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Hearings on prospects for democracy in Hong Kong
James V. Feinerman
3/15/2004

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Randall Schriver on democracy in Hong Kong
 
SUBCOMMITTEE ON EAST ASIAN AND PACIFIC AFFAIRS
SENATE FOREIGN RELATIONS COMMITTEE
UNITED STATES SENATE
HEARINGS ON PROSPECTS FOR DEMOCRACY IN HONG KONG
James V. Feinerman
Associate Dean, International and Graduate Programs
James M. Morita Professor of Asian Legal Studies
Georgetown University Law Center
Thursday, March 4, 2004

Mr. Chairman and Members of the Subcommittee:

Thank you for holding these hearings and for providing an opportunity for me to present my views and to share information gathered on recent visits to the Hong Kong Special Administrative Region (HKSAR) of the People's Republic of China (PRC) and in ongoing work in the field of the rule of law in China. Given Hong Kong's population, strategic position, and economic importance, it remains necessary to focus upon a number of other significant
considerations in formulating United States policy towards the HKSAR. Of course, the United States has enacted in domestic law the Hong Kong Policy Act of 1992, to indicate our continuing interest in economic and political relations with the territory and in the well-being and
prosperity of its citizens. In addition to United States actions and responses to moves taken by the PRC, recurrent questions surrounding the PRC's intervention in the HKSAR’s governance despite promises that Hong Kong would enjoy at least fifty years of autonomy following its return to PRC sovereignty remain difficult to answer.

In recent weeks, thousands of Hong Kong residents have once again taken to the streets to call for greater democracy in the territory. Six years after the handover, the populace is calling for the semi-autonomous Hong Kong government to speed up reforms that would grant them more say in the choice of leaders and legislators. The first series of protests last summer was triggered by the Hong Kong government's attempts to pass a security law designed to prevent subversion against the central government in Beijing -- seen by many as signal of an 1 United States - Hong Kong Policy Act of 1992, Public Law 102-383, 102nd Congress [S. 680]. (codified at 22 U.S.C. 5701 et seq.) Sec. 2, para. 6, “Findings and Declarations,” states:

The human rights of the people of Hong Kong are of great importance to the United States and are directly relevant to United States interests in Hong Kong. A fully successful transition in the exercise of sovereignty over Hong Kong must safeguard human rights in and of themselves. Human rights also serve as a basis for Hong Kong's continued economic prosperity... erosion of the freedoms the territory was promised under Hong Kong's mini-constitution, the Basic Law. After an estimated half-a-million people protested on July 1, Hong Kong’s Chief
Executive Tung Chee-hwa backed down and delayed a vote on the controversial security bill, originally scheduled for early July, 2003.

Introduction. An increasing cause for concern in the international community is the Chinese government's antagonism towards the desire of the Hong Kong people for the establishment of a modicum of the democratic political process as expected under the terms of the Sino-British Joint Declaration and Hong Kong’s Basic Law by 2007. Hong Kong's future has become even more problematic in the wake of the failed attempt to enact draconian national
security legislation pursuant to Article 23 of the Basic Law by means of a truncated legislative process and the sympathetic reaction of many Hong Kong residents to the goals of prodemocracy forces. Harsh rhetoric from Beijing has been addressed to those in Hong Kong who publicly voiced their support for dissident elements, boding ill for the enjoyment of promised civil liberties.

This drama has been played out in Hong Kong before, so the residents of Hong Kong are understandably worried. A protracted series of negotiations lead to the adoption of the Basic Law, a "mini-constitution" for post-1997 Hong Kong. Three successive drafts were circulated, and public comment was invited. Strong public reaction to the undemocratic nature of the government proposed for Hong Kong after 1997 in these drafts led to strident statements from both PRC and Hong Kong representatives. Officials from China threatened to impose a framework on Hong Kong unilaterally if its representatives persisted in their "intransigence."

To allay fears in Hong Kong over the prospect that the United Nations International Covenant on Civil and Political Rights, in force in Hong Kong as a result of British colonial rule, would no longer apply after the Chinese takeover, China agreed to its incorporation in the territory. Although British attention to human rights in Hong Kong had been rather limited, the threat of the removal of this basic underpinning for civil liberties was nonetheless troubling. Adherence to international human rights standards and the conventions enunciating them since
the handover of Hong Kong has been generally good, with a few glaring exceptions which will be noted below.

