Select Committee on Foreign Affairs Minutes of Evidence

APPENDIX 5

Memorandum submitted by the Hong Kong Human Rights Monitor

HONG KONG—NINE MONTHS AFTER THE HAND-OVER

INTRODUCTION AND SUMMARY

  It is now nine months since the transfer of sovereignty over Hong Kong from the United Kingdom (UK) to the People's Republic of China (PRC). Before the transfer the idea that China's promise of "One Country, Two Systems" would be kept was widely regarded as naive both within Hong Kong and overseas. Both the recent history of the People's Republic, and statements about Hong Kong by senior Chinese leaders, suggested that basic freedoms would quickly be suppressed.

  In the period since the hand-over relief that it was not followed by immediate repression has given way to growing concern that Hong Kong's freedoms will be gradually eroded because of a lack of respect by the Government for the rule of law, and an undemocratic system of Government.

  Much of this concern has centred around the arrangements for the forthcoming Legislative Council elections, which are based on an electoral law deliberately designed to frustrate the popular will and ensure that the Council is dominated by small, unrepresentative cliques.

  The present report by Hong Kong Human Rights Monitor sets out in considerable detail the background to the main controversies which have arisen relating to the implementation of "One Country, Two Systems", both before and after the transfer of sovereignty. It is designed to ensure that the reader is fully briefed about each of the issues, several of which are complex.

  A theme which runs through the report is the way in which Britain's colonial legacy has left Hong Kong with weak democratic institutions and a deficient legal framework, which requires very little alteration to remove the limited protection which it provides for freedom. A related theme is the way in which the Joint Declaration was broken by China in several key respects before the transfer of sovereignty, with Britain's acquiescence.

  Hong Kong today has, for those who knew it before 1 July last year, a deceptive air of normality. This masks the fact that, whatever the deficiencies pre-1 July, there was a democratic Parliament at Westminster which was liable to pay attention if the situation in Hong Kong became unacceptable. No such backstop safeguard exists now. Hong Kong's whole way of life exists by courtesy of a leadership in Beijing which is accountable to no-one. The new Hong Kong leadership has shown that while it aims to preserve most of Hong Kong's way of life, where Beijings's wishes conflict with this, those wishes will come first, even where this involves breaking the law.

  This is cogently demonstrated in the recent law introduced by Mr. Tung Chee-hwa's Government to retrospectively exempt mainland Chinese bodies in Hong Kong from at least 500 Hong Kong statutes, including the one on privacy. This is clearly inconsistent with Article 22 of the Basic Law which provides, "All offices set up in the Hong Kong Special Administrative Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region." Despite Tung Chee-hwa's frequent assurances that he is committed to the rule of law, his Government has pressed the bill through the Provisional Legislative Council (PLC) during its last days of operation.

  In this situation international interest in Hong Kong is critical. We believe that if it had not been for the continuing interest shown by the outside world the situation in Hong Kong would already be much worse that it already is. We hope therefore that the European Parliament will rigorously scrutinise recent developments here and add its voice to those calling for strict maintenance of the rule of law and genuine progress towards democracy as promised in the Joint Declaration and Basic Law.

TERMS

  1. The terms governing the historic hand-over are prescribed in the Sino-British Joint Declaration of 1984, an international treaty signed by the British and Chinese governments and registered with the United Nations. The Joint Declaration describes the rights and protections which the people of Hong Kong shall enjoy, and outlines the general political and economic systems of the future Hong Kong Special Administrative Region ("HKSAR"). The terms of the Joint Declaration are substantially enacted as part of Chinese national law by the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China. However the Basic Law does not fully follow the Joint Declaration and is arguably in breach of it in certain key areas.

THE PROVISIONAL LEGISLATURE

  2. Although Hong Kong has a three-tier system of representative Government, Hong Kong people do not have the right to elect their government. The Chief Executive is ultimately in charge of the administration of the territory. He is advised on policy matters by a body known as the Executive Council which is wholly appointed by him. The three tiers of representative government consist of the Legislative Council which enacts laws, debates policy issues, controls public expenditure and scrutinises the Administration, the Urban and Regional Councils which act as municipal councils with the responsibility of providing public health, cultural and recreational services, and the District Boards which represent their various districts and advise on the implementation of policies.

