Bearing in mind the goal for electoral reform to ultimately achieve universal suffrage as smoothly as possible whilst reconciling the needs of Hong Kong society, the government should avoid controversy by concentrating on delivering breadth of representation in the EC/NC as given in Article 45 of the Basic Law in the first instance. We should seek piecemeal adoption of the NPCSC decision. Once the foundation is laid, then introduce universal suffrage for the next CE election in 2022. Until then, the nomination threshold to become a candidate should remain at 150 votes.INTRODUCTION
The current round of reform is long overdue, as universal suffrage has been promised to the Hong Kong people since before the transfer of sovereignty from the United Kingdom to the People's Republic of China. For many, the wait has been frustrating because its achievement seems to be like a moving goalpost. There was much brouhaha and intense lobbying during previous bouts of reform, but the end result in terms of the impact on improving governance has been decidedly underwhelming.
Hong Kong faces an uncertain road ahead politically due to increased polarisation in society, an escalation of economic and social ills. The decision-making processes of local government and of the Chief Executive (CE) in many areas of policy appear to have ground to a halt in the face of an irreconcilable set of constraints. The happiness quotient in the grass roots of society have dropped as the government's priorities appear to neglect certain stakeholder groups in Hong Kong. Citizens feel extreme discontent because they feel that the government is unaccountable and unresponsive.
The root cause of problem is said by observers to be the government's lack of legitimacy, and the apparatus has a deficit in democratic accountability – only half of the Legislative Council can claim to have been democratically elected according to international norms. There may be some scrutiny of government within Legco, but it is limited and buttressed by the in-built over-ride. While parties including the central government (via their numerous proxies), the business lobbies, and other vested interests have a say in the CE's appointment, many other stakeholders in Hong Kong society are not enfranchised. Recent events have shown that the Hong Kong government not only cannot cope with the symptoms of its ills, and is unwilling to address the declining confidence in and credibility of the HK governance system. Now, the stability of Hong Kong is severely impacted. Although Hong Kong supposedly enjoys the "high degree of autonomy" under One Country, Two Systems, it appears that Hong Kong's political leaders have no strategic vision. They are perpetually looking over their shoulders. We still stumbling down the road that Lu Ping promised in 1993:
"How Hong Kong develops democracy in the future is a matter entirely within the sphere of Hong Kong's autonomy, and the central government cannot intervene."I do not doubt the sincerity in Lu's words, but many would argue that Hong Kong in reality enjoys little autonomy, or this may be due to the fact that the city's leaders are incompetently afraid to make good on Lu's promise to Hong Kong and the international community.
In terms of political ambiance, there is a crisis of legitimacy of governance that is exacerbated by increasingly high-handed or heavy-handed executive actions. At the time of the handover, there was at least the semblance of consensual politics, but the government approach to Legco since 2102 is markedly more confrontational. The government's legislative priorities are becoming more controversial, and it apparently feels less and less need to cooperate and cohabit with legislators of all parties. This in turn creates the distinction between "the rulers" (the Executive) and "the ruled" (all the others, including the democratic opposition) and fuels a downward spiral of distrust. Pan-democrats thus marginalised by the government, are feeling increasingly frustrated at not being able to do the job they were elected to do. Legislative work is increasingly bogged down. I feel that public theatrics and procedural wrangling serve nobody's interests, least of all a group who depend on public vote for their political legitimacy – one must question why they feel they have to resort to these means.
At the grass roots level, daily life is a huge struggle as incomes fail to keep up with the cost of living. Harmony is strained, and hostility towards mainlanders and mainland integration is mounting. Distrust of the motherland is rising due to badly-handled integration policies or a conflict between Hong Kong's "high level of autonomy" and the need to cooperate with our brethren on the mainland. Discontent is rising. The government becomes more and more desperate to quell protests and other manifestations of this discontent in an increasingly authoritarian fashion. The government does not appear to have either the will or the means to tackle the underlying political issues, and this is compounded by policy errors because they are out of line with the thinking and needs of the citizenry. Law and order and the rule of law appear to be breaking down; State-sanctioned violence against ordinary citizens is increasing: political impasse on one hand generates extreme frustration, and increasingly brutal police actions complete the vicious circle.The citizenry is feeling increasingly oppressed.