The Legal Framework. On July 1, 1997, the United Kingdom relinquished sovereignty over Hong Kong to the People's Republic of China according to an agreement between those two nations reached in 1984.2 As an international agreement between the two nations which have had the most direct control over Hong Kong's fate, this document is the starting point for any analysis of Hong Kong's post-1997 legal system. Yet, the Joint Declaration itself merely
anticipated the construction of a new framework to implement the broadly-worded, precatory

2 JOINT DECLARATION OF THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN
AND NORTHERN IRELAND AND THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA ON THE
QUESTION OF HONG KONG, Dec. 19, 1984, Gr. Brit. T.S. No. 20, reprinted in 23 Int’l.Leg. Mats.
1366 (1984)[hereafter "Joint Declaration"].

...document that established the process for the transfer of sovereignty.

On April 4, 1990, the Chinese National People's Congress in Beijing passed a Basic Law for the Hong Kong Special Administrative Region,3 which came into effect in 1997; the President of the PRC subsequently promulgated this law. Among other provisions, this Basic Law contains guarantees of individual rights, leaving to future determination the precise means for enforcement of these rights. Current Rights Situation in Hong Kong. Despite its status as one of the United Kingdom's last remaining colonies (or "Dependent Territories," in quaint British usage), Hong Kong had come to enjoy considerable economic prosperity and rather extensive civil and political liberties during the two decades immediately preceding its return to Chinese sovereignty. The formal instruments of government were controlled by the appointed Governor;
the nominal legislature, Hong Kong's Legislative Council, was hardly a democratic body. Its 56 members were either personally selected by the governor (20 non-official members) or elected by professional bodies and district boards (26 non-official members). An additional ten members were public servants, who served by virtue of their official positions (10 official members). Yet, despite the undemocratic nature of their selection, in the decade preceding 1997, the membership of the Legislative Council had come to include (by appointment and election) a
reasonably large group of younger, outspoken members who voiced the concerns of the Hong Kong citizenry. Moreover, the obvious concern of the Hong Kong government for the wellbeing of its people – manifest in its commitment to public housing projects, mass transit and other infrastructural improvements and public health and social welfare – convinced the populace of the benign intentions of their unelected overseers.

As a British colonial dependency, Hong Kong also enjoyed many of the protections of the unwritten English constitution and common law as well as the rule-of-law tradition. These were – to a great extent – transplanted to Hong Kong and have taken root. The Hong Kong judiciary, particularly at its higher levels, was scrupulously honest and independent of (and resistant to) any executive or legislative interference with its adjudication. Significant
indigenization of the judiciary and the legal profession has occurred over the past twenty-five years; local Chinese professionals are well trained and already largely in control of these institutions. Until 1992, final appeals from the Hong Kong Court of Appeal were taken to the Privy Council in London; since that time, in preparation for Hong Kong's return to Chinese sovereignty in 1997, a new Final Court of Appeal was established. The Chinese government, among other guarantees, promised that Hong Kong could retain this legal system for at least 50
years after China recovers sovereignty over Hong Kong.
Some Issues Arising from Hong Kong's Return to Chinese Sovereignty. As already noted, the United Kingdom and the People's Republic of China concluded a Joint Declaration with three

3. THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’S REPUBLIC OF CHINA, adopted on 4 April 1990 by the Seventh National People's Congress of the People's Republic of China at its Third Session. [hereafter "Basic Law"].

annexes in 1984 under which Britain has agreed to restore Hong Kong to China on July 1, 1997. Hong Kong then became, pursuant to Article 31 of the Chinese constitution, a Special Administrative Region(SAR) of China and, in the words of the Joint Declaration, was expected
to “enjoy a high degree of autonomy, except in foreign and defense affairs, which are the responsibility of the Central People's Government.” Following the ratification of the Joint Declaration in 1985, the National People's Congress of China, through an appointed Basic Law Drafting Committee (BLDC), undertook the writing of a Basic Law - in effect, a constitution for post-1997 Hong Kong - which was (among other things) to insure Hong Kong's autonomy: “[T]he socialist system and socialist policies shall not be practiced in Hong Kong, and ... Hong Kong's previous capitalist system and lifestyle shall remain unchanged for 50 years.”