  3. The Urban and Regional Councils are both statutory bodies with financial autonomy. Members of the Urban Council are directly-elected with 32 elected from geographical constituencies and nine representatives from urban District Boards. The Regional Council comprises 39 members in all with 27 elected from geographical constituencies, one representative from each of the nine New Territories District Boards, and the chairperson and vice-chairperson of the Heung Yee Kuk1 who sit as ex officio members.

  4. All 18 of the District Boards are statutory bodies and they provide a forum for public consultation and participation at the district. level. There are 346 elected members from constituencies and 27 Rural Committee Chairpersons from the New Territories who act as ex officio members.

  5. Since the transfer of sovereignty neither the Legislative Council, nor the Urban and Regional Council and District Boards have existed. All were abolished from 1 July.

  6. The Urban and Regional Council and District Boards have been replaced by "Provisional" bodies of the same name. Existing members of the previous elected Councils and boards have been permitted to continue as members of the Provisional bodies, but in addition other, usually pro-Beijing, nominees have been appointed so as to deprive the pro-democracy groups of majorities.

  7. The legitimate Legislative Council which was elected into office in September 1995 and disbanded by the PRC on 30 June 1997 was made up of 60 members. Twenty members were directly elected from geographical constituencies, thirty from functional constituencies and ten were returned by an election committee. This was replaced by a provisional legislature, a body wholly appointed by a Selection Committee, a group of 400 Hong Kong people selected by the China-appointed Preparatory Committee. Today, the provisional legislature has its last day of operation, if nothing extraordinary happens. In July this year it will be replaced by a new legislature to be elected on 24 May.

  8. The establishment of the provisional legislature was both unconstitutional and illegal. The joint Declaration and the Basic Law require an elected legislature, composed of 60 members of which 20 are elected from geographical constituencies, 30 from functional constituencies and 10 by an election committee. The legislature is to serve for a term of two years in the first instance, and if the pre-handover Legislative Council fits all these requirements, it may become the first Legislature of the HKSAR. The provisional legislature fits none of the criteria. In a highly controversial judgment in July 1997 the Hong Kong Court of Appeal declared that the Provisional Legislative Council was legal, but was not the legislative council of Hong Kong but a special preparatory body relating to the hand-over. The jurisprudential basis of this judgment is highly questionable.

  9. The principal argument put forward by the Chinese Government in establishing the provisional legislature was that the pre-handover Legislative Council did not comply with the Basic Law. The history behind this argument goes back to 1992 when the Governor of Hong Kong, Mr Chris Patten, proposed certain electoral reforms to further the democratisation process in Hong Kong. The Hong Kong Government at the time publicly stated that its policy on the electoral reforms was precisely to ensure that the 1995 Legislative Council would comply with the 1990 Decision and thus be eligible to ride the "through-train" described in the Basic Law.

  10. The Chinese authorities however, were offended that Mr. Patten insisted on the electoral reforms despite their opposition, and issued a statement saying that since Britain had deliberately tried to wreck the "through train", arrangement, the "through-train" was effectively de-railed. Without the "through train", a new legislature would have to be created for the SAR under new electoral legislation. As China deemed the present legislature tainted by Mr Patten's electoral reforms, the body was not competent to pass election laws for the future SAR. Thus, a provisional legislature had to be formed to pass those new electoral laws for the formation of the first "real" Legislative Council of the HKSAR.

  11. China further claimed that if it did not establish the provisional legislature, there would be a "legislative vacuum" on 1 July 1997 when it disbands the current Legislative Council. Hence, by the doctrine of necessity, it is obliged to fill that vacuum with this appointed legislature. There was no foundation to this argument for the following reasons:

—  China did not need to disband the pre-handover Legislative Council as it fully complied with the Basic Law (the "1990 Decision");

—  Even if it did disband the Legislative Council, a legislative vacuum need not have occurred: Every summer recess, Hong Kong functions without an active legislative body. Furthermore, the Basic Law allows for a period of three months between the dissolution of one legislature and the convening of another, in the event of an election (Article 68). An election for a new Legislative Council in accordance with the constitutional arrangements could have been held.

