New Trends of Political Participation in Hong Kong 9789629375171, 9789629372330

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New Trends of Political Participation in Hong Kong

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New Trends of Political Participation in Hong Kong Joseph Y. S. CHENG

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Every effort has been made to contact copyright holders of material reproduced in this book. If any have been inadvertently overlooked, the publisher will be pleased to make restitution at the earliest opportunity.

©2014 City University of Hong Kong All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, Internet or otherwise, without the prior written permission of the City University of Hong Kong Press. ISBN: 978-962-937-233-0 Published by City University of Hong Kong Press Tat Chee Avenue Kowloon, Hong Kong Website: www.cityu.edu.hk/upress E-mail: [email protected] Printed in Hong Kong

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Table of Contents

Part I:  Participation and Policy-making Chapter 1: New Trends of Political Participation in Hong Kong



3

Joseph Y. S. CHENG

Chapter 2: Absorption into a Leninist Polity — A Study of the Interpretations by the National People’s Congress of the Basic Law in Post-Handover Hong Kong

35

Yiu-chung WONG

Chapter 3: Ten Years of Political Appointments in Hong Kong —  The Challenges and Prospects of Developing a Political Appointment System under a Semi-Democratic Regime, 2002 – 12

67

Brian C. H. FONG

Chapter 4: Participation in the Legislative Council —  Changes and Challenges

105

Margaret NG

Chapter 5: Public Participation and Sustainable Development in Hong Kong — Issues and Challenges for Policy Design and Implementation

139

Maria FRANCESCH-HUIDOBRO

Part II:  Participation in Politics Chapter 6: Increased Pluralization and Fragmentation —  Party System and Electoral Politics and the 2012 Elections

185

Ngok MA

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Chapter 7: The Stalemate in Political Reform and the Rise of Contentious Politics in Hong Kong

211

Dennis L. H. HUI

Chapter 8: Political Participation of Students in Hong Kong —  A Historical Account of Transformation

241

Steven C. F. HUNG

Chapter 9: Political Participation of the Catholic Church in Hong Kong SAR

285

Beatrice LEUNG

Chapter 10: Social Enterprises — From Poverty Alleviation to Social Inclusion and Political Participation

311

Lawrence Y. Y. YUNG

Part III:  The Rise of Social Movement Chapter 11: Hong Kong at the Brink — Emerging Forms of Political Participation in the New Social Movement

347

Daniel GARRETT, Wing-chung HO

Chapter 12: Political Participation of the Post-80s Generation —  Their Protest Activities and Social Movements in Recent Years in Hong Kong

385

Calvin H. M. LAU

Chapter 13: Hong Kong’s Systemic Crisis of Governance and the Revolt of the “Post-80s” Youths —  The Anti-Express Rail Campaign

417

Chor-yung CHEUNG

Chapter 14: The Occupy Central Movement and Political Reform in Hong Kong

449

Jermain T. M. LAM

Chapter 15: Conclusion

483

Joseph Y. S. CHENG

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Detailed Chapter Contents

Preface (Joseph Y. S. CHENG)



List of Acronyms and Abbreviations

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List of Illustrations

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Part I:  Participation and Policy-making Chapter 1: New Trends of Political Participation in Hong Kong Joseph Y. S. CHENG

1. Introduction — Emergence of New Issues 2. Changes In the Structure of Hong Kong’s Social Stratification and Their Impact 3. Meaningful Political Participation and Rational Deliberations 4. Civil Society and Social Movements 5. Differences within the Pro-Democracy Movement 6. General Observations

3 7 11 17 23 27

Chapter 2: Absorption into a Leninist Polity —  A Study of the Interpretations by the National People’s Congress of the Basic Law in Post-Handover Hong Kong Yiu-chung WONG

1. Introduction 2. The First Interpretation — The Right of Abode 3. The Second Interpretation — Electoral Methods of the CE and LegCo

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4. The Third Interpretation — The Remaining Tenure of the CE 5. The Fourth Interpretation 6. Conclusion

58 63 64

Chapter 3: Ten Years of Political Appointments in Hong Kong —  The Challenges and Prospects of Developing a Political Appointment System under a Semi-Democratic Regime, 2002–12 Brian C. H. FONG

1. The Concept of Political Appointment System — The Distinctions between Political Executives and bureaucratic Executives in Western Democracies 2. Political Appointment System in Hong Kong — The Development and Evolution of the Principal Officials Accountability System in the Post-1997 Period 3. Political Controversies surrounding Political Appointments —  The Challenges of Developing a Political Appointment System within a Semi-Democratic Regime 4. Conclusion

68

70

75 97

Chapter 4: Participation in the Legislative Council —  Changes and Challenges Margaret NG



1. 2. 3. 4.

Introduction The Business of Legislation — Pre 1997 The Situation Changed Dramatically after 1997 Conclusion

105 108 112 137

Chapter 5: Public Participation and Sustainable Development in Hong Kong — Issues and Challenges for Policy Design and Implementation Maria FRANCESCH-HUIDOBRO

1. Introduction

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Detailed Chapter Contents

2. Sustainable Development in Hong Kong 3. Policy Design and Implementation for Sustainable Development 4. Public Participation and Institutions 5. The Future of Sustainability in Hong Kong

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141 148 173 176

Part II:  Participation in Politics Chapter 6: Increased Pluralization and Fragmentation —  Party System and Electoral Politics and the 2012 Elections Ngok MA



1. 2. 3. 4. 5. 6.

Introduction Obstacles to Party Development in Hong Kong Changed and Unchanged Cleavages When PRLR Becomes SNTV The 2012 Election and the New Party System Prospects of Party Development

185 186 191 196 199 206

Chapter 7: The Stalemate in Political Reform and the Rise of Contentious Politics in Hong Kong Dennis L. H. HUI

1. Understanding Political Reform — A Conceptual Investigation 2. Political Reforms in Hong Kong in the Post-1997 3. Factors Shaping the Future of the Political Reform in Hong Kong 4. Conclusion

211 217 32 2 240

Chapter 8: Political Participation of Students in Hong Kong —  A Historical Account of Transformation Steven C. F. HUNG

1. Introduction 2. Concepts of Students’ Political Participation

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3. Students’ Political Participation in Hong Kong 4. Discussion and Conclusion

244 275

Chapter 9: Political Participation of the Catholic Church in Hong Kong SAR Beatrice LEUNG

1. The Hong Kong Catholic Church and Colonial Government — Cooperation and Conflict 2. Catholic Church in HKSAR — Paradigm Shift 3. Catholic Church’s Teaching — Participation in the Worldly Life 4. Catholic Church’s Political Participation During the Transfer of Hong Kong to Chinese Rule 5. Article 23 of the Basic Law 6. Education Reform 7. Cardinal of Hong Kong Defending the Interest of Catholics in China 8. Cardinal Zen and the Papal Letter to China 2007 9. The Church in Hong Kong in the Post-Zen Era 10. Campaign against the Moral and National Education Curriculum 2012 11. Cardinal Zen and Taiwan-Vatican Relations 12. Discussions 13. Conclusion

285 287 289 290 294 295 297 298 300 301 306 307 309

Chapter 10: Social Enterprises — From Poverty Alleviation to Social Inclusion and Political Participation Lawrence Y. Y. YUNG

1. Introduction 2. Part I — Donald Tsang Yam-kuen’s Policy Thinking on Social Enterprises 3. Part II — Introduction of Social Enterprise to Public Policy Arena and the Commission on Poverty

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Detailed Chapter Contents

4. Part III A — DAB’s Recommendations on the Development of Social Enterprises in Hong Kong 5. Part III B — LegCo Secretariat’s “Social Enterprise Policies of the United Kingdom, Spain and Hong Kong 6. Part IV — Social Enterprises — From Poverty Alleviation and Occupational Integration to Political Participation 7. Conclusion

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Part III:  The Rise of Social Movement Chapter 11: Hong Kong at the Brink — Emerging Forms of Political Participation in the New Social Movement Daniel GARRETT, Wing-chung HO



1. 2. 3. 4. 5. 6.

Introduction 2012 Protests — An Exemplar of Identity Politics Street-level Visual Resistance Online Visual Mobilization Digital Activism Regime Responses — Lively Confrontations

347 351 358 363 369 372

Chapter 12: Political Participation of the Post-80s Generation —  Their Protest Activities and Social Movements in Recent Years in Hong Kong Calvin H. M. LAU



1. 2. 3. 4. 5. 6. 7. 8.

Introduction Defining the Post-80s Generation Rise of Post-80s as Political Force in HK The Political Participation Mode of Post-80s Organizational Dynamics of Post-80s Social Movement Party Politics and the Post-80s Political Interests of the Post-80s Conclusion

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Chapter 13: Hong Kong’s Systemic Crisis of Governance and the Revolt of the “Post-80s” Youths —  The Anti-Express Rail Campaign Chor-yung CHEUNG



1. 2. 3. 4.

Introduction Governance Crisis in HKSAR — The Structural Dimension Governance Crisis in HKSAR — The Value Dimension Challenging the Old Order and the Emergence of Radical Politics 5. The Anti-Express Rail Campaign — A Chronology 6. Understanding the Anti-Express Rail Campaign 7. Conclusion

417 420 424 427 430 435 446

Chapter 14: The Occupy Central Movement and Political Reform in Hong Kong Jermain T. M. LAM

Introduction The Occupy Central Movement Deliberative Democracy and Occupy Central Movement Responses to the Occupy Central Movement and Political Reforms 5. Political Implications of the Occupy Central Movement 6. Conclusion

449 454 462

Chapter 15: Conclusion

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1. 2. 3. 4.

464 469 480

Joseph Y. S. CHENG

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Preface

In the past year or two, people of Hong Kong have been complaining in unison about local politics as their frustrations grow. Their dissatisfaction has centred on the scandals of the administration of the Chief Executive, C. Y. Leung and of his predecessor, Donald Tsang. Tsang was widely criticized for his “greed” during his final year in office; and his Secretary for Administration, Rafael Hui, is at the time of writing being prosecuted in a corruption case involving a leading local real estate group. Both candidates in the 2012 Chief Executive (CE) election, Henry Tang and C. Y. Leung, were involved in scandals over illegal constructions; and a few members of C. Y. Leung’s team were tainted by various scandals right at the start of his term. People of Hong Kong now worry whether the trusted civil service can remain neutral and effective. The apparent involvement of staff of the Buildings Department in a cover-up of illegal construction instigated by C. Y. Leung is one obvious example. But the final blow came in April 2013 with the exposure of expenditure on entertainment and gifts by the former head of the Independent Commission Against Corruption (ICAC), Timothy Tong. The case’s symbolic significance was inescapable: the ICAC is perceived as the community’s bulwark against corruption and its pride; and Tong’s entertainment of cadres of the Chinese central government’s Liaison Office aroused political suspicions. The scandals surrounding, and resignations of, several members of C. Y. Leung’s team gave rise to a lot of rumours about quarrels at the top of the Hong Kong Special Administrative Region (HKSAR) government. Those who had supported Leung’s candidacy wanted to see reforms and improvements, but the old guard of the civil service accorded priority to preserving proper procedures and their way of doing things. These internal divisions have affected the administration’s ability to deliver; for example,

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it had to back down even on a simple plan to restructure the HKSAR government. Top Chinese leaders appealed for reconciliation immediately after the CE election, and certainly C. Y. Leung would like to secure the support of the entire establishment. But there were Legislative Council elections in September 2012 and then the election of thirty-six deputies to the National People’s Congress; there was keen competition within the establishment, and the struggle between the C. Y. Leung camp and the Henry Tang camp continued. Even the strong bond of the pro-Beijing united front seems to have been eroded. The staunchly pro-Beijing monthly The Mirror severely criticized Rita Fan Hsu Lai-tai in its December 2012 issue for attacking the CE. Cheng Yiu-tong, one of the members in Hong Kong Federation of Trade Unions, revealed that members had withdrawn from the federation because they were disappointed by the position of popular legislator Chan Yuenhan on the proposed extra allowance for the elderly. The pro-democracy camp continues to be plagued by internal arguments and distrust. Its supporters are still demanding that the Democratic Party acknowledges its mistake in reaching agreement with the central government’s liaison office on electoral reform in 2010, now that the recent Legislative Council election results have proved it was the wrong decision. The Civic Party has yet to make its own structure more democratic and has been losing members. In a District Council by-election in New Territories East in late 2012, competition between the Democratic Party and the NeoDemocrats delivered the seat to the candidate from the Democratic Alliance for the Betterment and Progress of Hong Kong, despite the prodemocracy camp securing two-thirds of the vote. As usual, it is the moderation and pragmatism of ordinary people of Hong Kong that has contributed to political stability by punishing, through public opinion, the parties that were out of line. But the community cannot be optimistic that the territory will improve its international economic competitiveness and come up with effective solutions for its housing and other problems. All parties have an obligation to help, given

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the dire situation. Beijing should take the lead by stopping accusations of collusion between external forces, the remnants of British colonialism and the opposition. The central leadership’s indication that it will treat the contradictions within Hong Kong in a relaxed and flexible manner is probably the key in the present circumstances, preventing further political polarization and encouraging discussions to reach compromises and solutions. These gestures may generate an atmosphere conducive to a meaningful dialogue between the administration and pro-democracy groups. And they may suggest to the establishment that the central government desires political harmony in the HKSAR. If, however, the pro-Beijing united front speculates that the central authorities want to tighten their control over Hong Kong and exert further pressure on the so-called opposition, the confrontations will only get worse, especially in the coming consultations over the 2017 CE election. The controversy in late 2012 over the Central Policy Unit’s influence in government appointments to the advisory committee system highlighted an important area where the C. Y. Leung administration could have tried to secure better trust from the community. It had a chance to make many new appointments to various advisory committees. If the government had tried to recruit truly representative and competent figures, respected in their own fields and by society as a whole, this could have demonstrated a sincere will to listen, the first step towards strengthening consultation and avoiding confrontation. The chances of starting a virtuous circle were abandoned, however, and it was claimed that 430,000 people took part in the protest rally on July 1, 2013. This was a concrete indicator of the community’s grievances and an evaluation of the performance of the C. Y. Leung administration. People of Hong Kong understand that any chance Leung has of being re-elected, or indeed of completing this term, will depend on Beijing’s perception of his performance. So, like their counterparts on the mainland, one way for them to show their anger to the Chinese leadership is through the media. On political reforms, the Hong Kong government has had little to

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say. It has also been slow to respond to the Edward Snowden saga.1 Conservatives in the pro-Beijing united front have increasingly blamed demands for democracy and the Occupy Central campaign on “collusion” with external forces and the “landmines” left by the British colonial administration. Meanwhile, pro-democracy activists and Hong Kong people are treating Snowden as a hero and have not hesitated to criticize the Barack Obama administration. The pro-Beijing media even gave space to the pro-democracy camp’s views, an extremely rare occurrence. Since 2003, the July 1 protests have fully demonstrated that Hong Kong people cherish their right to articulate their grievances, but they also appreciate that there are limits; they have no intention of damaging the territory’s stability and prosperity. Exactly because of the anticipated “Occupy Central” showdown next year, around July 1, 2014, in 2013 radical activities on that day were kept to the bare minimum. If the government respects the right of the people to protest, then these annual rallies and the “Occupy Central” campaign can uphold the good image of Hong Kong people’s moderation. The fears in recent months about protests getting out of control have come from the so-called patriotic groups. The fear-mongering is aimed at damaging the reputation of the pro-democracy movement and giving the administration an excuse to clamp down. A much more serious concern, however, is surely the likely failure to reach agreement on political reform. In short, this would hurt Hong Kong badly. The incumbent CE and the CE elected in 2017 would lack legitimacy in the eyes of most people, and he or she would not have the mandate or political support to implement badly needed reforms. Effective governance may be difficult. The pro-democracy groups would not benefit from such difficulties. They would in all likelihood be divided and would be unable to play any constructive role. Such worries have generated renewed talk of emigrating, which had subsided after the mid-1990s, especially among young professionals.

