untitled by Civic Exchange

Submission by Civic Exchange on the Fifth Report of the Constitutional Development Task Force

I: Overall Assessment Overall, we find the Fifth Report disappointing especially in view of the fact that it is such an important document setting out the electoral proposals for 2007 and 2008 that will also impact on the further development of constitutional reform in Hong Kong. While the Fifth Report provides summaries of views received during the public consultation, it provides no analysis of them. Paragraph 5.01 states that the responsibility of the Task Force is to find “a point of balance … which would be acceptable to all parties”. We believe the Task Force should have used clearly articulated principles to measure the strength and relevance of the views received. The Fifth Report appears to regard all views to be equally valid. If indeed all views were equally valid, then it would in fact not be possible to formulate a package “acceptable to all parties” as some of the views are in fact opposing views. This leads to the impression that thorough analysis and the setting out of well-explained principles and rationale in making proposals for constitutional reform is not the approach adopted by the Task Force. Instead, the process is based on matters that cannot be fully explained or acknowledged. This impression is reinforced by Paragraph 5.02, which lists the “principles” the Task Force followed in formulating the proposed package. The most overriding of these in practical (and constitutional terms) is that it “can be acceptable to the Central Authorities”, and yet it does not explain the criteria for acceptability.

II: Principles in Evaluating the Fifth Report In responding to the proposals made in the Fifth Report, the Task Force should have been guided by Articles 45, 68, 39 and Annex I of the Basic Law, as well as Article 25 of the International Covenant on Civil and Political Rights, which has been incorporated as a part of the Basic Law under Article 39. It should have also been guided by Article 21 of the United Nations Universal Declaration on Human Rights, to which the People’s Republic of China is a signatory. The Decision of the Standing Committee of the National People’s Congress of 26 April 2004 (“the Decision”), must of course also be included in its deliberation but the Fifth Report appears to ignore the HKSAR Government’s obligation to conform with these other legal requirements as well as with the Decision made in April last year.

III: Method for Selecting the Chief Executive z

Lack of rationale

In respect of the Election Committee, the Fifth Report proposes to increase the number of EC members from 800 to 1,600 as per paragraph 5.05. In relations to the first three sectors in 5.05 (i), (ii) and (iii), the Fifth Report does not explain the rationale why the numbers have been so increased, except to say that in the public responses it had received during the consultation process more people proposed increasing the total number of Election Committee members to 1,600 than other numbers. We do not consider this a proper or

sufficient rationale and urge the Task Force to provide a fuller explanation in order to comply with requirements of democracy and openness as per Annex I (3) of the Basic Law.1 z

Corporate voting not abolished

No justification has been put forward to expand the corporate vote among the first three sectors. We maintain this is contrary to the established principle of universal suffrage. Indeed, corporate votes should be abolished altogether. We find it disingenuous that the Fifth Report remarks that those who advocated the abolition of corporate voting had not provided details on “how to implement” the abolition even though Paragraph 3.18 notes the Task Force had received views that voting rights could be given to responsible persons of companies or corporate bodies. z

“Public mandate” of District Councils

As for 5.05 (iv), a rationale for the proposed expansion has been provided in paragraph 5.08: “The Task Force proposes including all District Council members in the Election Committee. The rationale behind the proposal is that District Council members have a public mandate, and that they are in a better position to understand and reflect the views of the general public on day-to-day livelihood issues.” Article 97 of the Basic Law makes it clear that the District Councils have a highly restricted mandate that is advisory in nature and with a narrow set of responsibilities. We are unconvinced by this rationale set out directly above especially given the inclusion of the appointed District Councillors. While the Fifth Report notes that 80% of the District Councillors have been returned by election it ignores the fact that 20% of them have been appointed. No justification has been provided as to why appointed councillors are included. The overall rationale (above) is that the District Councils have a public mandate. Appointed members cannot be said to have any such a mandate, however. Their appointment is in clear conflict with the rationale given. There is also an unacceptable implication in the phrase “in a better position to understand and reflect the views of the general public on day-to-day livelihood issues”. The obvious inference is that they would be in a “better position” than directly-elected members of the Legislative Council. The consequence of such an assumption is that the HKSAR Government’s proposal is likely to increase rather than modify political polarisation. Instead of encouraging the role of legislators who are elected by a broad electorate rather than on the basis of supposed socio-economic classes, this proposal would create a new functional constituency whose role may be “populist” in the sense that its justification is that its representatives would be better placed than any others to speak for the “general public on day-to-day livelihood issues”.

In respect of Annex I (3) of the Basic Law, there is the clear emphasis that in considering the selection method of the Chief Executive, the various sectors making up the Election Committee “shall be prescribed by and electoral law … in accordance with the principles of democracy and openness”.