  12. The establishment of the provisional legislature was a most serious blow to the integrity of the Joint Declaration. Both the British and the Chinese Governments share responsibility for the fair and valid implementation of the Joint Declaration, yet both managed to breach its terms without sanction: the British Government by ignoring the illegality and allowing it to occur in straight violation of the Joint Declaration; the Chinese Government by establishing a body clearly in breach of the said treaty.

  13. As predicted, the provisional legislature has managed in the last nine months to dismantle any gains that had previously been made towards full democratisation of Hong Kong. This has included a number of roll-backs on legislation passed by the pre-handover Legislative Council which protected and promoted Hong Kong people's civil liberties, the passing of new legislation that has infringed upon guarantees under the Hong Kong Bill of Rights and the Basic Law, and most insidious, its rubber-stamping of electoral reforms designed to limit the democratic camp's access to the legislature and to disenfranchise a large sector of the population.

ELECTORAL REFORMS

  14. On 28 September 1997, after a nine-day consultation period, the provisional legislature passed an amendment to the Legislative Council Ordinance introducing the election procedure for the May 1998 elections. An Electoral Affairs Commission was established to promulgate election rules and procedures and to oversee the electoral process.

  15. The new election process differs markedly from that of the 1995 elections. Whilst three types of constituencies remain i.e., geographical, functional and the election committee, a system of proportional representation has replaced the first-past-the-post, single-member constituency system.

GEOGRAPHICAL CONSTITUENCIES

  16. For the May 1998 elections, the 20 members elected directly from geographical constituencies will be chosen from multi-member constituencies by proportional representation. Candidates will run on party lists, although independent candidates are permitted to form "single-candidate" lists. The 20 single-member constituencies used in the 1995 elections have been rearranged into five large constituencies.2 Each district will elect three to five members.

  17. A "largest remainder"system of proportional representation has been adopted under which the total number of votes cast is divided by the total number of seats in a constituency. This yields a quota, and each party list gains a seat for each quota of votes it wins. The remaining seats are then awarded to the list with the largest number of remaining votes. In small electoral districts this system may lead to a less popular party receiving as many seats as the most popular party.3 The National Democratic Institute (NDI) report cites this example for reference:

If there are three lists in a four-member constituency with a total of 100,000 valid votes cast, the quota to gain one seat would be 25,000 votes or 25 per cent of the total (100,000 votes divided by four seats). Assume the following election results:

List A 58,000 votes (58 per cent)

List B 34,000 votes (34 per cent)

List C 8,000 votes (8 per cent)

In the initial allocation, List A would win two seats, one for each quota of 25,000 votes (25 per cent), and have 8,000 remaining votes (58,000 minus 50,000); List B would earn one seat for its quota of 25,000 votes and have 9,000 remaining votes (34,000 minus 25,000). The remaining seat would go to List B, because it would have more votes remaining (9,000) than either List A or List C (8,000 each). In other words, in this example, the party that won 58 per cent of the vote and the party that won 34 per cent would each gain two of the four available seats.4

  18. Critics have argued that although a proportional representation system is generally seen as more democratic, in the context of Hong Kong, it is intended to reduce the seats of the democratic camp5 in the Legislative Council despite their popularity. There are already particular difficulties involved in decided on party lists. The NDI quotes the example of the Democratic Party which, in making their lists, would have to make the difficult choice in listing more senior members of the Party above newer members and thus reducing the latter's chances of being re-elected. Parties within the democratic camp are also having to be careful not to split the votes between them.