1 See South China Morning Post, www.scmp.com/news/hong-kong/article/1266580/hong-konggovt-silent-snowdens-fate-lawmakers-call-china-decide

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The C. Y. Leung administration’s refusal to release a timetable for consultations by July 2013 was therefore highly irresponsible. Failure to reach agreement on political reform will leave very little room for the government to focus on livelihood issues. The flaws of the existing system are crystal clear: most recently, the administration could not even persuade enough proestablishment legislators to support its landfill plan for refuse treatment. The old arguments that political reform has to be gradual and that conditions may not yet be right have, by now, lost all credibility. In the eyes of most people of Hong Kong, political reform has become the endgame. The widening gap between the rich and the poor, the decline in opportunities for young people to move up the ladder, the worsening housing problems, and the increasing inadequacy of the pension and health care systems not only exacerbate the community’s frustrations and grievances, they also make people realize that the C. Y. Leung administration lacks the political support needed to tackle such issues. Worse still, people do not believe that the administration can regain this support. The business community has its own problems to deal with, from divisions within its ranks to the worsening “hate the rich” attitude of ordinary people. If big businesses still cling to their usual strategy of lobbying Chinese leaders to protect their interests, they will not be interested in political reform. But is this a viable long-term strategy? Obviously the weight of Hong Kong’s contribution to China’s economic development has been in decline; and with China’s major state-owned enterprises wanting a larger and larger share of the territory’s market, as lobbyists in Beijing they are becoming more influential and active in Beijing. Business leaders in Hong Kong should realize that the best way to promote their long-term interests is to follow their counterparts in Western democracies to form effective political parties to win elections. They have the resources and the talent to do so, especially given the relative weakness of the pro-democracy groups. A democratic government cannot solve all of Hong Kong’s problems; no one has ever claimed it could. But at this stage a Hong Kong government

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that is not democratically elected will not have the legitimacy to face the challenges ahead. Any legitimacy achieved through performance has been almost completely eroded; high-level corruption cases, perhaps the last straw, have seen to that. The current trend of political polarization and fragmentation has to be arrested. This calls for an abandonment of sectoral and narrow political interests and a spirit of respect for different political views. The C. Y. Leung administration has so far been unable to demonstrate this quality of genuine leadership, so only the Hong Kong people can help themselves now. In the longer term, the Chinese authorities should be concerned with the issues of the attitudes of people of Hong Kong towards the central government and their identity with the Chinese nation. Actually, from 1997 to 2008 (according to public opinion surveys), trust in the central government of people of Hong Kong and their identification with the Chinese nation had been strengthening; both trends, however, have been reversed since then, and the declines have even become sharper in the recent year or so. A poll by the University of Hong Kong found that the percentage of people of Hong Kong who held negative attitudes towards the central government increased from 25% in November 2012 to 37% in May 2013 and those who held positive attitudes decreased from 29% to 20% in the same period.2 In the following month, immediately after the June 4 candlelight vigil, another survey by the University of Hong Kong revealed that the community’s identification with the Chinese nation (Zhonghua minzhu) dropped to a fourteen-year low. Respondents who identified themselves as “Hong Kongers” amounted to 38%, 11% higher than six months ago; those who identified themselves as Chinese rose 2% to 23% in the same period; while those who identified themselves as “Chinese of Hong Kong” or “Hong Kongers of China” reached 36%, showing a decline of 13%.3

2 Ming Pao (Hong Kong daily newspaper), June 5, 2013. 3 Apple Daily (Hong Kong daily newspaper in Chinese), June 19, 2013.

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The pro-Beijing media severely criticized the survey organization for the conduct of these polls; which seems irrational because this series of surveys has been conducted for about three decades, and the pro-Beijing united front was pleased with them when the survey results conformed to its position. Criticisms would not solve the problem, some reflections are called for to reverse the trends, at least to prevent the trends from further worsening. Chinese leaders’ support for an unpopular CE, the increasing interferences in Hong Kong by the Chinese authorities, top Chinese officials’ close ties with the territory’s tycoons who have attracted considerable resentment because of the widening gap between the rich and poor, the deteriorating human rights conditions in Mainland China, and so on, have been cited as possible explanations. The impact of these two trends on political participation in Hong Kong is as yet uncertain, much will depend on whether they are going to be sustainable, long-term trends. At this stage, they serve to further discredit the HKSAR government, which counts on support from Beijing; and a vicious circle may well have emerged in the case of the C. Y. Leung administration, i.e., its unpopularity means that it has to count more on Beijing’s support, and the Chinese leadership’s support for an unpopular CE in turn exacerbates negative attitude of people of Hong Kong towards the central government. Resentment against the collusion among the central government, the unpopular CE who lacks legitimacy as he is perceived to be selected by Beijing and a small circle of tycoons, and the local business leaders continues to radicalize political participation as more and more grassroots activists want to engage in confrontation to express their dissatisfaction and anger. In the 2012 CE election, there was a view that whoever was elected would have great difficulties governing Hong Kong. In the following year, the controversies over political reforms gave rise to a worry that if no agreement can be reached on a democratic electoral system accepted by the majority people of Hong Kong, the territory may well become ungovernable, as the incumbent and future CEs will have inadequate claims to legitimacy. Obviously the difficulties encountered by the C. Y.

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Leung administration, and the Donald Tsang administration in its final years, are rooted in the “legitimacy deficit” of the HKSAR government. This “legitimacy deficit” reflects and at the same time has contributed to the exacerbating contradictions in Hong Kong society. In the past decade and more, poverty has re-emerged in the territory. In September 2013, in discussions on the poverty line, it was revealed that about one-third of the territory’s elderly (about 300,000 people) live under the poverty line.4 In 2008, the Commission on Strategic Development acknowledged that in the previous year there were 195,800 laborers who despite working hard, consistently could not “earn reasonable salaries to satisfy the basic needs of themselves and their families.”5 The “working poor” is a relatively new concept; it goes against the common belief of people in Hong Kong, held until 1997 or so, that “as long as you are willing to work, you will be able to make a living.” At the same time, the supply of public housing has been in decline, while private property prices have gone up markedly; access to social services has become more expensive, and their supply has fallen below the community’s needs.6 In the past, the British colonial administration secured its legitimacy by performance. In view of the less than satisfactory performance of all three CEs so far, the HKSAR government can no longer claim its legitimacy by performance. As the Basic Law was designed to provide a safe majority support in the legislature for the administration, the C. H. Tung administration did not involve the pro-democracy political parties in its decision-making process. The Donald Tsang administration made it clear that it would treat political parties that supported the government

4 Apple Daily, September 24, 2013. 5 Commission on Strategic Development, “An Overview of the Opportunities and Challenges of Hong Kong’s Development” (CSD/6/2008, October 2008), 6 and “Table 2: Characteristics of Working Poor in Hong Kong, 2001 – 2007,” 24. 6 See Leo F. Goodstadt, Poverty in the Midst of Affluence — How Hong Kong Mismanaged Its Prosperity. Hong Kong: Hong Kong University Press, 2013.

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and those that were perceived as critics of the government differently. It has been said that the C. Y. Leung administration considers the opposition as the enemy. The pro-democracy parties, having no constructive role to play in the policy-making process, find it difficult to maintain solidarity. Some attempt to seek a dialogue with the Chinese authorities, as demonstrated by the negotiations on political reforms in 2010; some consider their parliamentary role less important, and engage in protest activities. These divisions in the pro-democracy movement have been exacerbating, which is also facilitated by the election system of the Legislative Council, i.e., multiseat, single-vote, medium-sized constituency system. Take the case of the New Territories West constituency in 2012: to win one of the nine seats, a candidate only needed 8 – 9% of the votes cast. As the voter turn-out rate in Legislative Council elections is usually about 50%, it means that if one can mobilize 4 – 5% of the electorate to vote, one can secure a seat. The divisions within the pro-democracy camp in recent years have further deteriorated into mutual criticisms and organizational splitting. These phenomena weaken the base of support and the appeal of the movement. As recovery of the movement is nowhere in sight, its decline may well become a long-term trend especially in view of the increasingly powerful and resourceful electoral machinery of the pro-Beijing united front. The radical wing of the pro-democracy movement has been able to attract young people’s support much better than the traditional established pro-democracy parties, revealing the dissatisfaction with the status quo on the part of the younger generation. The pro-Beijing united front, on the other hand, has become considerably more active in the past decade, mainly because the Chinese authorities have intervened much more after the massive protest on July 1 2013. As they are concerned with the loss of control, they are ready to offer more resources for the maintenance of political stability, in line with the similar trend in Mainland China; and they are less inhibited by the upholding of the “one country, two systems” model. This intervention has

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led to the emergence of many more pro-Beijing grassroots organizations, and the effective united front work has attracted many more pro-Beijing voices in the media, tertiary institutions, church groups, NGOs etc. The intense competition in the 2012 CE election between Henry Tang and C. Y. Leung apparently has resulted in a split within the establishment which has not been healed despite appeals from the top Chinese leaders. As the establishment pursues its diverse interests, the absence of co-ordinating mechanisms and strong leadership mean that divisions are natural. But the partisanship of the C. Y. Leung administration has allowed the divisions and competition to come to the surface, and even resulted in the erosion of the stable majority support for the administration in the legislature. The divisions briefly analyzed above have adversely affected the HKSAR government’s policy capacity which some perceive as reaching a crisis point. Meanwhile, grievances in the community have boosted the social movement sector, with the annual number of reported protests increasing from less than one hundred before the millennium to around two hundred during the 2000s.7 This new wave of social movements cuts across social strata, but has been particularly initiated by the middle class who are eager to promote changes related to social inequality, urban redevelopment, pollution, culture and quality of life. The “post-80s generation” has also been a significant force in this new wave. This new wave of social movements demonstrates some interesting characteristics. There is a distinct non-materialistic orientation, remarkable in a highly materialistic society such as Hong Kong. The participants enjoy the campaign processes and consider this enjoyment almost as important as the achievement of their objectives. They normally do not welcome the involvement of political parties. The participation of young students is especially encouraging as it is clear that some young people are ready to take the community’s interests very seriously.

7 See Kai Hon Ng, “Social Movements and Policy Capacity in Hong Kong: An Alternative Perspective,” Issues & Studies (Taipei) 49(2) (2013): 179 – 214.

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The editor, in his introductory chapter to this volume, observes that though democratization has hardly made any progress in the territory since 1997, there are many trends and phenomena relating to political participation that are deserving of attention. At the time of writing in mid 2013, the Chinese leadership and the HKSAR government still refuse to formally consult the people of Hong Kong on the actual implementation of the election by universal suffrage of the Chief Executive in 2017 and that of the entire legislature in 2020. More significant are the intermediate and long-term changes in the social structure. In the last two decades, Hong Kong has increasingly developed into an “M-shaped” society, many educated young people are doubtful whether they belong to the middle-class. There is a common concern among people of Hong Kong: will political participation continue to radicalize? The support for the “Occupy Central” campaign has alarmed the Chinese authorities and the local establishment. As reflected by the published opinion surveys, the community’s evaluation and support of the HKSAR government have been deteriorating, and there is a crisis of “legitimacy deficit” on its part. In recent years, the local media have also observed “a resentment against the rich.” Under such circumstances, people of Hong Kong focus on their work and families. Theoretically, religious activities, neighbourhood social interactions, voluntary services etc have ample scope to develop, as in the case of Taiwan. Yiu-chung Wong examines the interpretations of the Basic Law by the Standing Committee of the National People’s Congress (NPC) in the context of the yet to be completed value integration of the HKSAR with the People’s Republic of China (PRC). His chapter studies the four cases of interpretation that have been decided so far in terms of their origins, the public’s reactions, their impacts on Hong Kong society, and how they have facilitated the establishment of a new political order serving the PRC’s interests. Wong observes that the interpretations did not follow a defined pattern; and the basic reason is that the authoritarian regime in Beijing does not want its power to be restrained. However, the strong resistance by civil society has not been entirely fruitless. The Party regime still has an uphill task integrating the HKSAR into the main polity of the PRC.