Context:
On the most fundamental level, the problems in Hong Kong today are caused by a political structure that does not and cannot respond to local needs and aspirations, and those problems can only be solved by changing that structure. The necessary elements to achieving that goal are already written into the Basic Law. Article 45 of the Basic Law states:
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 Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.Furthermore, Paragraph 4 of Annex 1 (amended) states:
Candidates for the office of Chief Executive may be nominated jointly by not less (sic) than 150 members of the Election Committee. Each member may nominate only one candidate.COMPOSITION OF THE NC
We must tackle two fundamental failures of the composition of the EC now rather than later. Notwithstanding, the government is seeking to transform it unchanged into the NC. The fundamental issues are the breadth of representation and the coherence and transparency of the election process before it becomes the NC.
Principle of broad representation:
I believe that the principle of broad representation is the paramount consideration in forming the Nominating Committee (NC) and will bestow legitimacy of governance. However, I feel that the consultation document (including the decision of the NPCSC of 31 August 2014) fails to address this issue in any meaningful way. Although it is important to achieve within the NC a balance within society stakeholder groups (through the relative number of NC seats of each sub-sector within the sector, and amongst the four sectors), the number of seats is not the absolute determinant of broad representation. The Selection Committee which started off with 400 seats has now become the Election Committee with 1200 seats, but I would argue that there has been no meaningful increase in the breadth of representation during each increase.
I would agree with CY Leung that Broad Representation ought not to be a pure "numbers game". It is not simply about the number of seats in the EC/NC nor how many seats in each sector or sub-sector per se. As the current structure stands, there would be no meaningful increase in representativeness however big the electorate of the NC is. This is unless that electorate is enlarged to encompass a large fraction of the Hong Kong adult population. In other words, representativeness is not determined by whether there are 100 or 800 seats in each sector, but about the underlying equity and transparency in filling these seats (the election process). It is necessary for the system that elects the Chief Executive to be fair and transparent. Only in that way will it secure the buy-in or endorsement of the general public, and any leader elected from such a system can be confident that he/she enjoys a strong mandate to govern. In the above vein, I would assert that the electoral reforms voted through by Legco in 2010 did not contribute to any meaningful increase in representativeness nor legitimacy in governance.
According to my calculations, for the 2011 EC elections, the number of electors (physical and corporate) per seat were as follows:
- Sector I : 89.4
- Sector II : 681.3
- Sector III : 58.4
- Sector IV : 2.3
Important gains can be had by widening the franchise within in the first two sectors. The composition of the first and second sectors appears to need updating to reflect the actual structure of our economy since the EC concept was introduced in the draft Basic Law. I would dispute whether the first EC sector was ever correctly represented the weighting in our economy, but that is now moot. It is clear that since the 1980s, the Services sector (Financial Services, Tourism, etc.) have increased their share at the expense of industrial production, rendering that original EC structure completely obsolete. The third sector is governmental and NGO, and may also be overweight in proportion to its share of the population served. Whilst one could argue that the weight of each sub-sector in EC should be done on the basis of its share in GDP, to do so would ignore the contributions of other important sectors such as medical, social welfare and the arts that have a more "support" role for the economy. Of course, other than weighting the sectors by GDP, weighting by population engaged in each sector of activity may be more relevant and help the economy develop. I am not philosophically opposed to the four sectors not having an equal number of seats.
To achieve reasonable political weighting of sub-sectors, it is only proper to reflect the economic weight or each, whether by percentage of GDP or percentage of the population engaged in the various sub-sectors.
The election process for NC sub-sectors
A second problem arises due to the current design of the EC sub-sectors. There is no uniformity in their make-up or methods of filling EC seats – some sectors have corporate voting and others not; some have electorates of thousands, but many have only a handful of electors. Thus although the government claims a broad base, there is a huge variability of eligibility and transparency of the "elected" members from sub-sectors.
As a result of these deficiencies, there is a genuine legitimacy deficit, and it is regrettable that the 2017 consultation document offers no substantive improvements in uniformity for the EC/NC. In my view, election methods all sectors should be made uniform: corporate voting should be abolished, and any adult citizen ought to be given the right to vote in the sector in which they are economically engaged in so that, for example, all estate agents would be allowed to vote in the Land and Construction EC/NC sub-sector elections or similar.
