Posted:  April 16, 2010

 

The government presented its political reform report to Legislative Councilors at their weekly Wednesday meeting on April 14.  After evaluating public responses to the government’s reform proposals unveiled last November, Chief Secretary Henry Tang proclaimed the exercise a success and pledged to proceed accordingly.  He allowed for the possibility of only minimal changes to the original draft.

The popular protest that has been building since last summer must now run its course since the entire democratic camp has naturally given Tang’s report a collective thumbs-down.  This anticipates an uncertain future for the government’s reform package, which cannot be implemented without passage by a two-thirds Legislative Council (Legco) majority. The vote will likely be held in July before the summer recess.  Functional Constituencies (FCs) are the main stumbling block and official failure to address it is the chief cause of democratic opposition.

As mentioned in several previous posts, the latest proposals have split Hong Kong’s democracy movement, at least in terms of its response.  The terms are radical and moderate and the radicals are now saying “we told you so.”   Young Turks have been talking for years about the value of a dramatic gesture and some finally decided to give it a try.   Five legislators, one from each of Hong Kong’s five election districts, resigned together in order to trigger simultaneous special or by-elections throughout the territory.  All five, from the Civic Party and the League of Social Democrats, are now running for re-election to the seats they have just vacated.  Election Day will be May 16 and supporters are promoting it as a de facto referendum in an attempt to mobilize popular support for directly-elected local government.  Referendums are not specifically forbidden here but local authorities have always discouraged the idea and Beijing is now condemning this one as a populist challenge to its authority.

Moderates decided to seek dialogue with Beijing instead, also a long-debated goal.  Their new Universal Suffrage Alliance, now with 13 unions and groups plus the Democratic Party, has recently finalized bottom-line demands (http://www.universalsuffrage.hk/?p=25&lang=en).   But Beijing reportedly did not like this option either because radicals and moderates alike are united around one common objective:  “abolish the Functional Constituencies.”   These strange representative bodies were designed especially for Hong Kong and while such arrangements are not unique in the annals of human political history, they are alien to most contemporary experience.

The government’s proposals for the 2012 elections aim to retain all the existing 28 FCs in their current unreformed state and add five new ones (www.cmab-cd2012.gov.hk).   Except for a few hints, there are no official indications as to how these might be modified to achieve Beijing’s promised goal of universal suffrage legislative elections by 2020.   The long-term implications of the five new FCs remain largely hidden from public view (March 31 post).  In contrast, the old FCs have been around for 25 years and answers to the basic questions about origins, beneficiaries, and prospects for the democrats’ goal of directly-elected local government are well known.  The only real question is why the government’s proposals are totally silent on FC reform.

 ORIGINS

One reason the FCs are so resistant to change is that they are so deeply rooted in Hong Kong history.  The specific design and name dates back only to the mid-1980s, when elected representation was finally allowed, albeit in carefully rationed doses, but the concept is as old as British Hong Kong itself.   Colonial legislatures were always initially composed of government officials and people appointed by them to represent the main economic interests of settlers, or in Hong Kong’s case, traders.  Elected representation evolved from this original base, which in Hong Kong was provided by the chamber-of-commerce.

The difference between Hong Kong and all other British colonies was that Hong Kong’s Legislative Council (Legco) did not progress much beyond the founding-fathers stage until decades after all Britain’s other colonies had moved on to win their independence.  For over a century, legislative appointees were all wealthy established members of the economic elite.  This practice did not begin to change until the 1970s, when a few people from different backgrounds were included.  Only after the British learned for certain that they would be leaving come 1997 did political reform begin in earnest.

Nine FCs based on occupational interests were created for the first Legco election in 1985.  Of the 12 FC legislators who took their seats that year, five represented the chambers-of-commerce, manufacturing associations, and the banking sector; three represented trade unions and social services; four were elected by professional bodies (education, legal, medical, engineering).  The 1985 council had 56 members:  22 were appointed by the governor; 10 were government officials; 12 were indirectly elected by local boards and councils; and 12 came via the new FCs.