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Brian C. H. Fong’s chapter deals with the political appointment system known as the Principal Officials Accountability System (POAS), introduced in 2002. In view of the criticisms of the system, Fong explains that its problems and controversies are closely connected to the main features of the HKSAR’s semi-democratic regime. They include: the deficit of democratic elections, the legitimacy crisis facing the CE, the marginalization of party politics and the continued dominance of senior civil servants in policy-making. These features in turn have led to the failures of the system, i.e., its inadequacies in enhancing the political accountability of the HKSAR government, in selecting political appointees in an open and fair manner, to form a cohesive governing team, and to safeguard the political neutrality of the civil service. Fong argues that the above problems and inadequacies have undermined public confidence in the political appointment system; and the fundamental solution lies in the implementation of universal suffrage and party politics. Democratic elections and party politics are the essential institutionalized foundations guaranteeing the smooth functioning of the political appointment system under Western democracies. Only through competitive elections can an effective chain of accountability be established between the political executives and the people, and can the elected head of government secure the popular mandate to appoint his governing team. Margaret Ng, a prominent legislator widely respected for her dedicated work within the Legislative Council (LegCo), offers her insights based on her actual participation. She focuses on the performance of LegCo’s legislative function, its role as the watchdog for the rule of law and Hong Kong’s political values, and its own institutional development as an autonomous legislature of the HKSAR under the Basic Law. Ng criticizes the HKSAR government for adopting the wrong approach in its anxiety to be seen to embrace the transfer of sovereignty. The task of adaptation of existing legislation in fact ranged from the unnecessary to the impossible, with little in between (the grey areas). She considers that it was unnecessary to pass specific laws for the mechanical changes which are obvious, since the Reunification Ordinance passed by the Provisional

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LegCo was already adequate. In her chapter, Ng argues eloquently that legislation is a partnership business. It requires an administration that is principled, competent, alert to developments in the world and the needs of the community, and that has sufficient respect for the legislature and due process. LegCo has to be able to vet the bills introduced independently and conscientiously, and this requires LegCo to have members with competence and commitment, and secretarial support with high standards of professionalism. In contrast to most other authors in this volume, Maria FranceschHuidobro is optimistic; she believes that the Hong Kong government has adopted appropriate institutional changes in an attempt to coordinate actions inside and outside government in achieving sustainable development. The local model basically mirrors that of the European Union, i.e., the establishment of the Sustainable Development Unit within the government structure and an independent Council for Sustainable Development. Education on sustainability is still considered necessary to alter the common belief that sustainable development hampers growth and exacts a price. The administration may still encounter resistance from the traditional business community which strongly advocates “positive noninterventionism;” hence it needs to build a strategy that sets a broad framework to direct and support development. The public at large is not playing a decisive role, as argued by Francesch-Huidobro, because of lack of information on the concept and on specific environmental initiatives. Including sustainable development in school curricula therefore should be the way forward. Besides awareness, involvement is also necessary. Seeking people’s opinions on how development projects are to proceed and how specific policies are to be formulated is a must. It is anticipated that the very areas of neglect in the territory’s present environment and the crises that may emerge from them would continue to act as powerful catalysts for improvement. Ma Ngok’s chapter traces changes in the party system in Hong Kong since the 1990s. Mainly due to the LegCo’s electoral system, increasing

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fragmentation has been the trend as both the establishment camp and the pro-democracy camp continue to split, leading to an unprecedented number of candidate lists in the 2012 elections and a much more fragmented party system. Ma considers that the territory’s party system remains under-developed; parties are still weak in terms of overall membership, mobilization power, and party identification among the people. The protracted democratization process has given rise to a debate over the pro-democracy movement’s strategy among its various groups, and unity among them is difficult to maintain because political spoils are very limited. The prospects for party development depend largely on if and when full democracy will be realized in Hong Kong. If the CE is elected in a free election on the basis of universal suffrage in 2017, it would provide extra incentives for party development. Many influential actors, especially the business community, however, have still adopted a wait-and-see attitude towards the development of democracy. Dennis Hui Lai Hang observes that the wide differences in the pace and scope of political reforms in the territory have led to an acrimonious battle; and he also considers the critical role assumed by the interpretations of the Basic Law by the National People’s Congress Standing Committee in shaping the context for political bargaining. Hui argues that the stagnated process of political reform in Hong Kong is mainly due to the convergence of three factors: the debilitating effect of adversarial politics, the difficulties in conducting meaningful political bargaining, and the closure of the political opportunity structure. His chapter also offers a theoretical framework to understand the political dynamics involved in the democratization reform process based on the diffusionist, structural, institutional and contingent perspectives. Steven Hung Chung Fung offers a historical account of the student movement in the territory. In the local political system which is neither authoritarian nor democratic, the student movement has generated a public forum for political discussion; and it is in a relatively privileged position for creative endeavours. Hung considers students in Hong Kong an elite with above average formal education, and they have been at the forefront of radical movements in the local history.

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Like other authors on social movements in this volume, Hung observes the growing popularity of discursive participation in radio talk show programmes. However, since the resignation of several popular talk show hosts in 2004, digital activism has become an important alternative. Facebook, Twitter, personal blogs, and citizen journalism have rapidly developed into significant means of political participation for students; as a result, an interesting political sub-culture has emerged. Professor Beatrice Leung examines the political participation of the Catholic Church in the HKSAR from 1997 to the present. She believes that Bishop (later Cardinal) Joseph Zen Ze Kiun’s role was very important as he became extremely vocal and critical of the HKSAR government in some social policies. Under Bishop Zen, church-state relations experienced a drastic change from a contractual relationship with the colonial government to an antagonistic one. Bishop Zen also antagonized the central authorities in Beijing by defending the Catholic Church’s right to reject the ordination of five Chinese bishops without the Holy See’s consent in January 2000, and in its canonization of 102 saints in China in October in the same year. Cardinal Zen’s successor, Bishop (later Cardinal) John Tong adopted a lower profile in political participation. However, in September 2012, Bishop Tong appealed to the C. Y. Leung administration to curb the increasing housing price and implement an effective welfare policy. Leung considers that the Catholic Church after Vatican II intends to uphold the principles of justice and human dignity in political activities for its followers. In this context, Hong Kong Catholics’ participation in the pro-democracy movement would be a way to expand the territory’s autonomy and strengthen the guarantee of religious freedom. Lawrence Y. Y. Yung examines the policy perspective of the Tsang administration on social enterprises in the period 2005 to 2012. Apparently inspired by the Commission on Poverty to exploit SE to encourage the able-bodied unemployed to move from welfare to workforce, Donald Tsang perceived the development of social enterprises as providing

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employment opportunities for people dependent on social welfare. In reality, employment in the social enterprises sector has remained very low and has largely failed to boost employment for the vulnerable groups or to serve as an innovative measure in poverty alleviation. The author criticizes the Tsang administration’s limited vision and piecemeal efforts in creating an enabling environment for the development of social enterprises. He argues that the policy barriers impeding the development of social enterprises have to be removed; and he is uncertain if the Leung administration will still accord a priority to this policy area. Yung articulates the view that the development of social enterprises should be re-directed from poverty alleviation through job creation to social inclusion, with the emphasis on improving social stability by offering a new platform for political participation for the different stakeholders in society. In the past decade, Hong Kong has witnessed the emergence and consolidation of a new social movement with an explicit emphasis on identity politics. Worried about losing the city’s “Hongkongness,” activists employ a wide range of symbolic aids and online means to tap the public emotions in an attempt to marshal support and apply pressure on the regime. The chapter by Daniel Garrett and Ho Wing-chung examines the HKSAR government’s responses to the new social movement through studying the emerging means of protest from three aspects; street-level visual resistance, online visual mobilization, and digital activism. It argues that more animated face-to-face confrontations between the radicals and extremist pro-establishment supporters at the level of civil society are expected when the pro-establishment camp fights back — symbolically and visually — at street level as well as at the online and digital levels. Since 2013, pro-regime organizations in civil society have been increasingly deployed to intimidate anti-regime forces. These organizations seem to espouse belligerent and strident identity politics with an attempt to mobilize “patriotic forces” to action, and orchestrate Hongkongers’ consent for a more conservative political system. Their interpretations and representations of China, Hong Kong, etc and those of the new wave

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of young radical protesters have become the nexus of a vivacious circle of identity politics. Not only does each of the two sides, radical prodemocracy and extremist pro-regime, see the other as the cause of Hong Kong’s problems, but they are both on a mission to “set things straight” and to mobilize their respective camps to take up arms to “save Hong Kong.” Garrett and Ho concur with other social scientists that Hong Kong’s radical and young activists typically see the traditional democracy movement as “too conservative and outdated,” thus implicitly requiring, they believe, more confrontation and new tactics such as visual resistance and digital activism to provoke discussion and ultimately compel the regime to compromise. Calvin Lau is a young student who has just completed his master’s degree; and he offers his perspective of the “post-80s” generation’s political participation. He considers that his peers have diverse values and are less materialistic. They feel that their demands fail to reach the government’s agenda. At the same time, they are not enthusiastic about democratization in Hong Kong as they do not believe that the Chinese authorities would allow genuine democracy in the territory. Lau believes that his peers are liberals; they are ready to support the core values of Hong Kong, i.e., rule of law, freedom of expression, human rights and democracy. Among them those who are interested in political careers tend to be disappointed because they consider it very hard to gain a foothold in the electoral process. In general, they believe that the opportunity costs of political participation are very high. In turn, political parties, especially those in the pro-democracy camp, have encountered substantial difficulties in recruiting young people interested and dedicated to a political career. Lau is right, in our view, in stating that the political participation of the “post-80s generation” is indicative of the social and political changes in recent years. Obviously the existing political systems cannot cope with the expansion of civil society and in fact has generated perceived “deep-rooted contradictions,” i.e., alleged government and business collusion, real estate

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hegemony, and so on. Consequently, a segment of the population chooses to articulate its interests outside the system. Chor-yung Cheung studies the revolt of the “post-80s” youth. Since the late 1980s, Hong Kong has developed an honorable tradition of rational and civilized mass protests, which have even become an attraction for world tourists. These protests, however, reflect a serious crisis of governance; and he agrees with Ian Scott’s observation that the territory’s disarticulated political system “provides institutional support for the divided political communities that make up the polity.” The author uses the campaign against the express rail project in 2008–9 to examine the emergence of radical politics in the context of Hong Kong’s systemic governance crisis. He considers that the “post-80s” generation’s transitions from school to work have become more precarious and unstable than before due to keener competition and higher unemployment rates, but there is no evidence that it “has developed distinct values and political orientations as a group.” Cheung raises the question whether the “post-80s” young people can sustain their radicalism and further develop their social movement. He concludes that at this stage, people of Hong Kong do not seem to endorse their brand of radicalism without hesitation, but a similar civil society revolt cannot be ruled out in the not too distant future. Jermain T. M. Lam considers the “Occupy Central” movement in the context of the frustrations and disappointments over democratic development in the territory as pro-democracy supporters see the Chinese leadership lacking the sincerity to introduce genuinely democratic election of the CE in 2017. Lam analyzes the seven major components listed by the movement as essential for a fair and just electoral system for Hong Kong. Lam observes that the Chinese authorities have adopted a hard line on the progress of political reforms in the territory; and they are unmoved by the actions and beliefs of the movement. The movement has introduced the practice of deliberative democracy to the local political landscape, but the responses of the general public towards the movement have been reserved and the majority seem to adopt a wait-and-see attitude. Hence Lam thinks

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that the movement would only have a limited short-term impact on the territory’s course of democratic development. This volume is a collection of chapters by a team of experts who have been astute observers of Hong Kong politics. Their analyzes of various significant aspects of the new trends of political participation in the territory, hopefully, will contribute to a better understanding of its political development. At a time when inter-generational differences are sharpening, when mutual trust is in decline, when political phenomena are sometimes difficult to comprehend, and when understanding, accommodation and consensus are in short supply, these analyzes may constitute a small contribution to the efforts made to meet the severe challenges ahead.

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Acronyms and Abbreviations

ABLE

A Better Living Environment

165

ACE

Advisory Council of the Environment

156

ADPL

The Association of Democracy and People’s Livelihood

200

AFCD

Agriculture, Fisheries and Conservation Department

156

AUS

Alliance for Universal Suffrage

195

BCE

Business Coalition on the Environment

163

BEC

Business Environment Council

164

CASET

Computer Aided Sustainability Evaluation Tool

143

CCP

Chinese Communist Party

35

CDTF

Constitutional Development Task Force

44

CE

Chief Executive

44

CECSD

Chief Executive Commission on Strategic Development

156

CEDB

Commerce and Economic Development Bureau

332

CFA

Court of Final Appeal

38

CGLO

Central Government Liaison Office

201

CHKP

Caring Hong Kong Power

357

CoP

Commission on Poverty

313

CP

Citizens Party

165

CP

Civic Party



CPG

Central People’s Government

74

CPPCC

Chinese People’s Political Consultative Conference

468

CPU

Central Policy Unit

170

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CSC

Chief Secretary’s Committee

145

CSD

Council for Sustainable Development

144

CSOs

Civil Society Organizations

385

CSR

Corporate Social Responsibility

318

CSSA

Comprehensive Social Security Assistance

311

CUPEM

Centre for Urban Planning and Environmental Management

146

CWTC

Chemical Waste Treatment Centre

162

D&G

Dolce & Gabbana

351

DAB

Democratic Alliance for the Betterment and Progress of Hong Kong

85

Democratic Alliance for the Betterment of Hong Kong

467

DB

Development Bureau

156

DBC

Digital Broadcasting Corporation

356

DM

District Magnitude

192

DP

Democratic Party



EB

Environment Bureau

156

ECC

Environmental Council Committee

168

ECF

Environmental and Conservation Fund

146

EFB

Environment and Food Bureau

159

EIA

Environmental Impact Assessment

158

ENPP

Effective Number of Political Parties

207

EPD

Environmental Protection Department

148

EU

European Union

173

ExCo

Executive Council

155

FC

Functional Constituency

188

FEHD

Food and Environmental Hygiene Department

156

DABP

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Acronyms and Abbreviations

FHB

Food and Health Bureau

156

FPTP

First-Past-The-Post System

187

FTU

Federation of Trade Unions

193

HA

Hospital Authority

325

HAB

Home Affairs Bureau

320

HKEx

Hong Kong Exchanges and Clearing Limited

79

HKGCC

Hong Kong General Chamber of Commerce

163

HKPRI

Hong Kong Policy Research Institute

171

HKSAR

Hong Kong Special Administrative Region



HKSEC

Hong Kong Social Enterprise Challenge

326

HKSEF

Hong Kong Social Entrepreneurship Forum

330

HKSDF

Hong Kong Sustainable Development Forum

166

HKU

The University of Hong Kong

146

HKYCA

Hong Kong Youth Care Association Ltd

356

IESI

Initial Environmental Sustainability Indicators

146

JLG

Joint Liaison Group

109

LegCo

Legislative Council

44

LP

Labour Party



LP

Liberal Party

85

LSD

League of Social Democrats

194

LWB

Labour and Welfare Bureau

327

MNE

Moral and National Education

354

MPF

Mandatory Provident Fund

81

NPC

National People’s Congress

37

NPCSC

NPC Standing Committee

39

NPP

New People’s Party

193

NWSC

Neighbourhood Workers Service Centre

201

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New Trends of Political Participation in Hong Kong