In connection with the transfer of sovereignty, the British government in Hong Kong attempted to establish a toehold for representative government in Hong Kong before 1997 by aiming for the direct election of at least ten members to the Legislative Council by 1991, with
further increases before 1997. Members of the pre-1997 Legislative Council had proposed that at least 50 per cent of the seats there should be directly elected by 1997, with a mechanism put in place to provide for 100 per cent direct election by 2003. The last British Governor of Hong Kong, Chris Patten, proposed speeding up this timetable to provide more representative rule by 1995. China threatened to “react” to any precipitous rush toward participatory democracy in Hong Kong before 1997 as a hostile act. In crude, almost scatological, language that echoed the
denunciatory harangues of the worst days of the Cultural Revolution, Patten, the British and any Hong Kong Chinese who sided with them were vilified repeatedly and at great length. The parallels with recent rhetoric emanating from Beijing is ominous.

Moreover, before 1997, in response the outpouring of popular support in Hong Kong for the mainland pro-democracy demonstrators in 1989 and thereafter, thinly veiled threats against Hong Kong individuals and groups issued from both the Chinese government and its representatives in Hong Kong. China stated that it would not allow Hong Kong to become a "base for subversion" against the People's Republic, although it has never made clear what activities it would count as subversive. Three successive drafts of the Basic Law were publicized, with little attempt to answer substantive criticisms of earlier drafts by responsible Hong Kong parties (and Hong Kong members of the BLDC). Two members of the BLDC who
were also current members of the Legislative Council at that time, teachers' union leader Szeto Wah and lawyer Martin Lee, were expelled from the BLDC and accused of "counterrevolutionary activities" for their involvement in protests against the 1989 massacre in and around Tiananmen Square. A Bill of Rights for Hong Kong, which was supposed to be published in January 1990 by the Hong Kong Government, was delayed because of mainland
pressure. When it was eventually adopted in June, 1991, the Chinese authorities announced that it would not bind them after 1997 and that they felt free to reject any or all of it after the resumption of Chinese sovereignty. So much for guarantees that Hong Kong's pre-1997 legal system would continue in force!

A Brief History of PRC Interference in Hong Kong Governance. Almost immediately after the establishment of the People's Republic of China on the mainland in 1949, the Chinese government began a program of infiltration and sought to wield influence over the affairs of the British colony which remained in Hong Kong. Once it became clear that the British were not leaving Hong Kong, China reached a modus vivendi with the British colonial government which
permitted China, isolated from much of the world after the Korean War, to use Hong Kong as a kind of entrepot for contact with the non-socialist world. Much of China's foreign exchange was earned through Chinese-controlled enterprises based in Hong Kong and from direct sales to Hong Kong of basic commodities. Surplus population and individual malcontents were allowed to flee across China's border with Hong Kong; eventually, almost two million refugees entered Hong Kong from 1949 until the late 1960s. Whatever hopes China might have had that such an
influx would destabilize Hong Kong and encourage the British to leave were dashed by Hong
Kong's resilience; resources were mobilized to house and maintain at a subsistence level the colony's swelling population.

At the end of the 1960s, China's "Great Proletarian Cultural Revolution" washed over into Hong Kong briefly, as political radicals sought to achieve - in line with then-current political thinking on the mainland - the immediate revolutionary transformation of Hong Kong and the expulsion of the colonial power. Militant trade unionists and other pro-mainland activists tried their best to turn the populace against the British, but to no avail. After a brief period of disorder, the government firmly re-established its control. Successive temporary waves of immigrants from the mainland recurred, but they were easily absorbed by Hong Kong's growing economy.

