Building a mechanism for discussing political reform By: Wong Mo Sze Tracy Hong Kong Baptist University Summer Intern 2001 Abstract Systems and institutions set in the Basic Law has been in operation since July 1997. During this period, many practical problems had to be solved. The Basic Law does not clearly state the electoral arrangement of the Chief Executive and the formation of the Legislative Council after 2007. This paper argues that there is an opportunity for the general public to discuss the political development in Hong Kong to help fill in the gaps. However, there is no mechanism for discussion to take place. Constructing an effective communication channel is a crucial step for Hong Kong to discuss an important issue. This paper examines whether using the form of a constitutional convention may be a useful mechanism for Hong Kong to discuss political reform.
Introduction This paper attempts to suggest a mechanism for Hong Kong to discuss political reform. The reason for reform is explained. The paper evaluates the drafting process for the Basic Law in the 1980s, which was the first time Hong Kong had any sort of mechanism for drafting a constitution. The paper examines how other countries have used constitutional conventions to help them discuss constitutional change and how those experiences may be useful for Hong Kong as we think about how to discuss such a complex issue in the coming years. In exploring such a difficult subject, the usual way of public consultation by the government (publishing a document and then calling for response) would be totally inadequate. Necessity for the political reform Does Hong Kong need to reform its political structure and process? First, the Basic Law offers the opportunity to discuss political reform. The Basic Law anticipates that there could be a major change after 2007 and refers to the ultimate aim of “universal suffrage�. Articles 45 and 68 provides for the possibility of change for how the Chief Executive (CE) and the legislature are to be elected respectively. Annex I & II of the Basic Law do not provide the method for the selection of the CE of the Hong Kong Special Administrative Region and the method for the formation of the Legislative Council of the Hong Kong Special Administrative Region and the voting procedures after 2007. There is therefore room for change. Part 7, Annex I states: If there is a need to amend the method for selecting the Chief Executives for the terms subsequent to the year 2007, such amendments must be made with the endorsement of a twothirds majority of the members of the Legislative Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People’s Congress for approval.
Part III of Annex II states:
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With regard to the method for forming the Legislative Council of the Hong Kong Special Administrative Region and its procedures for voting on bills and motions after 2007, if there is need to amend the provisions of this Annex, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People’s Congress for the record.”
Secondly, some of the processes in the Basic Law are proving to be difficult to operate in practice and pressure for change will continue to build up. For example, Article 74 in effect makes it almost impossible for legislators to propose private bills, making elected representatives and the electorate feel that legislators have limited power to affect policy. 1 Tension between the Executive and Legislative branches has heightened. 2 Article 74 provides that: Members of the Legislative Council of the Hong Kong Special Administrative Region may introduce bills in accordance with the provisions of this Law and legal procedures. Members of the Council may introduce bills, which do not relate to public expenditure or political structure or the operation of the government individually or jointly. The written consent of the Chief Executive shall be required before bills relating to government policies are introduced.