The first direct one-person-one-vote elections, for a minority of Legco seats, did not occur until 1991.  But because political reforms began so late, Beijing naturally saw them as a British ploy to retain influence after 1997 and demanded a say in how they could proceed.  Beijing’s restrictive formulas were written into Hong Kong’s transitional Basic Law constitution, promulgated in 1990, and it is these formulas that local democrats are struggling to liberalize.  At present half of Legco’s 60 members are elected by FCs.  Pro-democracy candidates regularly win 60% of the vote for the other half, that is, the 30 seats filled by direct election in the five geographic constituencies.  FC candidates are a very different story.

WHO DO THEY REPRESENT?

The easiest way to explain FCs is simply to list them (with the number of seats they represent in parentheses).  All except the final seven routinely elect conservatives or pro-Beijing loyalists.  Currently, pan-democrats hold only four FC seats (education, legal, health care providers, social workers).

Federation of Hong Kong Industries (1)

Chinese Manufacturers Association (1)

HK General Chamber of Commerce (1)

Chinese General Chamber of Commerce (1)

Finance, banking (1)

Finance, services (1)

Textiles/garments (1)

Wholesale/retail (1)

Import/export (1)

Insurance (1)

Agriculture/fisheries (1)

Real estate/construction (1)

Architecture/surveying (1)

Engineering (1)

Transport (1)

Tourism (1)

Catering (1)

Sports/culture/publications (1)

Labor (3)

Rural Council (1)

District Councils (1)

Education (1)

Legal (1)

Accountancy (1)

Medical doctors (1)

Health care providers (1)

Social workers (1)

Information technology (1)

HOW ARE THEY ELECTED?

          The 30 FC representatives are elected by a total of 229,861 voters including 213,777 individuals and 16,084 corporate bodies.  This contrasts with 3.4 million registered voters for the 30 directly-elected seats.

Critics like to invoke comparisons with the “rotten boroughs” that figured as favorite targets during Britain’s own, 19th century, struggle for universal suffrage.  Hong Kong’s equivalent is the practice of uncontested FC elections, whereby the powerbrokers decide among themselves beforehand who should represent them.   In the last, 2008, Legco election, 14 seats were uncontested including the three labor seats and those reserved for industry, banking, financial services, real estate, culture, and catering.

Eight of those uncontested seats are from among the 10 FCs that have only corporate voting and account for 12 legislators.  This means that individuals working within those sectors do not vote; only management bodies do.  For example, the financial services representative was convicted of fraud a few years ago and did jail time, but his constituents like him so much that they celebrated his return and have since twice re-elected him to represent them.  He owes his seat to 578 corporate entities including stock exchange brokerage firms and the Gold and Silver Exchange Society.

In some cases, a single captain of industry or commerce with a controlling interest in many separate companies can control more than one corporate vote.  The rules forbid any one individual from casting more than one corporate FC vote, and more than one individual vote in FCs that allow them.  But this means that some 1,800 individuals actually have three votes:  one in a geographic constituency, one corporate vote in a FC, and one individual vote in another FC (South China Morning Post, Nov. 16, 2009).

It also means that the owners of multiple companies can select whoever they like to cast the votes allocated to their various enterprises.  Yet these are allowed to register as individual corporate electors in different constituencies regardless of ownership.  Mega-tycoon Li Ka-shing reportedly controls at least 20 corporate votes in several different FCs.  No one knows for sure.  The full election register is open for public viewing at Hong Kong’s Registration and Electoral Office, but information is limited by strictly enforced rules that forbid the use of all reproductive devices including even pencil and paper, under threat of criminal prosecution.

Ten constituencies allow only individuals to vote.  Democrats do best in these contests.  Others allow voting by a mix of corporate bodies and individuals.  Of the seven FCs where democratic candidates have won, all but Information Technology allow only individuals to vote.

HOW DO THEY FUNCTION?

First and foremost, FCs serve as a fail-safe mechanism deliberately designed when the Basic Law was being drafted to check and balance the populist instincts of directly-elected legislators.   The idea is hardly new, but Britain’s colonial legislatures could ultimately appeal to the British Parliament for redress and reform precedents.  Hong Kong’s Basic Law is locked in place and maintained by a hard-line government that regards all popular initiatives as a threat to the communist-led mainland political system.   Drafters of that law, all Beijing appointed and overwhelmingly conservative, considered a dual chamber system.  The upper house could then be used by its FC-type members to check their lower-house democratically-elected counterparts.  Ultimately, it was decided to build the two-chamber concept into a single chamber.  The result is Legco’s split-voting system.

