office has supplied us with details of the electorates in the functional constituencies for each of the last three Hong Kong elections. The aggregate registered electors for the 1991, 1995 and 1998 elections is given in Table 1:

TABLE 1

	Estimated Potential Electorate	No. of Registered Electors
1991	104,609	69,825
1995	2,611,534	1,147,107
1998	233,739	138,984

11. The very substantial rise in the number of potential electors in 1995 over 1991 arose to an overwhelming extent from the introduction of nine new and very large functional constituencies. The contraction in 1998 arises from the abolition of these nine functional constituencies, which had a total registered electorate of 1,064,041, and their replacement by eight new functional constituencies with a total registered electorate of 10,918.[22] These changes are shown in detail in Table 2. The remaining seat was filled by providing for the Labour Functional Constituency to elect three members rather than two.

TABLE 2

1995			1998
New Constituencies	Estimated potential electors[23]	Number of registered electors	New Constituencies	Estimated potential electors	Number of registered electors
Primary Production, Power and Construction	243,000	75,174	Agriculture and Fisheries	170	165
Textiles and Garments	141,000	60,568	Insurance	216	196
Manufacturing	221,000	113,957	Transport	149	137
Import and Export	353,000	113,241	Sports, Performing Arts, Culture and Publication	2,850	1,136
Wholesale and Retail	267,000	101,988	Import and Export	7,400	1,182
Hotels and Catering	203,000	69,592	Textiles and Garments	19,090	2,739
Transport and Communication	304,000	109,716	Wholesale and Retail	10,600	2,216
Financing, Insurance, Real Estate and Business Services	282,000	171,534	Information Technology	7,950	3,147
Community, Social and Personal Services	446,000	248,987
TOTAL ABOVE CONSTITUENCIES	2,462,000	1,064,757	TOTAL ABOVE CONSTITUENCIES	48,425	10,918
Total for remaining Constituencies	151,534	83,066	Total for remaining Constituencies	185,314	128,066
TOTAL	2,611,534	1,147,107	TOTAL	233,739	138,984

Source: Hong Kong Economic and Trade Office

12. In his evidence to us, Mr Fatchett expressed concern over the arrangements for the 24 May election—"given the way the election arrangements have been structured, the precise composition of LegCo will not fully reflect popular opinion".[24] This concern stemmed essentially from two aspects: the return to corporate voting in many of the functional constituencies combined with the replacement of the nine mass-membership functional constituencies introduced for the 1995 election, and the form of proportional representation to be used in the geographical constituencies.[25] Others have criticised aspects of the structure of the elections, including the Hong Kong Freedom Association,[26] the Hong Kong Human Rights Monitor[27] and the Democratic Party.[28] The Hong Kong Human Rights Monitor noted that there have been criticisms of the proportional representation system used in the geographical constituencies, which could in some circumstances discriminate against the more successful parties. It also drew attention to potential consequences of the reintroduction of corporate voting and cited a case from the 1991 election (the last when corporate voting was used) where one person in practice controlled over 5 per cent of all votes in one particular functional constituency.[29]

13. We share the concerns that have been expressed about the electoral structure. The results of two thirds of the seats in the Legislative Council—40 out of 60—are decided by less than 140,000 voters out of a total registered electorate of about 2.8 million. We believe that the structure is fundamentally flawed.[30]

RESULTS OF THE ELECTION

14. In the event, and despite some of the gloomy predictions made, the 24 May election broke a number of records for a Hong Kong election. According to the recent report from the HKSAR Government,[31] there were record numbers of candidates, registered voters, and votes cast. It is the view of the HKSAR Government that the geographical constituency results fairly and accurately reflected voter preference. The UK Government considered that "the high turn-out demonstrates the determination of people in Hong Kong to play a full role in the democratic process. While we retain strong concerns about the framework for the election, particularly the sharp reduction in the franchise for the functional constituencies, we believe that the conduct of the elections reflects well on the HKSAR Government and the independent Electoral Affairs Commission, which ensured strict adherence to the rules and fair treatment for all candidates".[32]

15. Table 3 shows the distribution by party of seats in the new Legislative Council, and the number of votes received in the geographical constituencies. This abundantly demonstrates the difference in value of votes in the various categories of seat. Indeed, no less than ten of the thirty functional constituency candidates were returned unopposed (including six members of the Liberal Party and one member of the Democratic Party). Of the contested functional constituencies, the lowest number of votes received by a successful candidate was 25 (Regional Council) and four others received less than 100 votes.[33] By contrast, the lowest number of votes for a successful candidate in the geographical constituencies was 38,627.[34]