OCTS

One Country, Two Systems

357

OTS

Office of the Third Sector

332

PD

Planning Department

159

PLB

Planning and Lands Bureau

159

POAS

Principal Officials Accountability System

67

POP

Public Opinion Programme

168

PP

People’s Power

202

PR

Proportional Representation

185

PRC

People’s Republic of China



PSCE

Private Sector Committee on the Environment

163

RTHK

Radio Television Hong Kong

376

SAR

Special Administrative Region

147

SARS

Severe Acute Respiratory Syndrome

421

SBM

School-Based Management

295

SDU

Sustainable Development Unit

144

4

SE Chamber Hong Kong General Chamber of Social Enterprises

330

SERC

Social Enterprise Resource Centre

326

SEU

Social Enterprise Unit

332

SFS

Support for Self-reliance

311

SIE Fund

Social Innovation and Entrepreneurship Development Fund

327

SMEs

Small and Medium-sized Enterprises

131

SNTV

Single-Non-Transferable Vote

197

SSRC

Social Sciences Research Centre

167

SVhk

The Social Ventures Hong Kong

338

SWD

Social and Welfare Department

327

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Acronyms and Abbreviations

TD

Transport Department

160

TPB

Town Planning Board

156

UNCED

United Nations Conference on Environment and Development

140

UNEP

United Nations Environment Programme

139

VLHK

The Voice of Loving Hong Kong

374

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List of Illustrations

Figures Figure 3.1

Public rating on Principal Officials Accountability System (2003 – 2011)

77

Figure 11.1 Anti-mainland drivers protesters at HKSAR government headquarters prepare to trample an effigy of a mainland driver during a February 2012 demonstration and rally

353

Figure 11.2 A flyer against mainland mothers held up by a protester in February 2012

359

Figure 11.3 Legislative Council election 2012 posters manifesting identity politics values (anti-communism)

361

Figure 11.4 A radical pro-democracy political party member carries a burned national flag during the June 10, 2012 march to the Liaison Office over the death of Tiananmen activist Li Wangyang

362

Figure 11.5 Screen captures from a translated and subtitled version of the 2012 online video Locust World

364

Figure 11.6 Labeling and stigmatizing online visuals targeting Hongkongers shared over Facebook and other online resources

366

Figure 11.7 Photograph shared over Facebook and other new and social media by an unknown person

368

Figure 11.8 Examples of online political cartoons inspired by Hong Kong’s anti-MNE movement

368

Figure 11.9 Some online mobilization images explicitly visually imagined various regime change scenarios

370

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Figure 11.10 Falun Gong marcher accosted by two HKYCA members during a pause in the April 28, 2013 parade from Hong Kong’s Eastern district to Western district where China’s Liaison Office is located

374

Figure 11.11 A political cartoon by Cuson Lo of the Caring Hong Kong Power convenor and her followers

375

Figure 12.1 Structural transformation and higher education expansion in Hong Kong, 1986 – 2007

389

Tables Table 1.1

Table 1.2

Table 3.1

Satisfaction with the policy direction of the Donald Tsang Administration and the C. Y. Leung Administration, August 2005 – September 2011

28

Satisfaction with the overall performances of the Donald Tsang Administration and the C. Y. Leung Administration, August 2005 – June 2013

29

The distinction between political executives and bureaucratic executives in Western democracies

71

Table 3.2

Major policy failures/personal misconduct of principal officials since the implementation of the political appointment system in 2002 79

Table 3.3

Occupational backgrounds of senior secretaries and policy secretaries under the Political Appointment System

89

Occupational backgrounds of under secretaries and political assistants under the Political Appointment System

90

Table 3.5

Political affiliations of political appointees

91

Table 3.6

Comparing the policy explanation work between political officials and civil servants

93

Distribution of seats in LegCo., 1998 – 2012

190

Table 3.4

Table 6.1

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List of Illustrations

Table 6.2

Trust in major institutions, 2001 – 12

191

Table 6.3

Number of lists in geographical elections, 1998 – 2012

193

Results of the 2012 election, vote shares and seat shares of parties

204

Results of the 2008 election, vote shares and seat shares of parties

205

Number of public procession and public meeting in Hong Kong

229

The estimated number of participants in the July 1st Protest

229

People’s trust and distrust in the HKSAR Government

233

Summary of student movements in the 1960s and the 1970s

251

Recorded student participation leading up to June 4, 1989

257

Comparison of three successive mass demonstrations with participation of young people

264

Approximate numbers of participants and value of donations during June 4 candle light vigils

269

Table 12.1

Trends in occupational mobility in Hong Kong

387

Table 12.2

Ordinal logit models on social attitude and perception and inequality

388

The satisfaction of three generations with the opportunities for their own development in Hong Kong

391

Table 12.4

Differences in post-materialist value orientation

393

Table 12.5

Channels for learning about demonstrations or rallies to be organized

396

Table 6.4 Table 6.5 Table 7.1 Table 7.2 Table 7.3 Table 8.1 Table 8.2 Table 8.3 Table 8.4

Table 12.3

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New Trends of Political Participation in Hong Kong

Table 12.6 Table 12.7 Table 12.8 Table 12.9

The youth feels five major parties in LegCo represent and protect their interests best

401

The differences of different generations on rejecting the government’s plans for reform

404

The different perspectives of different generations to 2017 CE and 2020 LegCo universal suffrage

404

Evaluation of functional constituencies after LegCo approved high-speed-rail budget

406

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Part I Participation and Policy-making

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1 New Trends of Political Participation in Hong Kong Joseph Y. S. CHENG

1.

Introduction — Emergence of New Issues

The political system of Hong Kong is defined by the Basic Law. It promises the special administrative region “a high degree of autonomy.” (article 2) But the people of Hong Kong have often been reminded by Chinese officials that they have to think more of “one country” than “two systems.” In other words, limitations are put on “a high degree of autonomy.” 1 As the central authorities have become increasingly dissatisfied with the situation in the territory, their intervention has become more frequent and obvious. In late 2013, the officials of Central Liaison Office and pro-Beijing media defended the former’s lobbying of legislators as a routine which had to be accepted by the community. Hong Kong’s political system has often been described as “executiveled” because the Chief Executive enjoys strong presidential powers while the legislature’s role is relatively limited. For example, it has no role in government personnel matters; it cannot seek to increase government

1 Joseph Y. S. Cheng, “The Basic Law: Messages for Hong Kong People,” in Richard Y. C. Wong and Joseph Y. S. Cheng (eds.), The Other Hong Kong Report 1990, Hong Kong: The Chinese University Press, 1990, pp. 34–44.

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revenues and expenditure and cannot initiate public policy proposals without the approval of the Chief Executive. And the latter can refuse to allow government officials to testify before the Legislative Council because of security and public interest considerations.2 The Chief Executive is elected by an Election Committee dominated by the pro-establishment camp with business and professional elites, while 30 seats in the 70-seat legislature are returned by functional constituencies again dominated by the establishment. The pro-democracy movement has been campaigning for the democratization of the electoral systems since the latter half of the 1980s. And in 2010, the National People’s Congress Standing Committee in Beijing has agreed that election of the Chief Executive by universal suffrage in 2017 and that of all seats in the legislature by the same method in 2020 may be implemented. Hence political reform has emerged as a significant political issue since early 2013. Democratization has hardly made any progress in Hong Kong, yet there are many new trends and phenomena relating to political participation in recent years that deserve attention. After all, Hong Kong is still a vibrant city. This chapter attempts to study the basic factors affecting political participation in Hong Kong since its return to the Motherland and its new trends of political participation in this period. These factors include constitutional evolution and the political structure, changes in the social structure and economic development. While offering observations of concrete phenomena, this chapter will also consider the relevant theoretical issues so as to provide a better understanding of Hong Kong’s political development. In terms of constitutional evolution and the political structure, differences within Hong Kong’s pro-democracy movement have been fully exposed by the refusal of the central government of the People’s Republic of China (PRC) to provide a clear roadmap for the elections of

2 Ibid., pp. 44–52.

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the Chief Executive and the entire legislature by universal suffrage, and the acceptance of the PRC government’s slightly revised political reform package by the Democratic Party (DP) in 2010. There are elements in the pro-democracy movement who believe in a dialogue with both the central government and the Hong Kong Special Administrative Region (HKSAR) government. The Civic Party (CP) and the Labour Party (LP) will probably continue to stand firm on the political reform issue, and maintain their moderate style. The original League of Social Democrats (LSD) keeps on splitting. Thus there will be three rather distinct orientations. The establishment of the CP in 2006 and later the LP and the LSD, as well as the split of the Liberal Party soon after the Legislative Council elections in 2008, were significant developments in the pattern of political parties. Government lobbying of the legislators has become more complicated too. More significant are the intermediate and long-term changes in the social structure. In the past, 60–70% of the people of Hong Kong considered that they belonged to the middle socio-economic strata, they shared strong middle-class values.3 In the last two decades, however, Hong Kong increasingly has developed into an “M-shaped” society, where many educated young people have doubts whether or not they belong to the middle-class.4 As the gap between the rich and poor widens, and opportunities for upward social mobility are reduced and dissatisfaction in society accumulates. These trends naturally affect the inducements and patterns of political participation. There is a common concern among the people of Hong Kong: will political participation continue to radicalize? Will the minority, especially the young people, adopts more radical political actions in the context of rising political apathy among the majority? Naturally what is considered

3 See, for example, Lau Siu-kai, Society and Politics in Hong Kong. Hong Kong: The Chinese University Press, 1982; and Lau Siu-kai and Kuan Hsin-chi, The Ethos of the Hong Kong Chinese. Hong Kong: The Chinese University Press, 1988. 4 Omae Kenichi, Mxing Shehui: Zhongchan Jieji Xiaoshi de Weiji yu Shangji (M-shaped Society: The Crisis and Business Opportunities of the Vanishing of the Middle-Class), translated from Japanese by Liu Jinxiu and Jiang Yuzhen. Taipei: Shangzhou Chuban, 2006.

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radical in Hong Kong is still rather moderate when compared with European countries. Nevertheless there is some media discussion on the “post-80s generation,” and the Donald Tsang administration also felt the need to study the phenomenon.5 The performance of the HKSAR government obviously has an important impact on the mode of political participation in Hong Kong. Although there have not been any large-scale mass demonstrations after those in 2003–04, public opinion surveys reveal that there has been substantial dissatisfaction with the performance of the C. H. Tung and Donald Tsang administrations. Regarding the confrontational political reform issue, the people of Hong Kong realize that the Chinese leadership still has a big influence on the process and decision. As perceived by the DP chairman, Albert Ho, the Chief Executive’s role was “a bit dysfunctional.” 6 The C. Y. Leung administration only gets worse, as it has been plagued by scandals right from the beginning. After the massive protest rally on July 1, 2003, the Chinese leadership was worried about Hong Kong’s situation, and its intervention in Hong Kong politics has since been much strengthened. The pro-Beijing united front therefore has more resources to mobilize the people of Hong Kong and influence their political attitudes. The electoral machinery of the pro-Beijing political parties has become increasingly effective and sophisticated.7 However, in the direct elections to the Legislative Council in 2008, the pro-democracy camp still secured almost 60% of the votes, demonstrating that the people of Hong Kong valued effective checks and

5 See Michael E. DeGolyer, Protest and Post-80s Youth, A Special Report on the Post-1980s Generation in Hong Kong, Hong Kong Transition Project. Hong Kong: Hong Kong Baptist University, 2010. On December 17, 2010, the Central Policy Unit of the HKSAR government and the Applied Social and Economic Research Centre, Hong Kong University of Science and Technology, held a seminar entitled “Youth and Social Change” to discuss the issues of the territory’s post-1980s generation. 6 Apple Daily, July 10, 2010. 7 See Joseph Y.S. Cheng, “Introduction: Causes and Implications of the July 1 Protest Rally in Hong Kong,” in his edited book, The July 1 Protest Rally: Interpreting a Historic Event, 13–24. Hong Kong: City University of Hong Kong Press, 2005.

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balances against the HKSAR government. In the following Legislative Council elections in 2012, its share of the votes fell to about 55%, reflecting the growing unpopularity of the HKSAR government. Hong Kong’s economic development and its prospects influence the community’s demands. If the economy continues to grow, the people of Hong Kong may want stability and hope to solve their problems by their own efforts.8 When the economy stagnates, the demand for income redistribution will be strengthened. For example, in recent years before the release of the government budget, political parties make demands for various sweeteners for the community, like one extra monthly payment of social security allowance and old-age pensions, waiver of one or two months of public-housing rents, transport subsidies for low-income earners etc. In the long term, the HKSAR government must comprehensively consider its commitments regarding all types of social services.

2. Changes in the Structure of Hong Kong’s Social Stratification and Their Impact In 2012, Hong Kong’s per capita GDP reached US$37,352 per annum. It is a developed economy, however, according to a report of the United Nations Development Programme, Hong Kong’s income gap was the largest among all Asian cities in 2008 and 2009.9 The statistics from the Census and Statistics Department of the Hong Kong SAR government show that the Gini coefficient stood at around 0.43 in the 1970s. It rose sharply from 0.453 in 1986 to 0.518 in 1996 and continued to climb to 0.537 in 2011.10 In September 2010, Oxfam Hong Kong published its report on poverty in the territory which showed that the number of working-poor families

8 Lau and Kuan, The Ethos of the Hong Kong Chinese. 9 United Nations Development Programme, Development Report 2009; M Economy and Inequality, 2009: http://hdrstats.undp.org/en/indicators/161.htm. 10 Hong Kong, Census and Statistics Department, Half-Yearly Economic Report 2012: www. tradingeconomics.com/hong-kong/gdp-per-capita.

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had been increasing, from around 172,600 at the beginning of 2005 to about 192,500, a rise of 12% in five and a half years. The report also indicated that the incomes of the poorest one-fifth of the families had shown no improvement; and the median monthly incomes of the poorest one-tenth and one-fifth of families were HK$3,000 and HK$6,000 respectively. In comparison, the median monthly income of the richest onetenth of families had increased by 16% to HK$80,900, about 27 times that of the poorest one-tenth of families, reflecting that the gap between the rich and poor had widened in the past five years.11 In October 2010, the Hong Kong Council of Social Service released a research report, indicating that in the first half of the year, the population of “poor families” in Hong Kong reached 1.26 million, amounting to 18.1% of the population. The report also revealed that the median monthly income of the high-income household group had risen from HK$31,000 in 2009 to HK$32,950; while that of the low-income household group had basically remained unchanged at HK$9,000. The income gap between the two groups had been maintained at the ratio of 3.4:1 in the past four years; but in the first half of 2010, it rose to 3.7:1. Apparently, the income gap worsened in the economic recovery after the recent global financial tsunami.12 According to the Census and Statistics Department of the HKSAR government, in the quarter September–November 2009, the number of households with a monthly income of HK$25,000 and above had dropped from that in the corresponding period of the previous year; while the number of households in various groups with a monthly income of below

11 Ming Pao (Hong Kong daily newspaper), September 20, 2010. A “working-poor family” refers to a household with at least one member employed, and its monthly income is below one half of the median monthly income of local households with the same number of family members. 12 Ming Pao, October 4, 2010. A “poor family” is one whose income is less than or equal to one half of the median income of local families with the same number of members; at that time, the median monthly income of a one-member family was HK$33,275, two-member families HK$7,100, three-member families HK$10,000, and four-member families HK$12,000.