Thirdly, the current electoral system is unfair and undemocratic, bucking international trends. For example, the functional constituency (FC) election system is archaic. It gives a small number of people a disproportionate amount of influence. Moreover, some FCs are made up on companies as their constituents as supposed to humans.3 The FC system was a leftover from the colonial system, which sought to give influence to the traditional business and professional elite.4 The above are the primary reasons why Hong Kong cannot avoid political reform. So, what is the best way for holding discussions? There are two important criteria in deciding what method Hong Kong should choose. Firstly, we need to be clear about the issues we need to discuss and resolve. Secondly, we need to discuss how Hong Kong should transit from where it is now to the new system. Drafting of the Basic Law In the 1980s, Hong Kong went through a number of years to draft the Basic Law. The drafting of the Hong Kong’s mini-constitution was vested in the Basic Law Drafting Committee (BLDC), which was established by the Standing Committee of the National People’s Congress (NPCSC). It had 59 members, 36 from the Mainland and the others from Hong Kong. The Hong Kong members came from different sectors but the majority was from the business and professional sectors. A larger Basic Law Consultative Committee (BLCC) was also set up, supposedly representing Hong Kong people overall. Some of its 180 members were nominated by designated organizations.5 Despite the effort for inclusion, the drafting process drew much criticism. A key criticism was the narrowness of the BLDC as most of the members came from business and the professions. 1
Ian Holliday, “Democracy essential for SAR- but not too much”, South China Morning Post, 20 July, 2001 2 Hong Kong Legislative Council legislative document CB (2) 1141/99-00(01) 3 There are 30 FCs for example with a total electoral base of under 200,000 voters but they can elect 30 seats in LegCo, or 50% of the seats. 4 Hong Kong Legislative Council, Green Paper 5 Yash Ghai, Hong Kong’s New Constitutional Order – The resumption of Chinese Sovereignty of the Basic Law, Hong Kong University Press, 1997, p 58
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Although the wider consultative process stimulated much discussion in public, many of the views were not reflected in the BLDC. As such, its format for consultation and drafting does not serve as a good reference for building a mechanism for discussing the political reform in the future. Failure of the current consultation system The traditional way for the Hong Kong government to consult the public is through issuing public consultation papers and calling for responses within a certain period of time. This system does not always work well. The government is often criticized for having already made up its mind about what it wants to do before the consultation. It is also a passive process with little opportunity for interaction with the public. Moreover, the public may also be unenthusiastic in giving its opinion particular if there is no attempt to engage them and to make people feel their participation is crucial. Constitutional Conventions Other countries have faced the problem of having to deal with political reform. Many countries used constitutional conventions as a means for society to talk about political reform. Constitutional Convention is about bringing people together in an organized process to systematically discuss all the issues involved. During the past ten years, several countries held constitutional conventions, including Scotland, South Africa and Australia. Scotland set up a Scottish Assembly to discuss the establishment of a Scottish Parliament with the first election subsequently being held in May 1998. In South Africa’s case, it had a long and complex process that spanned three periods: from 2 February 1990 to the start of the Convention for a Democratic South Africa (CODESA) in December 1991; from CODESA to the beginning of the Multi Party Negotiation Process (MPNP) in March 1993; and finally form the MPNP to 27 April 1994. In Australia, a Constitutional Convention was held in Canberra from 2-13 February1998, whic h debated the issue whether the country should become a republic. Prior to the convention, a lot of publicity work was done to keep citizens informed. These three examples can be broken down to examine their essential components: 1. Consensus process Reaching consensus on complex issues is no easy task. There are bound to be many opinions on how to reform the political system. To decide how to reach consensus is equally complicated. How the political system should be reformed affects everyone and so the way forward should have the support of a large majority. 6 In Australia, a referendum was held for the people to decide whether the country should become a republic. After all, this is part of the democratic process. In South Africa, because there were diverse views, it was decided that an elected body should draft and adopt the new constitution. 7 2. Power and nature of constitutional assembly In considering setting up a constitutional process for discussing political reform, what it is empowered to do and its relation with the government of the day needs to be carefully worked
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Mervyn Bennun & Malyn DD. Newitt, “Negotiating justice: a new constitution for south Africa”, University of Exeter Press (1995), p 65 7 Cachalia, F., “Report on the Convention for a Democratic South Africa”, South African Journal on Human Rights 9, (1992) p 249, 257.