Compliance with International Covenant on Civil and Political Rights
Universally accepted political rights includes reasonable rights to stand for elections. The consultation document regrettably negates this important aspect, but such commentary was made in "On the Right to Vote", the editorial on the front page of the Xinhua Ribao on 2 February 1944:
In a genuine universal suffrage system, not only must the right to vote be 'universal' and 'equal', but the right to be elected must also be 'universal' and 'equal'... Not only must people enjoy the equal right to vote, they must also all enjoy the equal right to be elected ... Broadly speaking, the right to vote already includes the right to be elected ... If the right to be elected is restricted, the right to vote is also being restrictedAlthough functional constituencies is not a universal concept in democratic elections, I feel that the notion of it as determined for the EC/NC sub-sectors may still be incompatible with the concept of universal suffrage. The key here is that each citizen has equal right to participation. Hong Kong is a signatory to the International Covenant on Civil and Political Rights, which makes this stipulation, the method of forming the Nominating Committee must comply. In light of the above arguments, it is my view that the threshold for nomination should remain at 150 EC/NC votes.
So if there is a precondition as to who can be elected, or the authorities put forward specific candidates, then even though the right to vote has not been limited, voters have been turned into tools of the election.
Article 25 of the covenant states:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions...Furthermore, Article 26 states:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.The lack of unreasonable restrictions to stand for election, as stated in the Covenant, is fundamental aspect that ought not to be ignored when considering Hong Kong's democratic development. I strongly believe that individual citizens can and do have valid interests as stakeholders of Hong Kong, and are capable of reconciling dual allegiances in separate elections for separate objectives. With properly defined and weighted EC/NC as well as functional constituencies, and a one-man one-vote electorate. The EC/NC will in essence be an election every five years on a single issue. Each EC/NC seat will then objectively represent the views of its constituents to give mandate to a candidate (or party).
In my view, it is right that business owners should be represented in EC sub-sectors and Functional Constituencies, but "broad representation" means that electorate pools must be representative of all stakeholders. Although I am philosophically a free-market capitalist, I strongly disagree with disenfranchising certain citizens from merely on the grounds of their income levels. Many will have worked in their respective sectors all their working lives, and I feel it is extremely unfair not to recognise their interests in and commitment to those sectors.
Using the last EC sub-sector elections that took place in 2011 as a benchmark for the Nominating Committee (NC) to be created, very significant imbalances in composition are apparent:
For example, within the first sub-sector, the banking and financial services sectors are main employers in the city and contribute significantly to our GDP. However, Finance and Financial Services have 125 and 539 registered voters at the EC respectively, and both have 18 EC seats. Similarly, we have a huge Insurance sector, with AIA, AXA, Manulife employing tens of thousands, yet only have 121 registered electors at EC and 18 seats. Real Estate and Construction, another important sector for both employment and investment, with 754 registered electors, has been allocated 18 seats. On the other hand, Hong Kong's industrial base has been in terminal decline since the 1970s, and is minuscule compared with any of the abovementioned sections; manufacturing now represents 1.4% by GDP and 3.4% of the local workforce, yet has 1305 registered electors and 36 EC seats. Agriculture and Fisheries sub-sector, which is another sunset sector and contributes only 0.1% to the GDP of Hong Kong, is grossly overweighted yet has been allocated 60 EC seats. (sources:2011 Election Results and Table 035 : Gross Domestic Product (GDP) by economic activity at current prices Table E024: Employed persons by industry (1) of main employment (2) , age and sex)
As further examples, Import-Export, Industrial, Real Estate, Textiles, Agriculture and Religious all had exclusive electorates and all their EC seats went uncontested. On the other hand, Accountancy, Education, Health Services have thousands of electors and the elections are highly competitive. To increase representativeness and competition of election platforms, there should be a minimum threshold size for sub-sector electorates. A sensible quota would be of the order of 3,000 electors per EC/NC seat, based on an electorate of 5 million.
There are also representational oddities in the EC/NC, and it is unclear to this contributor what role in our economy Hong Kong Chinese Enterprises Association, with only 321 electors, plays to justify 16 EC seats, and the Employers' Federation which has access to 16 seats. I would also question whether or not there is double-counting because the member companies of these employer organisations would almost certainly belong to business sectors which already have EC seats.