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HK$10,000 had risen, with growth rates ranging from 2.4% to 9.7%.13 Under such circumstances, grievances among the lower socio-economic strata easily accumulate. The gap between the rich and poor in Hong Kong was serious in the past. But it was like China today: the people of Hong Kong felt that their living standards had been improving, and would continue to improve. In other words, Hong Kong was a place full of opportunities; as long as one worked hard, one’s efforts would be rewarded. Even those who had little education with very limited upward social mobility prospects could still pin their hopes on their younger generation. In recent years, however, “inter-generational poverty” has emerged as a social issue, reflecting that many people in the territory no longer consider that Hong Kong is a place full of opportunities. They grumble that there has been no real improvement in their living standards since Hong Kong’s return to the Motherland, and they are not optimistic about its economic future. Meanwhile, they feel that work pressure and the pressure of making ends meet have been increasing. The rise in discontent naturally means an erosion of their identification with the territory’s political and economic systems. The HKSAR government understands that grievances in the community have been gathered and that its popularity is low; it therefore hesitates to introduce policies which will add to the people’s burdens, instead it often offers them sweeteners. Regarding the burdens, the Donald Tsang administration abandoned its plan of broadening the tax base and introducing a consumption tax. On the long-term financing of medical care, it also avoided any proposals demanding contributions from the people but simply chose to encourage individuals to join private-sector insurance schemes. The C. Y. Leung administration would like to make an important contribution in the housing area; but other than that, it is in a difficult position to deliver as it has been much handicapped by disunity within the establishment and its own scandals.

13 Ming Pao, January 20, 2010.

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The various subsidies and waivers provided by the annual budgets in recent years show that the Donald Tsang administration was eager to please all socio-economic strata. At the grassroots level, the demand for more income re-distribution through the government has been strengthening. When the economy is in good shape and the government enjoys a budget surplus, people ask for a reduction of their tax burden or more subsidies. When the economy deteriorates, people at the grassroots level demand assistance. When can the HKSAR government refuse these ad hoc subsidies and waivers? It is obvious that these budgetary measures will only have a very limited impact. A more serious problem is the gradual loss of the HKSAR government’s potential to increase taxation to improve social services and the community’s quality of life. The people of Hong Kong realize that the ageing population implies an increase in expenditure on medical care and other social services; environmental protection through energy conservation and pollution reduction demands efforts from both individuals and the government; and an enhancement of the territory’s long-term international competitiveness requires more investment in infrastructure and education. They are reluctant, however, to accept an increase in their tax burden, and those at the grassroots level demand further income re-distribution by the government. Meanwhile, the government avoids increasing the people’s tax burden, and has been forced to reduce its commitments in various social services. The government’s capability to re-distribute income in fact has been weakened, and those at the grassroots level receive less help. For example, the direct subsidy schools scheme, the introduction of sub-degree programs and the encouragement of private universities all reflect the HKSAR government’s attempts to reduce its commitment in the education sector; but they indirectly have a negative impact on the upward social mobility of the children of poor families and exacerbate the gap between the rich and poor.14

14 Joseph Y. S. Cheng, “The Deep Structural Problems of Direct Subsidy Schools” (in Chinese), Sing Tao Daily, December 16, 2010.

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Poverty adversely affects political participation. 15 Before 1997, the people of Hong Kong were not very enthusiastic about political participation, but they basically accepted and supported the existing political and economic systems, indicated a relatively high level of satisfaction with the government’s performance, and articulated few demands on the government. At present, Hong Kong people’s political participation is still not very enthusiastic; but their identification with the existing political and economic institutions has been in decline. They have a lower level of satisfaction concerning the government’s performance, stronger grievances with various phenomena of social injustice, and more demands and protests vis-à-vis the government. The latter tends to react rather passively to these demands and protests; it tries to reduce the people’s dissatisfaction and psychological expectations, but normally it cannot tackle the roots of the problems. The final years of the Tsang administration and the first year of the C. Y. Leung administration witnessed many more protest activities. Very often the radical young protesters were ready to confront the police, leading to arrests. Worse still, an increasing number of protesters now carry the old colonial flags in protest rallies to indicate their preference of the colonial administration over the HKSAR government, a phenomenon which has caused considerable anger in Beijing and within the pro-Beijing united front.

3. Meaningful Political Participation and Rational Deliberations In the 1990s, theories on deliberative democracy were developed in Western political science, as a response to the perception and analysis

15 Amartya Sen, “Foreword,” in From Poverty to Power, ed. Duncan Green. Oxford: Oxfam International, 2008, xiii–xvi.

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of democracy as the articulation and aggregation of interests.16 The latter theories were basically theories of rational choice, based on the premise that an individual citizen or voter would rationally consider the opportunities and restrictions of each option in making his or her decision. Democratic institutions therefore allow voters to pursue their interests freely and equally. Deliberative democracy imposes a higher demand on citizens. Its theories are influenced by John Rawls’ concept of political justice and the emphasis of John Stuart Mill on open debate in the 19th century. Deliberative democracy theories hold that citizens have the fundamental cognitive capabilities to engage in rational debate; they would consider not only their individual needs, but also the public interest. The latter implies that individuals have ethical considerations; and they will re-order their priorities in the course of the debate. This kind of political participation brings its own satisfaction, and is in accord with the belief that the full development of the individual can only be secured through meaningful political participation. The people of Hong Kong have a fine tradition of reason and moderation. Although a fully democratic political system has yet to be established, people enjoy freedom of speech and the media offer platforms for free discussions. Self-censorship has certainly become more serious in the past two decades, but critics will not find it impossible to articulate their views.17 In recent years, Internet media have been offering convenient and interactive discussion platforms for various small groups. According to a survey conducted in the U.S. in February–March 2003, about two-thirds of respondents indicated that they had participated in some kind of regular political discussions in the past year, and a quarter of

16 Shawn W. Rosenberg, “Introduction: Theoretical Perspectives and Empirical Research on Deliberative Democracy,” in Deliberation, Participation and Democracy, ed. Shawn W. Rosenberg. Basingstoke, Hampshire and New York: Palgrave MacMillan, 2007: 1–22. 17 Joseph M. Chan and Francis L.F. Lee (eds), Media and Politics in Post-Handover Hong Kong. London: Routledge, 2008.

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them had taken part in at least one organized forum.18 It is likely that the participation rates of Hong Kong people would be substantially lower. On the other hand, there are factors of political culture: People of Hong Kong often avoid political discussions in social gatherings. In qualitative terms, however, people of Hong Kong should not do too badly. Local newspapers usually offer considerable space for commentaries and political columns; and their quality is respectable. The problem is that serious readers are few, and the discussions often only involve opinion leaders. In the past decade and more, high quality in-depth investigative reports in newspapers and the electronic media have become rare; budgetary considerations seem to be the principal factor. Various types of civic groups organize many open forums and seminars; the quantity is impressive, and the quality is acceptable. Again, participants are few; and their major purpose seems to be to attract media attention rather than to offer platforms for the public to articulate its views. An encouraging development has been the emergence of a number of private think-tanks in the past 20 years. Their scale and resources obviously cannot compare with those in the Western advanced countries — there is even a considerable gap between them and those in Taiwan — but at least this is a healthy beginning. Given the financial resources of the local major business groups, they really should do more to build a better research foundation for policy discussions. At this stage, the more prestigious, pro-establishment local think-tanks include the Business and Professionals Federation of Hong Kong, the Better Hong Kong Foundation and the Bauhinia Foundation; the latter was generally perceived to be in active support of the previous Chief Executive, Donald Tsang. The incumbent Chief Executive, C. Y. Leung, had very close ties with the One Country, Two Systems Research Institute. Two key members of his team, Cheung Chi-kong and Shiu Sin-por, were formerly

18 Fay Lomax Cook, Michael X. Delli Carpini, and Lawrence R. Jacobs, “Who Deliberates? Discursive Participation in America,” in Deliberation, Participation and Democracy, ed. Rosenberg, 25–44.

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key leaders of the institute. The Hong Kong Policy Research Institute is no longer very active, though it attracted a lot of attention in the early years of the C. H. Tung administration; and the Social and Economic Policy Institute has ceased operation. Maintaining a think-tank of considerable scale on a long-term basis is certainly very challenging. The Lion Rock Institute and Synergy Net are politically neutral; while the political stand of the Hong Kong Democratic Foundation and the Civic Exchange is close to the pro-democracy camp.19 As political parties in Hong Kong have limited resources for policy research, think-tanks’ research outputs offer serious policy options different from those of the government. They serve to promote meaningful policy discussions which are an important channel of political participation. There is still ample room for further development of think-tanks in the territory. In the controversy on the construction of high-speed railways, the work of proposing an alternative option challenging the government plan mainly fell upon two or three professionals; and it demonstrated the lack of policy research resources outside the government. A serious handicap in promoting rational deliberations in political participation in Hong Kong is the deep ideological schisms within the political elites. The chances of accepting the other side’s views are low, and the discussions center on the publicity effects generated. Policy debates in the Legislative Council and its hearings seldom attract the community’s attention. Legislators emphasize securing sound bites in the media; and policy research is obviously not their priority. The vast majority of legislators depend on their respective small staff teams with limited policy research capabilities and resources. Top government officials tend to be cautious, and they want to make sure that they make no mistakes in public. Their strategy is to lobby for the support of the pro-establishment legislators; and the most effective way is to make concessions to satisfy

19 See Tony Latter, Hands on or Hands off? The Nature and Process of Economic Policy in Hong Kong. Hong Kong: Hong Kong University Press, 2007: 125–28.

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their respective constituencies’ demands. This pattern of parliamentary politics does not contribute much to meaningful political participation. Theories on deliberative democracy stress adjusting the priorities of one’s own interests in debates as well as balancing one’s own interests with those of the public. But the existing political cleavages have been exacerbated because, given the “executive-led” system of government, the HKSAR government is well protected by the electoral system as stipulated by the Basic Law, and there is no genuine political competition. The Chief Executive is picked by the Chinese leadership; and on important policy issues, the pro-establishment legislators will support the HKSAR government once Beijing has taken a stand. They will challenge the HKSAR government on minor policy issues like landfill, though, so as to demonstrate that they are also ready to fight for the people’s interests. Political reforms are certainly one of the most significant concerns of the Hong Kong community. But in the recent decade and more, there has been only political mobilization, and almost no rational debates. Members of the pro-democracy movement understand that the Chinese leadership has no intention of allowing genuine democracy in the territory, hence their arguments are aimed at mobilizing people to support the democratic cause in elections and protest activities. At the same time, the defense put forward by politicians of the pro-Beijing united front is far from convincing; nobody realistically believes that the conditions in Hong Kong are not yet ripe for democracy. But the united front has substantial mobilizing power; it has captured the government and a majority in the legislature and the District Councils. Apparently there is no broadly-based political participation concerning important livelihood issues on which there are no well-defined political cleavages. The Donald Tsang administration raised the important question of broadening the territory’s tax base. This was related to the level of the government’s revenues, and the future financial resources in support of various types of social services. Hence, this was an issue with a significant impact on the future welfare of the people of Hong Kong. Yet there were not much serious discussions on the issue; the general response was that

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people were reluctant to accept an increase in tax burden, and the Donald Tsang administration abandoned the idea. Long-term financing of medical care is a severe challenge for an ageing population. In the U.S. during the Clinton and Obama administrations, reform of the medical insurance system was hotly debated among all stakeholders, i.e., the entire population. But in Hong Kong, most people are reluctant to contribute; they believe that the government has respectable fiscal reserves and therefore it should assume the responsibility for health care. The Tsang administration finally opted to encourage people to acquire their medical insurance policies from the private sector with financial incentives provided by the government. In the final years of the British administration, especially during the administration of Governor Chris Patten, it tried hard to establish mutual trust with all political parties. On financial and economic policies, the British administration attempted to secure the votes of the proestablishment legislators; on political reforms and human rights issues, it turned to the pro-democracy legislators for support.20 This required superb political skills; but all political parties felt that they had a constructive role to play in the government’s policy-making process. During the HKSAR government era, as Donald Tsang himself declared, there would be “differential treatment” depending on one’s degree of support for the government. Political cleavages deepen in the absence of political competition, i.e., the opportunity for the government to be replaced by the opposition. As the pro-democracy groups have been pushed outside of the political establishment, they feel they have no chance to influence government policies and therefore have little incentive to engage in a meaningful dialogue with top government officials. This “differential treatment” phenomenon has gradually spread to the government’s advisory committee system.

20 Joseph Y. S. Cheng, “Sino-British Negotiations and the Challenges of the British Administration in the Final Transition Years,” (in Chinese) in Transition in 1997: Hong Kong’s Challenges, ed. Joseph Y. S. Cheng and Sonny S.H. Lo. Hong Kong: The Chinese University Press, 1997, 23–24.

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The government advisory committee system has been an important channel for formal political participation. The traditional British model was to involve representatives from all representative, concerned groups in the relevant advisory committee in the policy sector. The British colonial administration was under no pressure to be accountable, and the appointees were appointed on an individual basis. The pressure on the British administration was quite limited, although in the 1970s and 1980s, it began to actively involve some critics of the government.21 The HKSAR government made no attempt to improve the system further, instead there has been some serious backsliding. The first issue is the membership, which tends to be the same group of four or five hundred people. They are mainly the senior executives of the major corporations and the top professionals with strong business ties with them. As more and more young family members of local tycoons receive appointments, the suspicion of top government officials trying to curry favor with the tycoons has been strengthening. Senior government officials already spend considerable time on handling the media and the legislators, few of them are still willing to make good use of advisory committees to engage in serious consultation. As a result, most advisory committee members feel neglected. Those who are ready to offer critical views consider themselves cold-shouldered by government officials, who only welcome those members who are ready to defend government policies in public and who would not make their jobs more complicated.

4. Civil Society and Social Movements Political participation offers opportunities for citizens to develop their full potential, and makes them realize that they can make an impact on the government; in the words of Premier Wen Jiabao, “to let people live

21 Joseph Y. S. Cheng, “Political Modernisation in Hong Kong,” The Journal of Commonwealth & Comparative Politics 27(3) (1989): 306.