TABLE 3

Political Affiliation	Votes obtained in Geographical Constituency elections		Number of Seats in Legislative Council
Political Affiliation	No. of valid votes	& of votes	Geographical Constituencies	Functional Constituencies	Election Committee	Total Number	% of Seats
Democratic Party	634,635	42.9	9 NOTE 1	4	0	13 NOTE 1	21.7
Liberal Party	50,335	3.4	0	9	1	10	16.7
Democratic Alliance for Betterment of Hong Kong (DAB)	373,428	25.2	5	3	2	10	16.7
Hong Kong Progressive Alliance (HKPA)	0	0	0	2	3	5	8.3
The Frontier	187,134	12.6	4 NOTE 2	0	0	4 NOTE 2	6.7
Citizens Party	41,633	2.8	1	0	0	1	1.7
Other parties/groups	92,194	6.2	0	0	0	0	0
Independents and non-affiliated	100,881	6.8	1	12	4	17	28.3
TOTAL	1,480,240 NOTE 3	100*	20	30	10	60	100*

* Individual figures do not add necessarily up to 100 due to rounding.

Note 1: Lau Chin-shek who is also a Frontier member is grouped under Democratic Party as he stood in Kowloon West on the Democratic Party list.

Note 2: Includes Leung Yiu-chung who ran in his capacity as a member of the Neighbourhood and Workers Service Centre in New Territories West on a one person list and

not on the list of The Frontier. He polled 38,627 votes.

Note 3: The total number of valid votes is 1,480,240, while the total number of voter turnout is 1,489,705.

Source: Hong Kong Economic and Trade Office

16. The Government commented that "the elections are a step towards a legislature elected entirely through universal suffrage. We hope that the HKSAR Government will ..... work towards early realisation of this goal".[35] Mr Fatchett had previously told us that "my view is there is a strong democratic pressure in Hong Kong quite the contrary to the notion that the Hong Kong people are not ready for democracy and do not wish democracy".[36] The Basic Law provides[37] for progressive increases in the proportion of members of the Legislative Council elected by geographical constituencies through direct elections, at the expense of members returned by the Election Committee, who will be phased out by the third election (in 2004). At this point, the Legislative Council will consist of equal numbers of members returned by functional constituencies and members returned by geographical constituencies (30 of each). Article 68 of the Basic Law also provides that "The ultimate aim is the election of all the members of the Legislative Council by universal suffrage".

17. We believe that the results abundantly demonstrate our earlier contention that the present electoral structure is seriously flawed. As Table 3 clearly demonstrates, it manifestly does not result in a Legislative Council composition which accurately reflects the popular will. We support the early realisation of elections to the Legislative Council based solely on universal suffrage. As the Basic Law presently stands, the earliest election which can be held on the basis of universal suffrage is that in 2008. We believe this is too distant: Hong Kong's longer term economic progress is in our view dependent on the strengthening of democracy and the maintenance of the rule of law. We hope therefore that the HKSAR Government will bring forward an amendment to the Basic Law to provide for elections of the Legislative Council by universal suffrage as soon as possible, and that such an amendment will find favour with the National People's Congress.

Election of the Chief Executive

18. The Basic Law also provides[38] 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". The method to be used for the next election at least, in 2002, is a "broadly representative Election Committee ..... appointed by the Central People's Government."[39] Provision is made for amending the method of selection for the third and subsequent terms.[40]

19. There was considerable support in Hong Kong for a move to universal suffrage for the election of the person to be appointed by the Central People's Government as Chief Executive. We hope that the HKSAR Government will give careful consideration to putting the appropriate procedures in hand as soon as possible. Because there is a separation of powers between the Executive and the Legislature, only by electing both the Chief Executive and the Legislative Council can a democratically elected administration be said to have been created.[41]

14 See Ev. pp.6, 9. Back

15 Cm. 4019, para. 1.21. Back

16 Cm. 3719, para. 1.5. See also Q10. Back

17 Joint Declaration, Annex I, Section I (Constitution). Back

18 Appendix 5, p.39. Back

19 Appendix 6, p.59. Back

20 The International Covenant on Civil and Political Rights. Back

21 For a more detailed summary of the electoral arrangements for the 1998 election, see Ev. pp.3-4. Back

22 See Ev. pp.5-6 and Appendix 8, p.73. Back

23 Figures are rough estimates only. Some of the potential electorate may overlap with other functional constituencies. Back

24 Q1. Back

25 For detailed description of the electoral arrangements, see Ev. p.3-6. Back