Government bills and measures need only receive a simple majority of all legislators to pass.  But any amendment or motion moved from the floor by Legco members themselves must receive majority support from both FC and directly-elected legislators, counted separately.   For example, a motion by Civic Party leader Audrey Eu urging public participation in the coming referendum was defeated after failing to win majorities from both groups.  Her motion received the necessary support from directly-elected legislators:  11 to 7; but was opposed by FC legislators: 18 to 4.   A majority of all legislators present may actually vote for a motion but it can still fail without majorities in each of the two groups.

Despite many calls for the abolition of Legco’s simulated two-house arrangement, Beijing’s decisions continue to stipulate that it must remain unchanged. Still, split voting is the lesser problem.  More important are the rules that strictly limit Legco members from initiating anything but non-binding motions and some amendments to government bills.  This is another key feature of Hong Kong’s “executive-led” system, as spelled out in Article 74 of the Basic Law.

The Catholic Monitors, a religious group with secular interests, report annually on legislators’ performance.  Those from the FCs invariably chalk up the worst records whether in terms of motions and amendments tabled, speeches given, questions asked, or votes recorded (www.afcnow.hk/; Ming Pao Daily News, Oct. 5, 2009; South China Morning Post, July 10, 2009).  Timothy Fok, who has been representing sports and culture since 1998, has the worst all-time record.  Fok is a son of the late tycoon Henry Fok who was noted for his mainland and Hong Kong investments, philanthropies, and cross-border political influence.  When asked, legislator Fok says attendance is too simple a standard to judge him by since he is constantly on the go looking after the interests of his constituents.  He is right, of course, given Legco’s limited powers and his role as high profile promoter-in-chief for Hong Kong’s leisure-time business interests.

OBSTACLE OR HELPMATE?

The question nevertheless remains:  why are official proposals silent on FC reform?  How can the Hong Kong government continue to preside over so anachronistic an arrangement without offering a single suggestion for its improvement?  The only excuse, written into the official Consultation Document, is that FCs are “too complicated” and “would not be easy” to change because it would “involve the interests of many different sectors and individuals.”   Actually, the FCs would be easy to change.  Activists and academics have been preparing their arguments and recommendations for the past two years in anticipation of what they see as this last opportunity for their political generation to affect reform.

The most obvious and common target is corporate voting.  The government could begin by opening up its corporate election register to the light of day, allowing the public to see who controls how many corporate votes, and disallowing separate registration by more than one company within a conglomerate.  There have been many related suggestions.  And to the ambitious democratic designs for gradually phasing out FCs altogether (March 15 post), has been added a similar plan from the Universal Suffrage Alliance of moderate politicians and activists.

Yet the government is ignoring all these designs and proposals even in the face of growing public anger over the cozy relationship between government and big business.  As a result, say protesters, passage of minimum wage and fair competition laws have been blocked for years.  In their unrestrained zeal to mazimize profits, minimum common sense standards for the construction and sale of residential housing are not being met by property developers, and are not enforced.  Public concerns over the cost of the high-speed railway were ignored until they exploded in the January post-80s generation protest, and so on.

In fact, there can be only one reason for the government’s silence and that reason is related to the still not officially acknowledged long-term plans for the “new” FCs.  The government evidently does anticipate abolishing the old FCs, but not until it can replace them with an equally “safe” block of votes in Legco.  The old FCs are thus being allowed to remain in place as a protective cover until the alternative has been safely established.

As indicated by recent hints and suggestions, between now and 2020 the government’s plan is to increase the number of legislators indirectly elected by the District Councils, which are dominated by pro-Beijing politicians and their allies (March 15 and 31 posts).  FC councilors would gradually be replaced by these indirectly elected legislators.  And as indicated further, in its just released summation report, the government aims to forge ahead with its own District Councils plan that ignores the main democratic demands for more competitive electoral arrangements at the district level than those now tailor-made for conservative candidates.

In this way, all other roads are being blocked.  The old FCs will carry on as usual while traffic is gradually re-routed onto a new mainline expressway.  As for this project, it should be known not as the District Councils plan but as a People’s Congress model, leading to full integration within the Beijing-led political system.

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