By the early 1980s, attention began to focus on the 1997 deadline for return of the leased New Territories (which account for over 90 per cent of Hong Kong's total land area) to China under the terms of an 1898 treaty. China made it clear that it would not countenance any continuation of British control and that it intended to resume sovereignty. As a practical matter, the rest of Hong Kong would have to revert along with the New Territories. Initial resistance to China's stance, contemplated by then-British Prime Minister Thatcher (flush from her victory in the Falklands), was later prudently abandoned in the face of Chinese resolve. A handful of senior Hong Kong Chinese officials were promised full British passports and residency in Britain, but only a pitiful number availed themselves of the offer. On the other hand, the basic human rights of the rest of Hong Kong's people were left to the determination of the same Chinese leaders who ordered the People’s Liberation Army to fire on students in Tiananmen Square. From an international human rights perspective, this was clearly unacceptable; however, the international community, which at that same time was scarcely bestir itself to worry about Bosnia and Somalia in the throes of all-out war, proved unable to focus upon a possible crisis in Hong Kong years before its return to the mainland.

Reasons for the Current Concern Over Democracy in Hong Kong. Hong Kong's Basic Law, often described as a “mini-constitution,” which was agreed by both sides before the handover, allows the possibility of direct elections for the Chief Executive and all of its Legislative Council from 2007. But it also says Beijing must approve any electoral changes, which means China has the final say. China's Communist Party clearly fears growing demands for full democracy could threaten its control over the territory and possibly spread to mainland China. Some mainland officials have said they doubt Hong Kong's patriotism after a massive protest against the local Bejing-backed government last year. The march drew half a million people into the streets to denounce attempts by Hong Kong leader Tung Chee-hwa to push through an unpopular anti-subversion bill. As the Chairman well knows, having co-sponsored a Joint Resolution in the Senate last summer expressing support for democracy in Hong Kong, both the legislative and executive branches of the United States government have expressed serious concerns about compliance with, and implementation of, the Joint Declaration and the Basic Law in the light of these experiences.

Notwithstanding these wide-ranging differences, there remains a great deal of common interest between the United States and the PRC in the resolution of other numerous issues which may make the PRC heed expressions of concern over the smooth transition in Hong Kong in the runup to 2007. On the regional level, continuing peace and prosperity in East and Southeast Asia and even free access to the high seas to the east and south of the PRC will require China to maintain stability, balance and positive engagement with the international community.

Below, I attempt to examine just a few problem areas with regard to pace of democratization in Hong Kong, and the legal underpinnings of the claims made by both prodemocracy forces and representatives of the PRC insofar as the gradual introduction of selfgovernance was promised to Hong Kong, to evaluate their current status and to weigh various options for possible progress.
The Legal and Policy Bases for Democratization in Hong Kong after 1997.