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happily with dignity.” 22 From the government’s point of view, low-level political participation will not exert pressure on the government, but it will not give the government a high level of legitimacy either. A politically apathetic population gives the government no trouble, but the latter cannot achieve much either; this was the kind of situation Donald Tsang faced in his initial years. But as his popularity declined, he gradually lacked the support and the political will to engage in serious policy reforms or even tackle controversial policy issues.23 Due to the split of the establishment in the dirty electoral campaign fought between Henry Tang and C. Y. Leung, whose administration was subsequently tarnished by his own scandals and those of his team members, Leung’s plight was even worse than that of Donald Tsang in his final years; even though Leung had intended to push for reforms. In a modern society, work pressure is high and life is busy, people’s enthusiasm for political participation easily falls. Even in European countries with a long tradition of democracy, declining enthusiasm for political participation is still a challenge. Hence the concept of “participatory engineering” has emerged in the academic literature.24 The concept largely refers to the efforts of political elites to promote political participation through reforms of democratic institutions. In 2002, the ruling coalition of the Social Democratic Party and the Green Party in Germany proposed an amendment of the national constitution in parliament to introduce direct democracy measures at the federal level. Its purpose was to revive the nation’s declining interest in political participation.

22 Jing Dongyu, “Wen Jiabao retires in a hidden way, the Development and Reform Commission finds it hard to suppress inflation” (in Chinese), Cheng Ming Monthly, No. 398, December 2010, 18. 23 See, for example, Joseph Y. S. Cheng (ed.), Evaluating the Tsang Years 2005–2012. Hong Kong: City University of Hong Kong Press, 2013. 24 Thomas Zittel, “Participatory Democracy and Political Participation,” in Participatory Democracy and Political Participation, ed. Thomas Zittel and Dieter Fuchs, 9–28. London and New York: Routledge, 2007.

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Hong Kong has yet to establish a democratic political system, and “participatory engineering” is beyond the community’s horizon. The proestablishment political parties normally believe that low voter turnout rates are in their favor; and the government naturally hopes that few people would take part in protest activities. On the other hand, pro-democracy political parties and a vast majority of NGOs are concerned with the development of civil society and the promotion of political participation among the people. But they have limited resources, and tend to concentrate on issues which can attract people’s attention. Some Western political scientists hold different views. Their research reveals that people who have higher educational qualifications and incomes are more interested in politics and can better cope with the modern world’s complicated political life. They therefore consider that economic development will have a greater positive impact on political participation than political institutions.25 There has been no specific study on Hong Kong in this area, hence only some superficial observations can be offered at this stage. In the District Boards (later District Councils) elections in the 1980s and 1990s, voter turnout rates in the New Territories were higher than those in the urban areas, with the highest rates in districts where there were high concentrations of indigenous villagers. In the urban districts, there were usually higher voter turnout rates in areas of high concentrations of public housing estates; voter turnout rates were lowest in upper-middleclass residential districts like Tsim Sha Tsui, Yaumatei, Happy Valley and Mid-levels.26 This pattern has not changed much in recent years. Naturally, voter turnout rates are just one indicator of political participation, and the above pattern mainly reflected network mobilization power. But voting in elections is considered the most important act of political participation;

25 Ibid., 10. 26 Joseph Y. S. Cheng, “The 1988 District Board Elections — A Study of Political Participation in the Transitional Period,” in Hong Kong: The Challenge of Transformation, ed. Kathleen CheekMilby and Miron Mushkat, 116–149. Hong Kong: Centre of Asian Studies, The University of Hong Kong, 1989.

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and the general explanation for the low voter turnout rates among the upper-middle socio-economic strata in Hong Kong is that they have nothing to ask for in terms of social services provided by the government. Hence they have low motivation to vote. On the other hand, leaders and members of the most influential business and professional groups in Hong Kong are all well educated with high incomes. They play important roles in the government’s policy-making process, and often participate in the government’s advisory committees. They are the political elite in Hong Kong. In the early 1980s, when Beijing and London began to prepare and mobilize for the negotiations on Hong Kong’s future, the pro-Beijing united front also actively approached community leaders in all socio-economic strata and sectors. There was a major setback during the Tiananmen Incident and its aftermath, but united front work soon recovered. After the establishment of the HKSAR government, its development has become even more prominent. Joining these united front organizations is now perceived as a channel to become a member of the establishment; activists in these organizations have a good platform to stand for District Council elections, and have a chance to be appointed to the government’s advisory committees. Those who are interested in pursuing a political career, especially those who do not come from rich families, are strongly tempted to consider these organizations. Appointments as political assistants and deputy heads of policy bureaus are apparently very attractive. For many small businessmen and professionals who are not interested in politics, united front organizations are valuable for establishing useful economic contacts. In view of the rapid economic integration between Hong Kong and the Mainland, many owners of small and medium-sized enterprises and professionals believe that membership of the united front organizations will bring them convenience and opportunities in developing their businesses in the Mainland, and the latter is increasingly important to them. In the past two decades or so, civic groups outside the establishment have also been enjoying healthy development, in line with political

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theories on the relationship between economic development and political participation. People of Hong Kong enjoying respectable living standards seek satisfaction in life through social and political participation. In the same period, social and political participation in Taiwan have shown remarkable progress. At the end of the Chiang Ching-kuo regime in the late 1980s, political liberalization — symbolized by the termination of the ban on political parties and newspapers — led to an outburst of enthusiasm for political participation that had been suppressed during the previous decades of authoritarian rule. This enthusiasm probably reached a peak in the presidential election in 2000. After that, corruption and the emotional, non-rational elements in the elections led to a return of political apathy among a segment of the electorate. The development of civil society has maintained its momentum nevertheless. Various religious groups, philanthropic bodies, environmental NGOs, etc. have all demonstrated substantial resources and mobilization power. A considerable proportion of the people feel that their participation in the civil society has brought them satisfaction. The overthrow of Presidents Ferdinand Marcos and Joseph Estrada by “people power revolutions” in the Philippines was indeed impressive. Although corruption in politics continues to be a serious problem, and political and economic power has been captured by a small number of families, the development of civil society has been healthy, and the Filipinos are enthusiastic in social and political participation. In Indonesia, since the downfall of President Suharto in the wake of the Asia-Pacific financial crisis in 1998, political democratization and the development of civil society have been remarkable so that commentators consider Indonesia is the most democratic country in Southeast Asia. The performance of the student movement and the women’s rights campaign is especially outstanding; within a short period of time, its media, in both qualitative and quantitative terms, have made significant improvements. Hong Kong’s traditional political culture neglects participation and emphasizes tackling one’s problems through one’s own efforts. In the past decade, various types of civic groups have emerged, attracting many young

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New Trends of Political Participation in Hong Kong

participants and grassroots activists. These groups are usually small in size with very limited resources, but they have often articulated issues not taken up by the major political parties. The campaigns to preserve the Queen’s Pier, Lee Tung Street (Wedding Cards Street) and Choi Yuen Village; the protest against the government’s high-speed railway plan, and so on, to a considerable extent caught the government and the major political parties by surprise. The participants were social activists of the “post-80s” generation. These social movements or campaigns demonstrate that the younger generation feels the existing political parties do not represent them; and some of the young activists may not be keenly interested in the struggle for democracy. They want to choose their own issues, and campaign in their own style; to them, participation probably more significant than achieving the objectives of their campaigns.27 These activists of the “post-80s” generation have their own networks and modes of mobilization. They are not much motivated to get themselves organized, apparently they do not seem to be active in establishing their own organizations; and they want to maintain a distance from the pro-democracy political parties. Their activities attract a lot of media attention, and they are very active in the new Internet media, thus they have a considerable influence on the younger generation. A new star among these activists is the Scholarism group which successfully blocked the introduction of “Moral and National Education” as a subject in the school curriculum in the autumn of 2012. This group of senior high school students and young university students soon won the admiration of the community. In the July 1 protest rally in 2013, they raised more money than any other pro-democracy group or political party. From an academic point of view, this type of political participation does not focus on the establishment of constitutional, democratic institutions, but much more on mobilization and participation, thus securing agenda-setting

27 See note 3, above.

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1.  New Trends of Political Participation in Hong Kong

23

power through the articulation of issues at the community level. This type of participation concentrates on the community; participation itself brings satisfaction, and participation itself is the meaning and objective. In the long-term, this type of participation may serve to promote more inclusive and accountable political institutions, develop a participatory political culture, and cultivate political talents outside the establishment. The social movements concerned are careful to avoid capture by political parties or political elites, so as eventually go against their original purposes.28 This reflects the weaknesses of existing political parties and political elites, and highlights the danger of political fragmentation.

5. Differences within the Pro-Democracy Movement Even in democratic countries, coalitions of opposition parties or opposition parties not in alliance or coalitions find it difficult to maintain co-operation on a long-term basis if there is no chance for them to capture government together. There is a natural tendency to co-operate with the governing party, especially when it suffers from a setback in a general election and no longer controls an absolute majority in the legislature. The New Komeito in Japan is a good example. Another tendency is to become radicalized, and downgrade the importance of parliamentary politics, as is often the case with small communist parties in European countries. Since Hong Kong’s return to the Motherland, the pro-democracy parties have been in decline; further, they have been kept outside the political establishment by the HKSAR government. Both of these tendencies have been strengthening at the same time. In the first place, arguments on the party line first emerged in the DP, whose appeal was in decline due to other factors as well. Under such circumstances, the CP was established in early 2006, followed by the League of Social Democrats.

28 John Gaventa, “Foreword,” in Mobilizing for Democracy: Citizen Action and the Politics of Public Participation, ed. Vera Schattam, P. Coelho and Bettina von Lieres. London and New York: Zed Books, 2010, xiii and xiv.

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New Trends of Political Participation in Hong Kong

Intense competition among the pro-democracy political parties in Legislative Council elections has become the norm; and this is largely related to the electoral system. In the direct elections to the geographical constituencies in the Legislative Council elections, voters have one vote each in the five multi-member constituencies. There are no incentives for the pro-democracy parties to co-operate; in fact, pro-democracy candidates within the same constituency are in competition for the same pool of voters who are in support of the democracy cause. In contrast, in District Council elections, which adopt the “single-member constituency, simple-majority” system, pro-democracy parties understand that it is a case of political suicide if two or more of their candidates compete in the same constituency. In fact, they will be severely criticized by the voters in support of the pro-democracy movement for their disunity. In the District Council elections in 2003, the pro-democracy parties initiated a formal co-ordination mechanism and secured a major victory, though the pro-establishment parties’ support for “the Article 23 legislation” was the principal cause of their considerable fall in support. In the District Council elections in 2007, the co-ordination mechanism was basically maintained. Although the League of Social Democrats withdrew from the mechanism in the District Council elections in 2011, the other pro-democracy political parties still worked hard to uphold the co-ordination mechanism. To ensure that only one pro-democracy candidate competes in each District Council constituency is an arrangement of mutual benefit. That is why the co-ordination mechanism largely works despite the differences among the pro-democracy parties. As they are in perpetual opposition without effective participation in the government’s policy-making processes, the pro-democracy parties have limited appeal to various types of interest groups. The business and professional groups are important enough to have frequent direct contacts with the government to influence its policies, and they do not maintain a dialogue with the pro-democracy parties. The limited contacts between the two sides are mainly for public relations purpose; in fact, within the “executive-led” system of government, the business and professional

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1.  New Trends of Political Participation in Hong Kong

25

groups do not feel much need to have a meaningful dialogue with the proestablishment political parties either. The civic groups outside the political establishment are usually very cautious in their co-operation with the pro-democracy political parties. One reason is the traditional political culture; the groups concerned do not want to involve political parties in their negotiations with the government. There were unhappy experiences in co-operation in the 1980s and 1990s between the pro-democracy political parties and some grassroots pressure groups; the latter felt that they had been exploited by the former for publicity. Basically civic groups outside the political establishment jealously guard their independence and purity, they want to fight for their own unique missions and avoid being involved in the political interests and considerations of political parties. Civic groups which value an effective dialogue with the government naturally desire good relations with it; and anti-establishment pressure groups want to grasp the initiative of their political struggles in their own hands and refuse to allow the initiative to pass to the pro-democracy political parties.29 This alienation and mutual distrust between the latter and the anti-establishment pressure groups have perhaps been exacerbated in recent years. As dissatisfaction with the HKSAR government grows, some radical groups perceive all political parties as part of the political establishment and refuse formal co-operation even with the pro-democracy political parties. In contrast to the European countries, there are very few issues and movements in Hong Kong that generate close co-operation between the anti-establishment political parties and civic groups. To some extent, as the cause of fighting for democracy has been dominated by the pro-democracy parties, most civic groups of young people tend to find issues of their own interest. They are therefore not too

29 Francis L .F. Lee and Joseph M. Chan, “Making Sense of Participation: The Political Culture of the Pro-Democracy Demonstrations in Hong Kong,” China Quarterly, No. 193 March (2008): 84–101.

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New Trends of Political Participation in Hong Kong

keen concerning the struggle for democracy. In 2007, the protest movement to preserve the Queen’s Pier seemed to have surprised the government and all major political parties. Apparently the pro-democracy movement has not been able to satisfy the younger generation’s social demands. Admittedly, the pro-democracy movement has failed to win the trust and wholehearted support of the people regarding the most significant livelihood issues ranging from housing, education, medical care to minority rights, environmental protection and animal rights. As the community realizes that the Chinese leadership opposes genuine democracy for the territory and significant breakthroughs cannot be achieved in the foreseeable future. It is difficult to maintain a high level of enthusiasm for fighting for democracy among a majority of people of Hong Kong. Despite all these serious obstacles, the pro-democracy parties still secure about 55–60% of the votes in the direct elections to the Legislative Council. The community counts on them to provide effective checks and balances vis-a-vis the HKSAR government. It appreciates the significance of checks and balances, and it understands that the corruption of power. Political wisdom of people of Hong Kong balances the increasing political mobilization capability of the pro-Beijing united front. The latter offers important services at the grassroots level through its political groups and grassroots organizations. Their distribution of rice, edible oil, moon-cakes etc., organization of snake-soup banquets and holiday trips, and assistance in handling applications to various government departments, are valuable to families with low incomes and limited education. These services help the united front to build effective networks; and the networks in turn become important mobilization instruments in elections and political campaigns. At the same time, the HKSAR government places a lot of emphasis on propaganda and image-building in recent years, as reflected by the significant increase in resources spent in these fields. Senior civil servants often complain that their superiors pay too much attention to the criticisms of the media. Certainly the HKSAR government’s propaganda is one type of political mobilization, it is not very effective at this stage, but it is difficult to assess its impact on the community’s political participation in the long term.