FUNCTIONAL CONSTITUENCIES

  19. Functional constituencies only allow people within a certain professional group or a particular sector of employment to vote for their own representative on the Legislative Council. In effect, it allows privileged persons from professional and business groups two votes during LegCo elections: one geographical constituency vote and one functional constituency vote. Under the previous electoral system, approximately 1 million of Hong Kong's 3.9 million electors had no entitlement to register under any functional constituency. Furthermore, there were substantial differences in the size of the different functional constituencies. Thus, in one constituency, 150 members may vote for their representative, whilst in another, 10,000 may vote for only one representative. This disparity was criticised by the UN Human Rights Committee as an affront to the principle of universal and equal suffrage as espoused by Article 25(b) of the ICCPR which provides that every citizen shall have the right and the opportunity without unreasonable restrictions to vote and be elected at genuine periodic elections which shall be by universal and equal suffrage.6 The UN Human Rights Committee in its November 1995 Report on Hong Kong7 found that "undue weight" was still being given to the "views of the business community" and voters were discriminated against "on the basis of property and functions".

  20. Under the electoral reforms passed by the provisional legislature, the situation is worse. Three of the nine new functional constituencies created under the Patten reforms for the 1995 elections have been eliminated. The remaining six have been narrowed and there has been an extension of the system of corporate voting previously largely abolished by the Patten reforms. Polls suggest little public support for the return to corporate voting or for the idea of indirect elections by functional groups.8

  21. In the 1991 elections where corporate voting was last permitted, Mr. Lee Shau Kee, the chairman of Henderson Land Company Limited and other companies controlled 21 votes in the Real Estate constituency: one personal vote and 20 votes through his other companies where he has a controlling interest. The total number of registered votes in that constituency was only 373 and with his 21 votes, he controlled over 5 per cent of all votes.

  22. This example serves to demonstrate the extent to which corporate membership can distort and pervert election results. Additionally, there exists the danger that blocs of votes may be "traded" as part of political or business deals. Where companies are controlled by nominees, it is even more difficult to trace where the real impetus for support is coming from.

THE ELECTION COMMITTEE

  23. In the 1995 elections, the Election Committee comprising 283 directly elected members of the district boards chose 10 members for the Legislative Council through a list system using a single, transferable voting system.

  24. For the 1998 elections, a new 800-member Election Committee will chose the 10 remaining members of the Legislative Council.9 The Committee will be composed of only Hong Kong permanent residents. The members of the Committee are to be chosen in a complicated manner. In basic terms, three blocs of 200 will be from;

(a)  an industrial, commercial and financial sector;

(b)  the professional sector; and

(c)  the labour, social services and religious sector.

  The final 200 will be made up of Hong Kong political leaders. This includes Hong Kong delegates to the National People's Congress, Hong Kong members of the National Committee of the Chinese People's Political Consultative Conference, members of the PLC, and representatives of the district, rural and municipal boards. Most of the members of the Election Committee will be chosen not by individual voters but by enfranchised organisations. Arrangements for the election of the Election Committee, to be held on 2 April, border on the ridiculous. For some of the "subsectors" (constituencies) there are only two polling stations for the whole of Hong Kong although the election is being held on a working day.

VOTER REGISTRATION

  25. One of the problems of voter registration in Hong Kong is the fact that many Hong Kong residents live a somewhat transient existence between Hong Kong and another country. The electoral framework does not provide for absentee or postal ballots.

THE ELECTORAL AFFAIRS COMMISSION

  26. An Electoral Affairs Commission (EAC) has been established to serve as the co-ordinating body for the electoral administration. It replaces the Boundaries and Election Commission established for the 1995 elections. Its mandate allows it to specify regulations for voter registration, constituency delineation, party registration and nomination, campaigning (including financial matters) and the voting procedure.

SEATS OPEN TO PERMANENT RESIDENTS WITH FOREIGN PASSPORTS

  27. The Basic Law provides that up to 20 per cent of the seats in the LegCo, or 12 of the 60, can be held by permanent residents of Hong Kong "who are not of Chinese nationality or who have the right of abode in foreign countries."10 For the 1998 elections, these 12 seats will be designated to 12 functional constituency seats only and not any of the directly elected seats. This would seem to violate the Basic Law which does not place any limitations on foreign passport-holders standing for geographical constituency seats.

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Prepared 7 August 1998