Under the Sino-British Joint Declaration of 1984, Hong Kong returned to Chinese rule in
1997 with the understanding it would maintain limited self-government and be allowed to enjoy
its capitalist way of life at least until 2047. The current Chief Executive, C.H.Tung, was
installed for five years, and again in 2002 for a second term, after being selected by a pro-Beijing
electoral committee. Hong Kong’s local laws are passed by a 60-member Legislative Council,
but only 24 of its members are directly elected by Hong Kong voters. The rest are selected by an
electoral committee or by groups called "functional constituencies," representing a small
segment of the total population of seven million. Ironically, the same Basic Law that required the
government to enact the security legislation which proved so broadly unpopular last summer also
calls for it to pursue greater democracy by 2007. Yet Tung's attempts to push ahead with the
security laws, while not moving on the democratization, has left many in the territory frustrated
and suspicious.
Rev. Louis Ha, a Roman Catholic priest, has said that the aim of the protests has been to
promote the drive for universal suffrage, as well as to educate people about democracy, and
encourage democratic values such as tolerance and respect in peoples' everyday lives. The
Catholic bishop of Hong Kong, head of Hong Kong's 230,000 Catholics, has also appealed to the
4 S. J. RES. 14, “Expressing support for freedom in Hong Kong,” IN THE SENATE OF THE
UNITED STATES, 108th CONGRESS, 1st Session, June 27, 2003.
6
government to listen to the voices of the people. “Hong Kong people have the quality and ability
to rule ourselves,” he has been quoted as saying. “Give us a chance to show the whole world that
we will do well on our own.”5
Recent Developments Affecting Prospects for Hong Kong’s Democratization
Communist China welcomed back Hong Kong in 1997 under its “one country, two
systems” policy, whereby Hong Kong people could still enjoy a bustling free press, freedom of
speech and religion, and rule of law. It promised a fair degree of autonomy, and with Britain
drafted Hong Kong's the basic law. But when it comes to the “one country, two systems” policy
under which Britain handed Hong Kong over in 1997, there's a wide gulf between the aspirations
of the majority in Hong Kong and China's authoritarian rulers. What's happening now in China is
about the next steps toward democratization in Hong Kong in 2007. Democracy is being debated.
What's being talked about is the right of Hong Kong citizens in 2007 to elect a Chief Executive,
like an American state governor, of their own choice.
Hong Kong is not a full democracy. Under a complex system carried over from British
colonial days, only some politicians are freely elected, while trade groups and China also have
their say. People do not directly elect the Chief Executive. But over the past year, hundreds of
thousands of Hong Kong citizens have expressed their desire for greater democracy. As many as
100,000 people took to the streets on New Year's day, and 500,000 did so on July 1st last year.
Under pressure, Chief Executive Tung Chee-hwa, last year promised to draw up plans for a
consultation process on the possible introduction of direct elections in 2007. Pursuant to the
Basic Law, 2007 is the earliest chance for constitutional reform and movement towards the
ultimate goal of direct elections. The Basic Law provides that after 2007 major changes to the
constitutional framework in Hong Kong may take place, the ultimate aim of these changes being
the election of the Chief Executive and the Legislative Council by direct election.
Last month, a Hong Kong task force finished three rounds of talks with leaders in Beijing
on the future of democracy in the territory. Hong Kong's Chief Secretary for Administration
Donald Tsang and his team completed the talks after their meeting with the Chinese parliament,
the National People's Congress, to seek their advice on holding full elections in Hong Kong by
2007. The Chief Secretary said of his mission, “The most important thing of the trip is to give us
an opportunity to express the public opinion. I think we have reached that target,” he told
reporters, calling the result of the meeting “satisfactory.” Tsang said Beijing wants thorough
discussions on principles before Hong Kong proceeds with its constitutional development and a
web page would be established to seek further public opinion on the issues. Chinese leaders
5 Fr.Ha is editor of the Catholic periodical, Kung Kao Po, as well as a member of the
Democratic Development Network (DDN) that formed last summer in Hong Kong. See
R20030714c.html>.
7
have appeared non-committal on the issue, questioning only whether Hong Kong actually
wanted universal suffrage.
The task force was created by Hong Kong Chief Executive Tung Chee-hwa early this
year, following the street protests last summer calling for a speedier transition to universal
suffrage in the territory.
Reportedly, China will not allow Hong Kong to choose its next leader through full
elections, according to a local press report that quoted unnamed sources close to the Beijing
leadership. Also a consultation exercise to seek the public's view on increased democracy in the
city was just a “show” intended to placate the pro-democracy camp, the South China Morning
Post (SCMP) has reported. The source told the SCMP that Beijing would draw up its own plan
to guide what form the next selection process for the city's chief executive would take in 2007.
A three-day trip to Beijing last month by a task force charged with seeking the Chinese