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27

6. General Observations In the past, the colonial administration successfully secured the support from the people of Hong Kong and its legitimacy through its performance in economic development and social stability. Since the territory’s return to the Motherland, most people have not perceived any obvious sustainable improvement in living standards on their part, instead they consider that the gap between the rich and poor has been widening, upward social mobility opportunities have been in decline, and the government has been favoring major business groups in various ways. As reflected by the published opinion surveys, the community’s evaluation of and support for the HKSAR government have been deteriorating, and there is a crisis of “legitimacy deficit” on its part (see Tables 1.1 and 1.2). Lack of progress in democratization has certainly disappointed the supporters of the prodemocracy movement. Apparently the Donald Tsang administration was aware of its “legitimacy deficit,” hence it avoided controversial policy issues like consumption tax, and mandatory contributions to a medical insurance fund. In first year of the C. Y. Leung administration, there was already speculation that he might soon have to step down. While serious controversies and setbacks have been avoided, people of Hong Kong realize that they cannot expect major policy reforms from the government. The latter gradually has lost the appeal to persuade the community to take some “bitter pills,” instead it becomes accustomed to distribute “candies” to please the public. Within the framework of an “executive-led” system of government, the role of political parties is relatively limited. The difficulties and inadequacies of the pro-democracy movement have been considered above, the effectiveness of the government’s advisory committee system has also been in decline; under such circumstances, the room for normal expansion of meaningful political participation for people of Hong Kong is not obvious. While there has been considerable accumulation of grievances in the community, so far the general response from people of Hong Kong has

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Table 1.1 Satisfaction with the policy direction of the Donald Tsang Administration and the C. Y. Leung Administration, August 2005–September 2011 Responses to the question: “On the whole, how satisfied are you with Donald Tsang Yam-kuen/C. Y. Leung’s policy direction?” (per poll) Date of survey 17–20/10/2011

Successful cases

Very satisfied

Quite satisfied

Half-half

Quite dissatisfied

Very dissatisfied

Don’t know/ Hard to say

Total

Mean value*

518

4.2%

25.1%

25.8%

26.9%

14.5%

3.4%

100.0%

2.8

13–14/10/2011

520

3.5%

29.3%

26.1%

24.3%

11.8%

4.9%

100.0%

2.9

26–27/10/2010

523

2.8%

31.1%

28.2%

24.8%

10.7%

2.4%

100.0%

2.9

14–16/10/2010

507

3.8%

28.4%

34.2%

19.8%

8.2%

5.7%

100.0%

3.0

20–26/10/2009

513

2.5%

22.9%

28.8%

23.8%

17.2%

4.9%

100.0%

2.7

15–17/10/2009

508

2.1%

23.1%

38.5%

24.9%

8.9%

2.6%

100.0%

2.8

18–24/8/2009

1,020

2.9%

26.7%

44.8%

17.5%

7.0%

1.1%

100.0%

3.0

16–18/2/2009

1,001

2.8%

25.4%

35.5%

21.7%

10.0%

4.7%

100.0%

2.9

27–29/10/2008

1,015

2.8%

22.1%

35.6%

24.0%

11.3%

4.2%

100.0%

2.8

17–19/10/2008

505

2.4%

20.0%

38.3%

21.8%

10.2%

7.4%

100.0%

2.8

18–20/8/2008

1,000

3.7%

25.3%

35.3%

24.1%

9.7%

1.9%

100.0%

2.9

18–20/2/2008

1,037

5.8%

41.1%

36.2%

10.7%

1.8%

4.4%

100.0%

3.4

10/10/2007

1,023

5.6%

45.4%

30.1%

7.1%

2.4%

9.4%

100.0%

3.5

20–24/8/2007

1,010

5.3%

47.2%

33.6%

6.4%

2.3%

5.2%

100.0%

3.5

22–26/2/2007

1,014

7.0%

38.6%

39.2%

8.6%

2.5%

4.1%

100.0%

3.4

10/11/2006

1,027

1.8%

34.6%

36.7%

9.9%

3.9%

13.1%

100.0%

3.2

21–23/8/2006

1,019

6.8%

46.5%

35.3%

6.0%

2.1%

3.3%

100.0%

3.5

17–21/2/2006

1,017

6.9%

44.3%

33.6%

5.8%

1.8%

7.7%

100.0%

3.5

12/10/2005 22–25/8/2005

914

6.8%

45.1%

23.3%

3.6%

0.3%

20.9%

100.0%

3.7

1,004

5.5%

42.2%

29.6%

4.4%

1.9%

16.4%

100.0%

3.5

* The mean value is calculated by quantifying all individual responses into a score of 1, 2, 3, 4 or 5 marks according to their degree of positive level, where 1 is the lowest and 5 the highest, and then calculating the mean of these scores. Source: Public Opinion Programme, The University of Hong Kong: “On the whole, how satisfied are you with Donald Tsang Yam-kuen's policy direction? (per poll)” ; Public Opinion Programme, The University of Hong Kong: “On the whole, how satisfied are you with Leung Chun-ying's policy direction?” .

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Table 1.2 Satisfaction with the overall performance of the Donald Tsang Administration and the C. Y. Leung Administration, August 2005–June 2013 Responses to the question: “Are you satisfied with the overall performance of the HKSAR government?” (per poll)