Fundamental alteration of role of the District Councils

By giving all members a role in selecting the Chief Executive, this clearly gives them a political role which arises directly out of their being the District Councils members. District Councillors will in fact make up more than 30% of the membership of the Election Committee. We believe the proposal in the Fifth Report fundamentally alters the role of the District Council as envisaged by the Basic Law and this proposed change has neither been fully discussed nor acknowledged in the Fifth Report. (Article 97 states, at the outset, that: “District organisations which are not organs of political power may be established…” (emphasis added).) z

Civic Exchange’s previous proposal

We assume Paragraph 3.11 is the summary that includes the proposals made by Civic Exchange during the Fourth Report’s consultation. After fully digesting the Fifth Report, we believe our previous proposal still has merit. It also complies better with the principles we have set forth in Part II above, including complying with the Decision of 26 April 2004. z

Abolish appointments to District Councils

We would like to take this opportunity to call for the abolition of appointments to the District Councils. Furthermore, if the HKSAR Government pushes ahead with the reform package contained in the Fifth Report, we urge the HKSAR Government to only allow the elected District Council members to select the Chief Executive in 2007. z

Nomination

Annex I (4) provides that “Candidates for the office of Chief Executive may be nominated jointly by not less than 100 members of the Election Committee”. As such, the threshold can be maintained at 100. It is preferable in our view to have a lower threshold for nomination, which will likely encourage more candidates to stand. z

Political affiliation

The rationale contained on page 33 of the Fifth Report on the reasons that the Chief Executive should not have any political affiliation is not a sufficient rationale. The previous Chief Executive, the current Chief Executive, as well as ministers and government officials had from time to time stated that the government does not have a government party in the legislature. They made such statements in reference to the difficulty the executive had in mustering votes to get policies and legislation through the legislature. On the basis that the Task Force is unwilling to discuss the matter in several rounds of constitutional development reports, there is clearly no appetite for the HKSAR Government to consider the matter of designing a political system based on party politics even though it refers to developing political talent and makes frequent references to promoting political stability and good governance. No where has there been any official discussion on how these issues are related.

Of course, when the Task Force’s observations on this issue are examined in the context of how the HKSAR Government actually functions, the question of political affiliations cannot be ignored. Members of political parties are included in the Executive Council. A former prominent member of a political party which is represented in the Executive Council was appointed a Policy Secretary and then Financial Secretary. The fact that he left the party only upon his first appointment does not mean that he has no party affiliation. He is widely perceived to remain close to his former party. Similarly, the Chief Executive has proposed “political” appointments in support of “ministers” in order to groom individuals for future public office. There is thus an obvious danger for the future that individuals seeking to run for the office of Chief Executive will be seen as only nominally without party affiliation but as, in practice, having close links to a political party which contests seats. At the very least, the HKSAR Government should clarify what is meant by “affiliation”. z

Uncontested selection

The one proposal we wholly endorse is the recommendation that an election should take place even if there is only one candidate running for the office of Chief Executive. We look forward to the HKSAR Government releasing the relevant mechanism.

IV: Method for Forming the Legislative Council z

Corporate voting not abolished

No justification has been put forward to expand the corporate vote. We maintain this is contrary to the established principle of universal suffrage. Indeed, corporate votes should be abolished altogether. We find it disingenuous that the Fifth Report remarks that those who advocated the abolition of corporate voting had not provided details on “how to implement” the abolition even though Paragraph 5.32 notes the Task Force had received views that voting rights could be given to responsible persons of companies or corporate bodies. The Task Force interestingly dismisses other suggestions to include employees on the basis that most of the functional constituencies would become in practice “employee constituencies”, which “would not be consistent with the original intention of setting up functional constituencies”.2 z

Civic Exchange’s previous proposal

We assume Paragraph 4.11 is the summary that includes the proposals made by Civic Exchange during the Fourth Report’s consultation. After fully digesting the Fifth Report, we believe our previous proposal still has merit. It also complies better with the principles we have set forth in Part II above, including complying with the Decision of 26 April 2004.

We have noted the difference in Paragraph 3.19 relating to corporate voting as it relates to the Election Committee for the selection of the Chief Executive and Paragraph 5.32 as it relates to functional constituencies, and the lack of explanation and justification for the difference.

V: Timetable for Universal Suffrage We note the Draft Motions in Annexes B and C of the Fifth Report do not contain any proposals on future milestone events for the introduction of universal suffrage. In view of the clear public demand for a time table for Hong Kong to achieve universal suffrage, the HKSAR Government should consider working with the Central Authorities to provide a timetable for consultation. We wish to also emphasize that using the principles stated in Part II above, universal suffrage necessarily means also equal suffrage and that functional constituencies and the election committee system as currently envisaged must be replaced.

VI: Term of Office of the Chief Executive We note the Fifth Report indicates that its proposal on the method for selecting the Chief Executive can be implemented “through local legislation and does not require amendments to Annex I to the Basic Law”. We agree there is authority to permit clarification of the Basic Law in local legislation. We note the Interpretation by the Standing Committee of the National People’s Congress dated 27 April 2005 states that: “… prior to the year 2007, when the Chief Executive is selected by the Election Committee with the 5-year term of office, in the event that the office of Chief Executive becomes vacant as (he/she) fails to serve the full term of office of 5years as prescribed by Article 46 of the Basic Law, the term of office of the new Chief Executive shall be the remainder of the previous Chief Executive; …” The Fifth Report proposes to apply this interpretation of Article 46 to the 2007 elections. Surely, this would mean the Task Force is proposing an interpretation and not a clarification of Article 46 in local legislation. If we are correct, this would be highly risky as it would be an attempt to amend the Basic Law by amending Annex I and bypassing the procedures provided in Article 159 of the Basic Law. We do not recommend this course of action.

30 November 2005