leadership's opinion on the issue ended in near farce when China's top leaders snubbed the
delegation. Beijing later poured cold water on democracy hopes, saying it would have the final
say in how Hong Kong chooses its next leader and that “patriots” would rule the territory. That
sparked hot debate on what defined a patriot and whether China would consider anti-government
campaigners patriotic enough to allow them to stand in any election. Beijing is also expected to
take a tougher position on Hong Kong if pro-democracy forces become the dominant power in
the territory's top law-making body in elections in September and then work against Chinabacked
leaders, according to unidentified sources. In 1997, Beijing established a provisional
legislature and effectively dismantled electoral changes made by Britain in the waning years of
colonial rule.
Post-2007 Political Reform and Democratization in Hong Kong. Hong Kong’s
constitutional journey has been unique. Most former colonies were released from their imperial
power decades ago; Hong Kong was almost the last major territory to achieve such status.
Furthermore, these former colonies became independent and replaced their former colonial
administration with the institutions of democratic government. Hong Kong was absorbed by
another sovereign power, and preserved its former administration almost unchanged. In Hong
Kong's case, in fact, a virtue was made of continuity with the colonial era. Many civil servants
simply carried over.
Then, why does Hong Kong need reform? Hong Kong has an established system of
rights and operates by the rule of law. It enjoys a high standard of living and – aside from the
recent recession – consistently high levels of economic growth. Although many people express
discontent with the Government, there are no signs of mass unrest. And the PRC, as sovereign,
would have to be persuaded of the benefits of any reform. Is it worth expending energy on the
constitutional reform project? Some have suggested that the current system might continue for
several more decades, with full suffrage and direct elections coming at the end of the fifty-year
period, say in 2037, rather than “as early as” 2007.
Hong Kong’s governance today is essentially that of a colonial administration, a form
8
more appropriate to the nineteenth than to the twenty-first century. The relatively favorable
outcome of this governance to date – at least in terms of living standards and rights – should be
regarded as exceptional. Particularly in the light of the few spectacular glaring failures of the
Tung administration, it is definitely not something that can be relied upon for the long term.
Also, under British rule there were certain checks and balances on Hong Kong’s colonial
governance system, such as accountability to the democratically-elected British Parliament. In
that position today is China’s National People’s Congress, a far different institution. It is not
clear that in Hong Kong's present situation the continued enjoyment of human rights, the rule of
law, and ultimately of living standards, can be assured.
By its own terms the constitution mandated by the Basic Law should begin to change –
with a gradual expansion of directly elected seats in the legislature and a progression, albeit
without a definite timetable, towards full democracy. As Hong Kong approaches the ten-year
anniversary of its handover, it is only common sense to plan for these changes. Secondly, Hong
Kong’s governance structure increasingly seems inherently unstable: a legislature enjoying an
gradually growing mandate from the people but little power, facing an executive selected by a
narrowly-based committee which wields very considerable power. It is highly unlikely that such
a situation can accommodate the changes that lie ahead. Finally, recent experience with the
HKSAR’s response to SARS and the Article 23 legislation reveals how far Hong Kong needs to
reform over the long term.
The Chief Executive. Hong Kong’s executive model is that of a colonial administration,
similar to the former administrations of Britain’s other ex-colonies. The civil service wields both
substantial power of policy-making and power to administer policies. The Chief Executive is
selected by an Election Committee which is in turn selected by the Mainland Chinese authorities
or under their auspices – the latter process being conducted in secrecy. With the departure of
British administrators, many Hong Kong residents believe that the executive tends to represent
the interests of local business elite. At the same time, the democratically-elected portion of the
legislature appear to represent the “have-nots,” pressing for social-welfare policies such as a
minimum wage, more public housing, lower government charges and fees. This tends to
polarize policy debates in the HKSAR.
As provided in the Basic Law, the Chief Executive is expected to be chosen by direct
election eventually, even though the initial selection process provides for the narrower and less
democratic committee-selection process. Article 45 spells out the details:
Article 45
The Chief Executive of the Hong Kong Special Administrative Region shall be
selected by election or through consultations held locally and be appointed by the Central
People's Government.
The method for selecting the Chief Executive shall be specified in the light of the
actual situation in the Hong Kong Special Administrative Region and in accordance with
the principle of gradual and orderly progress. The ultimate aim is the selection of the
9