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out. In South Africa’s case, extended arguments took place as to whether the assembly with a 66.6% majority had the right to adopt any outcome.8 3. Structure There is no one standard model for constitutional convention. It must be designed to suit local conditions and have the support of the people. 4. Public participation Some procedures should be carefully designed in order to allow people to participate. a. Representation In South Africa’s case, there was an election to choose the representatives of the constitutional convention. In Australia’s case, of the 152 delegates, half were popularly elected and the rest appointed. Those appointed included 40 members from both the federal and state parliaments and 36 others represented such interests as the Aborigines, Torres Strait Inlanders, youths as well as to ensure there was a proper balance between men and women. 9 b. Information dissemination and collection of public opinion It is essential to keep the public informed. In South Africa, the constitutional assembly published a newsletter “Constitutional Talk” for public distribution. The issues were debated on national television and phone-in programmes. More than 1,000 workshops, briefings and meetings were held throughout the country including in rural areas. The government also used the Internet to display draft texts, reports and minutes of the proceedings. 10 In Australia, district and community meetings were encouraged. For example, there was a womenorganized convention. The Internet was also extensively used. Values behind Constitutional Convention There are distinct values behind the idea of constitutional conventions. Firstly, it embodies the value of political equality. 11 It allows everyone to play a role in decision-making and so builds a sense of community. Secondly, by providing an open process of debate, citizens and their representatives must listen and consider a wide range of views, which may be very different from their own and reflect on what is best for the common good. 12 It therefore embodies the value of non-tyranny and deliberative democracy.13 Thirdly, the process builds a society that is willing to share, learn and cooperate among people from different walks of life. It embodies the value of egalitarianism.
Benefits gained from holding constitutional conventions The benefits of holding constitutional conventions are:
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Mervyn Bennun & Malyn DD. Newitt, “Negotiating justice: a new constitution for South Africa”, University of Exeter Press (1995), p 65 9 Harry Evans, Con Con 1998 and the future of Constitutional reform, Universityy of Queensland law Journal; St. Lucia; 1999; George Winterton, vol. 20, issue 2 p 226-227 10 Siri Gloppen, “South Africa: Battle over the constitution”; 1997, Aslgati : Dartmouth, p 258 11 ibid 12 ibid 13 James S. Fishkin, Democracy and Deliberation, London: Yale University Press, 1991
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Firstly, it provides a political participation process, which encourages people to participate and give their opinion. Participation enhances the people’s sense of belonging to their society. It also makes society more stable when everyone feels they have a stake and a say. Secondly, it is a transparent mechanism for political reform and being able to directly engage in it enables people to influence the process. The process of participatory democracy is beneficial to develop civil society. A civil society is an indispensable element in the development of a mature democracy. Thirdly, the mechanism provides an opportunity for interaction between people with different viewpoints in a more lively exchange, which promotes maturity. Fourthly, wide public participation lends the process and the subsequent result legitimacy. Problems for implementation It will not be easy to put in place a constitutional convention process to discuss political reform in Hong Kong. There is fear in Hong Kong that Beijing would not want the reform process in Hong Kong to be too fast as it could impact national policy. Furthermore, the HKSAR Government leaders also do not want to move ahead too quickly and they have used delaying tactics to avoid discussion. Some government officials and legislators also resist change because it will most likely affect their interests. There is also a prevalent view that Hong Kong should solve its current financial problems before tacking political ones. Constitutional convention processes are often the result of political compromise since all the stakeholders can find ways to assert their interests. Thus, whilst the idea of a constitutional process is sound, the result could reflect the battle between vested interests rather than principle. Thus, in thinking about a process, one should do it with open eyes and be prepared for problem. How to start the first step towards the constitution convention Since the HKSAR Government is unlikely to spearhead the reform discussion, nongovernmental organizations (NGOs) may wish to consider grouping together to organize a community constitutional convention. They could start by discussing how to organize community meetings and what are the issues that Hong Kong would need to discuss. In other words, this is like pre-convention talks to set the framework and the agenda. There are three reasons why this might be a desirable course of action. First, it is a signal showing that there is public concern over the issue. It is one way to pressure the government to consider this issue. Second, NGOs can put pressure and involve legislators and polit icians to declare their views about the matter. Third, it can arouse the public’s concern. If they are successful in arousing sufficient public interest, the NGOs can consider whether they have the resources to actually organize the community convention. The Scottish constitutional convention was first initiated by NGOs, which was later recognized by the government. The NGO convention cannot replace an official process but it could help to promote the need for one at this moment in time in Hong Kong.
Reference Christina Ashton &Valerie Finch, Constitutional Law in Scotland, W. Green/ Sweet & Maxwell Ian Holliday, “Democracy essential for SAR- but not too much”, South China Morning Post, 20 July, 2001
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