Proposed mechanism:
The government has not proposed any major revamping of the EC in the consultation document despite acknowledging its imbalance, citing the complexities that it does not wish to tackle. However, the government suggests that the number of sub-sectors may be increased in the future. It is clear that the complexities MUST be tacked of there is to be any meaningful increase in representativeness of the EC/NC by which our Chief Executive is elected. The sub-sectors within each sector ought to be completely re-weighted. All voters should be physical persons who are HK permanent residents; corporate voting must be eliminated. I feel that recalibrating the EC/NC mechanism to achieve broad representation is primordial for the legitimacy of the process, and should be given priority over one-person-one-vote of the CE election.
I believe that the four EC/NC sectors overall should be re-weighted so that the first and second sectors make up two-thirds of the total. For the first three EC/NC sectors, I would suggest the number of seats that each sub-sector gets should be proportional to the number of eligible voters in that sub-sector.
How to create the electoral roll for NC sub-sectors (see appendix)
All Hong Kong citizens over the age of 18 should be entitled to vote in EC/NC elections in one of the first three sectors. They will each have only one vote in the economic sub-sector or functional/occupational sub-sector which most closely fits their activity. All employers in Hong Kong will be mandated to submit corporate returns one year prior to the EC/NC sub-sector election to the Electoral Affairs Commission (EAC), giving information about their employees' names and HKID numbers to build up the electoral database.
Gradual and orderly progress
In light of the provision in the Basic Law for the electoral reforms to be introduced in a "gradual and orderly" manner, the current round ought not to be viewed as the end game. Furthermore, in view of the considerable controversy of introducing one-person-one-vote whilst undertaking little or no effort elsewhere to increasing breadth of representation, I would strongly urge suspending the "universal suffrage" part of the process until there has been more concrete and substantive reform of the structure of the EC/NC.
Having said that, provided the EC/NC is adequately reformed along the principles outlined in this document, the EC/NC can itself be the basis of indirect elections of the chief executive without taking the additional step of validation by the entire electorate.
Therefore, although there is the ultimate aim in the Basic Law to see a Chief Executive elected by universal suffrage, we should also remember the much-argued provision for "gradual and orderly progress" in democratic development. I have argued above, and would continue to summarise, that the ideas proposed in this document are an important foundation to our democracy and constitute a mid-way stage to reaching the declared goal. Without laying proper foundations, the concept of one-person-one-vote election for Chief Executive is "putting the cart before the horse" in common parlance, and the democratic nature is in itself meaningless if there is a . can be delayed until the next round (i.e. for the election in 2022) will be elected by the reformed Election Committee.
Appendix 1: Creating the electoral roll for NC sub-sectors
Principles:
- All Hong Kong permanent residents over the age of 18 would be entitled to vote for EC/NC representatives
- They will each have only one vote in the economic sub-sector or functional/occupational sub-sector to which they most closely identify.
- The number of seats in each sub-sector of any given sector within the EC will be proportionate to the total number of registered voters in that sector.
- A quota for the size of constituencies should be imposed, and maxima and minima determined. Given that there are anything from 3.5 million to 5 million individuals of voting age in HK, each EC/NC seat should each have between 3,000 and 4,000 potential electors
- the Electoral Affairs Commission (EAC) to build up the electoral database for EC/NC entitlement
Procedures:
- All employers in Hong Kong to submit corporate EC/NC returns to the EAC
- EC/NC returns are submitted every five years, one year prior to the EC/NC sub-sector elections
- EC/NC returns will include details of each full-time or part-time employee (names and HKID numbers)
- Employer companies will identify on their returns the business sector in which they operate.
- Upon receipt, EAC merges the data into the electoral register, so that each voter would be tagged with a "default" sub-sector in the relevant field for NC elections.
- The EAC will then send an update to the voter at his/her last known contact address, say nine months prior to the sub-sector election, to confirm registration and the EC/NC sub-sector affection.
- The voter would then be enrolled into the employer's sub-sector default
- The voter whose employer sub-sector is in the first sector may request to exercise their vote in a sub-sector of their choice within the second or third EC/NC sectors if they feel it fits most closely with their activity.
- Once validated, voters will be notified of EC sub-sector elections in exactly the same way as for District Council and Legislative Council elections.