Chief Executive by universal suffrage upon nomination by a broadly representative
nominating committee in accordance with democratic procedures.
The specific method for selecting the Chief Executive is prescribed in Annex I:
"Method for the Selection of the Chief Executive of the
Hong Kong Special Administrative Region".6
Moreover, the Basic Law envisages an executive accountable to the legislature (Article 64).
The legislature. The Basic Law sets out a program for increasing the proportion of
legislators elected by direct election. This was meant to increase the popular mandate and
legitimacy of the legislature. Increasing power for the Hong Kong Legislative Council, or
Legco, might follow the trajectory of the European Parliament, which when established had little
power, but gradually took more power. Also, being directly elected, the European Parliament
enjoyed greater legitimacy than the other European governmental institutions, parallel to the
experience in Hong Kong.
The majority of Legco’s members are not directly elected and tend to side with the
government. Legco’s voting procedures also handicap its effective performance. The Hong
Kong Legco also has almost as many committees as a large developed country parliament like
the UK, but only one-tenth as many legislators. In the 2000 Legco, 30 seats are from Functional
Constituencies (professional groups, business and other sectors) and 10 are selected by an
Election Committee. In countries with bicameral legislatures, frequently members of one
chamber are selected other than by geographical direct election. For example, the House of
Lords in Britain includes not only hereditary and appointed Lords but also bishops. The United
States Constitution provides every State with two Senators, while member of the House of
Representatives are elected proportionally to population. Yet, in most countries, these second
chambers are with another chamber which is fully directly-elected. Hong Kong’s Functional
Constituency and Election Committee elections to the legislature are almost unique.
The Election Committee will not be used again. But by 2007, unless there is some
change, the 30 Functional Constituency seats will continue to exist. This functional constituency
system is highly anomalous. In1998 – among other shortcomings – 10 out of 28 functional
constituencies were unopposed, while many others were returned by a “small circle” of
individual voters or by companies under common control. Three ways have been suggested to
address the issue of Hong Kong’s functional constituencies: abolition (arguing that they are
anachronistic and should simply be abolished); reform ( to make them more democratic and
representative of the people); or dilution (to reduce their influence by creating more directly
elected seats). Any of these solutions would be preferable to maintenance of the status quo.
Here again, the Basic Law contemplates eventual movement towards fully representative
government. Article 68 makes clear its “ultimate aim”:
6 The text of Annex I is appended at the end of this testimony, pp. I-ii.
10
Article 68
The Legislative Council of the Hong Kong Special Administrative Region shall
be constituted by election.
The method for forming the Legislative Council shall be specified in the light of
the actual situation in the Hong Kong Special Administrative Region 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.
The specific method for forming the Legislative Council and its procedures for
voting on bills and motions are prescribed in Annex II: “Method for the Formation of the
Legislative Council of the Hong Kong Special Administrative Region and Its Voting
Procedures.”7
The Judiciary . As the post-1997 experience has made painfully clear, the independence
of the judiciary cannot be relied upon when the power of the Executive is as pervasive as it is in
Hong Kong. It is ultimately unreasonable, in the absence of other strong institutions of
government, to expect individual judges to resist the executive. The independence of the
judiciary needs to be buttressed by strengthening other institutions such as the legislature.
Most notoriously, the judiciary’s independence was circumscribed after 1997 by the
outcome of the Ng Ka Ling case, which arose out of a challenge to a local Hong Kong
immigration statute severely inhibiting right of abode in Hong Kong (guaranteed in the Basic
Law) for children born to parents resident in Hong Kong.8 Exercising its power of constitutional
judicial review to overturn several provisions which derogated that right, the Court declared it
would take a purposeful and generous approach to interpreting constitutional rights guaranteed in
the Basic Law. In its judgment, the Court also explicitly declared that in deciding such disputes
the Court of Final Appeal (CFA) would have to determine when to refer provisions respecting
local-central relations or matters of central authority to the Standing Committee of the NPC.9
The court concluded it was not required in this case.
7 The full text of Annex II is appended at the end of this testimony, pp. ii-iv.
8 Article 24 of the Basic Law (the first Article in the chapter entitled “Chapter III:
Fundamental Rights and Duties of the Residents) provides that Hong Kong residents include
“persons of Chinese nationality born outside of Hong Kong” of Hong Kong residents. Under the
Article, such residents are entitled, as are other Hong Kong residents, to the right of abode and a
permanent identity card. Suit was initiated by several children who claimed that their basic right
of residence was effectively denied under a newly enacted immigration ordinance which required
them to apply on the mainland for an exit permit.
9 Basic Law, art. 158.
11
The HKSAR government, at Chief Executive Tung’s direction, filed a motion for the
CFA to “clarify” its judgment declaring its power to examine acts of the NPC. In a second brief
judgment, the Court explicitly stated that it did not hold itself above the NPC, essentially
restating its original position.10
A more serious attack on the judgment and the rule of law occurred in May 1999 when
the government, after issuing a report claiming the judgment would produce a flood of 1.67
million migrants into Hong Kong, made a request to the Standing Committee of the NPC to
interpret the relevant provisions of the Basic Law, effectively seeking to overturn the CFA
judgment.11 As a result of this end-run around the CFA, the finality of judgments of the CFA in
Hong Kong has clearly been called into question and the rule of law has been put in doubt. Full
confidence in the rule of law requires both respect for the authority of the CFA and confidence in
its genuine ability to render final judgments.
A Note on Human Rights. These are enshrined in the Basic Law and in statute, and
protected by the courts. However, Article 23 of the Basic Law on subversion – which
occasioned such controversy last summer when attempts were made to push through legislation
implementing it – and other provisions such as those enabling the Chinese Central Government
to intervene in Hong Kong’s affairs (Article 18) and to interpret the Basic Law (Article 158), the
superior privileges of “Chinese citizens”, set limits on the enjoyment of human rights. In
practice, the non-democratic nature of government and the power of the executive pose further
dangers. Also, with regard to the media, there are important issues of newspapers’ selfcensorship
and censorship by newspaper owners which affect the actual enjoyment of freedoms
guaranteed by the Basic Law and international human rights agreements.
Conclusion. The Basic Law of Hong Kong provides for the possibility of instituting full
direct popular democracy in 2007. Hong Kong is, therefore, at a stage where it makes eminent
good sense to look forward, to ask what type of political arrangements should be made for the
next steps in its democratic development, and to begin planning. For Hong Kong, the issue is not
whether to have or not have democracy or constitutionalism; these institutional commitments are
provided in an international agreement, the Sino-British Joint Declaration. Furthermore, Hong
Kong’s own popular commitment to democracy, human rights and the rule of law favors liberal
10 Ng Ka Ling v. Director of Immigration, Court of Final Appeal, Final Appeal No. 14 of
1998 (Feb. 26, 1999).
11 The government’s decision to undermine a Final Court Judgment has produced strong
condemnation from the Democratic camp, the Bar and leading constitutional scholars. Michael
C. Davis, “Home to Roost,” South China Morning Post, May 16, 1999, at 10.
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constitutional democracy.12 Fundamental to Hong Kong’s economic future is the widely
acknowledged fact that human rights and the rule of law give economic actors more confidence
in the system. Moreover, democratic countries are better able to respond to crises such as the
late-1990s’ East Asian economic crisis and the more recent SARS.
The 1984 Sino-British Joint Declaration provides for democratic rights, as well as
incorporating in Hong Kong international human rights covenants.13 In practice, since the handover,
there have been some problematic developments and failures to make progress. The
current electoral system works to the advantage of a tiny elite. A two-thirds majority of the
Legco would have to vote to institute full universal suffrage after 2007. Even amendments to
government bills, proposed by legislators, require the Chief Executive’s approval to be
considered. Even more problematic is the fact that amendment of the Basic Law is vested in the
National People’s Congress (NPC).14
Attacks on the judicial independence is probably the greatest causes for concern about
continued protection of human rights. On the other hand, continued exercise of freedom of
speech and association is the greatest cause for optimism. The 1991 Bill of Rights Ordinance
remains in force after the handover, minus certain key provisions; it copies almost verbatim the
International Covenant on Civil and Political Rights (ICCPR).15 At least, the PRC government
continues to file reports on behalf of Hong Kong under the international human rights covenants.
Yet, as is clear from the concerns expressed above about the willingness of both the PRC and
Hong Kong governments to follow through on settled expectations about the pace of
democratization in the HKSAR, much more remains to be done. Judiciously applied, foreign
pressure to maintain the pace established by the HKSAR’s foundational documents can
encourage progress for the millions of Hong Kong residents whose democratic aspirations should
not be dashed.
12 Michael C. Davis, “Constitutional Theory and Hong Kong Practice,” paper delivered at Hong
Kong Democratic Foundation seminar titled "Thinking about 2007," October 21, 2000. See
.
13 Joint Declaration, para. 3(5) & Annex I, art. XIII.
14 Basic Law, art. 159.
15 Hong Kong Bill of Rights Ordinance, No. 59 (1991) reprinted in 30 Int’l Leg. Mats.
1310 (1991); International Covenant on Civil and Political Rights, 6 Int’l.Leg. Mats. 368 (1967).
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