Date of survey

Total sample

Subsample

Very positive

Quite positive

Half-half

Quite negative

Very negative

Don’t know/ Hard to say

13–19/6/2013

1,040

652

1.8%

18.1%

27.7%

29.3%

21.9%

1.3%

100.0%

2.5

644

20–23/5/2013

1,023

553

2.7%

23.2%

29.1%

24.9%

18.8%

1.2%

100.0%

2.7

547

17–25/4/2013

1,023

599

2.8%

25.8%

34.9%

20.4%

15.5%

0.7%

100.0%

2.8

595

21–27/3/2013

1,003

666

3.0%

25.0%

36.4%

22.7%

11.3%

1.5%

100.0%

2.9

655

18–21/2/2013

1,027

546

3.8%

24.5%

30.7%

24.0%

14.3%

2.8%

100.0%

2.8

531

18–24/1/2013

1,024

635

2.7%

23.2%

26.1%

26.1%

19.3%

2.5%

100.0%

2.6

618

18–28/12/2012

1,013

661

3.7%

25.3%

31.4%

21.2%

16.6%

1.9%

100.0%

2.8

649

14–22/11/2012

1,020

608

3.4%

21.9%

32.7%

28.7%

12.2%

1.1%

100.0%

2.8

599

17–23/10/2012

1,021

612

3.3%

21.4%

27.6%

23.7%

21.9%

2.2%

100.0%

2.6

599

18–27/9/2012

1,037

640

3.4%

22.9%

22.7%

28.2%

20.5%

2.3%

100.0%

2.6

625

14–18/8/2012

1,019

568

3.6%

18.6%

25.9%

24.9%

21.5%

5.4%

100.0%

2.6

537

17–20/7/2012

1,018

661

1.7%

23.8%

24.7%

21.3%

20.4%

8.0%

100.0%

2.6

608

19–25/6/2012

1,048

667

1.2%

18.7%

26.2%

30.6%

21.8%

1.5%

100.0%

2.5

656

18–24/5/2012

1,001

539

3.3%

16.5%

30.6%

29.5%

17.5%

2.6%

100.0%

2.6

525

17–23/4/2012

1,034

538

1.1%

21.3%

28.4%

31.6%

16.4%

1.2%

100.0%

2.6

532

16–21/3/2012

1,020

582

2.9%

23.8%

28.1%

25.6%

17.8%

1.8%

100.0%

2.7

572

20–22/2/2012

1,012

583

2.2%

17.8%

25.7%

35.4%

17.3%

1.6%

100.0%

2.5

573

12–17/1/2012

1,020

558

1.7%

24.1%

28.2%

30.9%

13.8%

1.2%

100.0%

2.7

552

14–28/12/2011

1,035

508

2.1%

19.6%

30.2%

30.8%

16.2%

1.1%

100.0%

2.6

502

15–21/11/2011

1,023

521

2.5%

21.9%

29.2%

30.6%

14.0%

1.7%

100.0%

2.7

506

13–20/10/2011

1,013

639

2.5%

21.4%

26.8%

32.4%

15.9%

1.0%

100.0%

2.6

632

13–20/9/2011

1,001

613

1.9%

20.3%

30.5%

24.9%

20.6%

1.6%

100.0%

2.6

603

16–23/8/2011

1,009

507

2.6%

19.4%

29.0%

25.8%

21.7%

1.5%

100.0%

2.5

499

21–25/7/2011

1,004

502

2.2%

14.4%

30.0%

31.5%

21.2%

0.7%

100.0%

2.4

499

23–29/6/2011

1,036

606

2.6%

17.6%

28.2%

27.1%

23.3%

1.2%

100.0%

2.5

598

16–18/5/2011

1,007

623

2.5%

18.5%

34.2%

26.2%

17.2%

1.4%

100.0%

2.6

614

22/4–2/5/2011

1,072

768

3.3%

19.1%

32.4%

27.5%

17.5%

0.2%

100.0%

2.6

766

14–23/3/2011

1,006

601

3.1%

22.0%

35.1%

25.5%

14.3%

0.0%

100.0%

2.7

584

21–25/2/2011

1,020

1,020

2.0%

23.9%

33.3%

24.3%

15.7%

0.8%

100.0%

2.7

1,012

01_Political_Participation_2014_EC01.indd 29

Total

Mean value*

Base

2014/7/3 6:07:07 PM

18–26/1/2011

1,018

1,018

2.7%

27.2%

37.2%

21.1%

10.5%

1.3%

100.0%

2.9

1,004

17–22/12/2010

1,017

1,017

2.1%

26.8%

35.8%

22.6%

12.1%

0.6%

100.0%

2.8

1,010

17–27/11/2010

1,001

1,001

3.3%

27.7%

38.2%

20.9%

8.8%

1.1%

100.0%

3.0

989

26–30/10/2010

1,009

1,009

2.6%

27.4%

35.4%

24.2%

9.8%

0.6%

100.0%

2.9

1,003

18–24/9/2010

1,010

1,010

4.4%

32.2%

37.3%

17.5%

8.3%

0.3%

100.0%

3.1

1,006

17–20/8/2010

1,006

1,006

3.4%

23.6%

32.9%

24.2%

14.8%

1.2%

100.0%

2.8

994

19–21/7/2010

1,007

1,007

3.2%

26.4%

28.8%

25.4%

15.6%

0.6%

100.0%

2.8

1,000

18–22/6/2010

1,009

1,009

3.6%

27.1%

24.2%

26.8%

17.0%

1.3%

100.0%

2.7

996

18–20/5/2010

1,015

1,015

1.5%

23.6%

31.6%

26.8%

15.8%

0.7%

100.0%

2.7

1,008

26–29/4/2010

1,010

1,010

3.2%

24.7%

33.9%

26.5%

11.1%

0.6%

100.0%

2.8

1,001

23–25/3/2010

1,012

1,012

3.9%

26.5%

33.7%

23.4%

12.0%

0.5%

100.0%

2.9

1,007

22–27/2/2010

1,021

1,021

3.8%

26.3%

34.6%

24.4%

10.1%

0.9%

100.0%

2.9

1,011

18–21/1/2010

1,013

1,013

3.0%

26.5%

30.7%

24.6%

13.7%

1.4%

100.0%

2.8

998

14–17/12/2009

1,000

1,000

4.0%

28.3%

34.9%

21.5%

11.1%

0.2%

100.0%

2.9

998

19–23/11/2009

1,001

1,001

2.9%

27.9%

30.2%

25.6%

12.7%

0.8%

100.0%

2.8

993

20–30/10/2009

1,005

1,005

3.1%

24.3%

32.3%

23.2%

16.0%

1.1%

100.0%

2.8

994

14–17/9/2009

1,004

1,004

3.3%

28.1%

38.8%

20.2%

9.2%

0.4%

100.0%

3.0

1,000

18–24/8/2009

1,020

1,020

2.6%

29.2%

39.9%

20.4%

7.4%

0.4%

100.0%

3.0

1,015

20–23/7/2009

1,003

1,003

4.5%

31.8%

38.7%

15.4%

9.0%

0.5%

100.0%

3.1

997

16–21/6/2009

1,012

1,012

4.1%

26.8%

42.5%

17.8%

8.6%

0.3%

100.0%

3.0

1,009

19–22/5/2009

1,011

1,011

3.2%

30.6%

40.9%

16.0%

9.0%

0.2%

100.0%

3.0

1,009

21–23/4/2009

1,014

1,014

1.8%

22.7%

41.8%

21.4%

12.2%

0.0%

100.0%

2.8

1,014

9–11/3/2009

1,019

1,019

3.0%

21.2%

39.1%

23.6%

12.5%

0.6%

100.0%

2.8

1,013

16–18/2/2009

1,001

1,001

2.7%

24.6%

41.2%

21.7%

8.7%

1.1%

100.0%

2.9

988

19–21/1/2009

1,011

1,011

3.6%

23.5%

36.9%

22.6%

12.9%

0.4%

100.0%

2.8

1,005

16–18/12/2008

1,005

1,005

2.8%

19.8%

38.8%

25.3%

12.6%

0.8%

100.0%

2.7

995

18–24/11/2008

1,006

1,006

3.5%

27.6%

38.7%

19.2%

10.0%

1.0%

100.0%

3.0

995

22–24/10/2008

1,018

1,018

1.8%

20.7%

49.0%

17.7%

10.1%

0.6%

100.0%

2.9

1,010

17–19/9/2008

1,003

1,003

2.3%

22.7%

43.7%

21.6%

8.6%

1.2%

100.0%

2.9

991

18–20/8/2008

1,000

1,000

2.6%

27.6%

39.1%

21.4%

8.2%

1.1%

100.0%

2.9

987

14–16/7/2008

1,181

1,181

3.2%

27.2%

42.3%

17.3%

8.1%

2.0%

100.0%

3.0

1,157

18–20/6/2008

1,003

1,003

3.6%

32.8%

40.5%

15.2%

7.3%

0.7%

100.0%

3.1

996

20–22/5/2008

1,023

1,023

7.5%

42.6%

38.7%

8.2%

2.5%

0.5%

100.0%

3.4

1,018

16–18/4/2008

1,009

1,009

4.4%

44.7%

37.6%

9.0%

3.5%

0.8%

100.0%

3.4

1,001

18–20/3/2008

1,026

1,026

5.9%

46.7%

36.3%

6.9%

3.2%

1.0%

100.0%

3.5

1,015

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18–20/2/2008

1,037

1,037

5.1%

44.2%

35.2%

10.4%

3.4%

1.6%

100.0%

3.4

1,021

16–18/1/2008

1,022

1,022

5.9%

42.1%

35.4%

11.7%

3.7%

1.3%

100.0%

3.4

1,007

19–24/12/2007

1,019

1,019

5.6%

39.4%

37.1%

11.8%

4.9%

1.3%

100.0%

3.3

1,006

21–26/11/2007

1,012

1,012

5.1%

46.8%

34.4%

10.1%

3.0%

0.6%

100.0%

3.4

1,002

22–25/10/2007

1,016

1,016

5.1%

51.1%

32.0%

8.4%

2.8%

0.6%

100.0%

3.5

1,007

17–21/9/2007

1,008

1,008

4.9%

48.0%

35.3%

7.5%

3.3%

1.1%

100.0%

3.4

997

20–24/8/2007

1,010

1,010

5.2%

48.0%

34.0%

8.9%

2.5%

1.5%

100.0%

3.5

994

23–26/7/2007

1,007

1,007

5.5%

45.1%

37.9%

7.3%

2.6%

1.7%

100.0%

3.4

990

15–21/6/2007

1,006

1,006

7.1%

44.2%

36.1%

8.2%

3.0%

1.4%

100.0%

3.4

991

16–25/5/2007

1,008

1,008

6.5%

43.8%

38.2%

8.0%

2.8%

0.5%

100.0%

3.4

1,001

17–20/4/2007

1,011

1,011

5.1%

45.0%

37.5%

8.8%

2.0%

1.5%

100.0%

3.4

994

19–21/3/2007

1,007

1,007

5.3%

44.6%

39.8%

7.4%

2.0%

0.8%

100.0%

3.4

998

28/2/2007

1,018

597

5.5%

45.1%

35.6%

9.6%

2.7%

1.6%

100.0%

3.4

586

22–26/2/2007

1,014

1,014

5.2%

37.0%

42.1%

11.1%

3.1%

1.6%

100.0%

3.3

995

22–26/1/2007

1,020

1,020

3.3%

34.5%

44.4%

12.3%

4.6%

0.9%

100.0%

3.2

1,010

18–20/12/2006

1,016

1,016

2.9%

31.4%

45.4%

14.7%

4.2%

1.4%

100.0%

3.1

1,002

20–24/11/2006

1,012

1,012

5.3%

34.3%

41.6%

14.9%

3.4%

0.6%

100.0%

3.2

1,006

23–27/10/2006

1,010

1,010

3.6%

37.5%

40.5%

11.0%

6.0%

1.5%

100.0%

3.2

994

14–20/9/2006

1,013

1,013

3.4%

38.8%

45.9%

7.8%

3.2%

0.9%

100.0%

3.3

1,004

21–23/8/2006

1,019

1,019

4.4%

43.7%

37.6%

11.0%

2.1%

1.3%

100.0%

3.4

1,005

14–21/7/2006

1,006

1,006

5.7%

41.3%

39.5%

8.7%

3.6%

1.2%

100.0%

3.4

994

19–21/6/2006

1,012

1,012

5.9%

46.8%

37.4%

6.8%

2.6%

0.5%

100.0%

3.5

1,007

18–25/5/2006

1,022

1,022

5.2%

43.2%

40.0%

8.1%

2.5%

1.0%

100.0%

3.4

1,011

18–21/4/2006

1,015

1,015

5.5%

49.2%

34.7%

7.3%

2.0%

1.3%

100.0%

3.5

1,001

13–17/3/2006

1,010

1,010

6.0%

44.3%

37.5%

8.0%

2.7%

1.6%

100.0%

3.4

993

22/2/2006

1,026

670

5.9%

48.9%

34.8%

8.1%

1.8%

0.6%

100.0%

3.5

666

17–21/2/2006

1,017

602

5.7%

44.5%

33.6%

12.6%

2.7%

0.9%

100.0%

3.4

597

16–20/1/2006

1,011

1,011

6.7%

42.9%

37.8%

8.2%

2.4%

1.9%

100.0%

3.4

991

15–19/12/2005

1,016

1,016

6.8%

42.0%

37.4%

8.1%

4.0%

1.7%

100.0%

3.4

999

18–23/11/2005

1,019

1,019

4.3%

46.5%

37.7%

7.3%

2.5%

1.8%

100.0%

3.4

999

25–29/10/2005

1,017

1,017

6.2%

50.3%

33.2%

6.5%

2.0%

1.8%

100.0%

3.5

998

26–29/9/2005

1,027

1,027

4.6%

47.2%

36.0%

7.6%

2.6%

2.0%

100.0%

3.4

1,005

22–25/8/2005

1,004

1,004

4.2%

39.1%

33.2%

15.6%

4.7%

3.1%

100.0%

3.2

971

* The mean value is calculated by quantifying all individual responses into a score of 1, 2, 3, 4 or 5 marks according to their degree of positive level, where 1 is the lowest and 5 the highest, and then calculating the sample mean. Source: Public Opinion Programme, The University of Hong Kong: “Are you satisfied with the overall performance of the HKSAR government? (per poll)” .

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New Trends of Political Participation in Hong Kong

been a sense of resignation, disappointment and helplessness, not anger. The economy of Hong Kong is a mature one, its middle class probably enjoys one of the highest living standards in Asia, and families at the grassroots level benefit from a fairly generous social security net. Since the negotiations on the territory’s future in the early 1980s, people of Hong Kong have well understood that they need to maintain an attractive investment environment, and social stability is essential to such an environment. On the other hand, in view of the Chinese leadership’s rejection of genuine democratization, the community’s sense of political impotence in the colonial era continues, and may perhaps have been exacerbated. The vast majority of people of Hong Kong have no intention of confronting the Chinese authorities, and they are proud of China’s rising international status; further, they are grateful for Beijing’s support of the territory’s economy in terms of policy concessions. In contrast to the years before 1997, trust for the central government from people of Hong Kong was sometimes even higher than their evaluation of the HKSAR government’s performance. The trend, however, has been reversed since 2008, the Chinese leadership’s interferences in Hong Kong and the deteriorating human rights conditions in China have resulted in a decline of this trust, and the fall was more significant in 2012 and 2013. Radical political participation in general has a limited market in Hong Kong. There is considerable worry and resentment in the community against the mode of political articulation and expression on the part of the League of Social Democrats, People Power, and some young radical activists of the “post-80s” generation. At this stage, the territory’s moderate political culture is still an effective deterrence against radical political action, but there is a worry that as young people become more frustrated with their career prospects, the number of young radical activists will grow rapidly. In the existing electoral system, the target of the radical political parties is one seat in each of the five geographical constituencies based on the support of 10% of the electorate. This is quite an achievable target, as was

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33

demonstrated in the 2012 Legislative Council elections, but the ceiling may soon be reached. Radical young activists usually do not amount to more than a few thousand; moreover, they are not interested in getting organized. Obviously their radical political actions are moderate by European standards. In the past one or two years, the local media have observed “a resentment against the rich,” which may have an impact on political participation in the territory. There is widespread expression of envy of the rich; newspapers and magazines are full of reports of the lifestyles of the rich. This “resentment against the rich” probably reflects dissatisfaction with the widening gap between rich and poor and the government’s policies favoring the major business groups and real estate tycoons. The latter and the government feel the pressure, hence the gesture of the establishment of a Community Care Fund.30 The challenge is not so much the resentment, but the perception of lack of fair competition. The early promulgation of a fair competition law would contribute to a reduction of the resentment. A more significant issue is the government’s commitment in social services which represents income re-distribution. This is probably the most important political question in all politically stable countries. Medical insurance is probably the domestic policy issue that has attracted the most attention in the U.S. in recent years, while in the wake of the global financial tsunami the impact of budget cuts on social security is at the top of the policy agenda in most European countries. The situation in Hong Kong is rather unusual because the government enjoys frequent budget surpluses and substantial fiscal reserves. The community is therefore reluctant to absorb extra taxation burden, and only asks the government to assume the financial responsibility for

30 See the comments made by the local tycoons about the resentment against the rich at http:// uk.reuters.com/article/2014/02/28/hongkong-li-idUKL3N0LX2GO20140228 and www. chinadailyasia.com/opinion/2013-11/06/content_15096734.html accessed on April 2, 2014

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improvements in social security. To avoid controversies, the Donald Tsang administration dodged the issue of expanding the tax base through the introduction of a consumption tax, and refused to propose a mandatory contributory medical insurance scheme. The C. Y. Leung administration does not have the political support to engage in such testing policy reforms. The political reform issue will keep its hands full. People of Hong Kong therefore do not feel that there are many serious policy issues to engage in community-wide deliberations, and this has a negative impact on political participation. The political reform issue in 2013 and 2014 will be a severe test; if the Chinese leadership fails to satisfy demands for democratization of people of Hong Kong, the HKSAR government will suffer a severe “legitimacy deficit” in future, and it will not have the necessary political support to promote the reforms the territory needs. All parties will suffer from the policy paralysis and political polarization. Under these circumstances, people of Hong Kong focus on their works and families. Work pressure is usually high, and leisure time is limited. Therefore, theoretically, there is ample scope for religious activities, neighborhood social interactions, voluntary service etc., to develop, as in the case of Taiwan. After all, human beings are social animals, and political and social participation brings satisfaction in life.

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2 Absorption into a Leninist Polity

A Study of the Interpretations by the National People’s Congress of the Basic Law in Post-Handover Hong Kong Yiu-chung WONG

1.

Introduction

The late Chinese Communist Party (CCP) leader Deng Xiaoping made a pledge to Hong Kong, that from the handover of sovereignty, there would be “fifty years unchanged.” This was embodied in the formula of “one country, two systems.” Notwithstanding, Hong Kong has experienced remarkable changes in all realms since the handover in 1997.1 Various perspectives or conceptual frameworks have been suggested by academics to grapple with the dynamics of these changes.2 The main impetus certainly comes from the central government of the People’s Republic of China (PRC) in Beijing, which assumed the sovereignty of Hong Kong after the British

1 A succinct summary of social, political and economic changes in the first decade of the HKSAR is offered in Ming K. Chan, “Transforming China’s Hong Kong: Toward 2047 MergerConvergence?” in China’s Hong Kong Transformed — Retrospect and Prospects Beyond the First Decade, ed. Ming K. Chan, 140. Hong Kong: City University of Hong Kong Press, 2008. 2 Theoretical models include: the clash of civilizations, patron-client, direct control, bureaucratic politics, planning and co-ordination, and so on. See Sonny Shiu-hing Lo, The Dynamics of Beijing–Hong Kong Relations — A Model for Taiwan? Hong Kong: Hong Kong University Press, 2008, 29–37.

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withdrawal. More than 15 years after the reversion to the PRC, mainland China and the Hong Kong Special Administrative Region (HKSAR) remain two distinctive societies and polities.3 Despite the “one country,” some have even argued that the tensions between “two systems” have been growing.4 However, a process of political integration has been at work since the handover. Political integration could be defined as the “progressive development among members of a political system of a deep and unambiguous sense of identity with the state.” 5 According to Myron Weiner, it has at least two dimensions. One is territorial integration, which means the return of Hong Kong, with its population, to the PRC in 1997. The other is value integration which, on the one hand, produces political identity in its members; and on the other hand, legitimizes the interests of the state.6 In the context of Hong Kong, political integration was the process in which the loyalty to the former colonial master was transferred to the incoming sovereign country, i.e., from Britain to the PRC. A new socio-political order would be shaped to serve the interests of the new power. It is paramount that the prevalent order would not be disrupted and political stability would be maintained in the transition period as well as thereafter. The first sense of the political integration has been accomplished and the second remains to be completed. No doubt, the PRC has an uphill task integrating Hong Kong into the main polity of the PRC because of the vast gap between two different systems. The four cases of interpretation of the Basic Law in post-handover

3 I would argue that the patron-client perspective is a reasonable depiction of Hong Kong SARmainland relations; all other perspectives are views on only one aspect of Hong Kong–Beijing relations. The patron-client perspective, comprehensive as it may be, is however a static perspective which cannot comprehend the political evolution of Hong Kong since 1997. That is why “a multiple and complementary” perspective is called for. See ibid., 34–35. 4 Ray Yep, “Links with Mainland,” in Contemporary Hong Kong Politics, ed. Lam Wai man, Percy Lui, Hong Kong: University of Hong Kong Press, 2007, 245–46. 5 Claude Ake, “Political Integration and Political Stability: A Hypothesis,” World Politics 19(3) April (1967): 487. 6 Myron Weiner, “Political Integration and Political Development,” Annals of the American Academy of Political and Social Science 358 March (1965): 52–64.

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Hong Kong by the National People’s Congress (NPC) of the PRC show that the dynamics of political integration is in full force, with or without the support of the Hong Kong public. This chapter examines in detail the context in which the interpretations originated, the reactions of the media and public, their consequences for Hong Kong society, and how they facilitate the formation of a new political order that serves the interests of the PRC. The political nature of the PRC has been claimed as a type of “market Leninism” by academics.7 Therefore, the political integration in Hong Kong is a process that absorbs Hong Kong into a Leninist state.8

2. The First Interpretation — The Right of Abode Under British rule, mainland Chinese who overstayed in Hong Kong or came to Hong Kong illegally would be forcibly repatriated to the mainland. As the handover approached, a great influx of mainland-born children of Hong Kong residents entered the territory, either by two-way permits or illegally before and after the handover. On the part of the overstaying mainland Chinese children, it was argued that they should have the right of abode in Hong Kong according to the Basic Law, which became effective on July 1, 1997. On April 3, 1998, the High Court of Hong Kong decided that in the initial stage the right of abode was granted to children of Chinese nationality born to Hong Kong residents, including children of illegitimate birth. They could enjoy unconditional right of abode in the territory immediately. However, those who came after July 1, 1997 had to be

7 See Zhu Xueqin, “China in Thirty Years: Two Stages of Reform,” in Chinese Mass Media, ed. Chan Yuen-ying and Qin Kon. 11–41. Hong Kong: Cosmos Books, 2008. See also Michel Oksenberg, China’s Political System: Challenges of the Twenty-First Century, China Journal, 45 (1) (2001):21–36; and Nicolas Kristof and Sheryl WuDunn. China Wakes Up: The Struggle for the Soul of a Rising Power. London: Nicholas Brealey, 1994, 431. 8 A more detailed discussion on the concept of “Leninist Integration” can be found in my article, “‘Super Paradox’ or ‘Leninist Integration’: The Politics of Legislating Article 23 of Hong Kong Basic Law,” Asian Perspective 30(2) (2006): 66–95.

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repatriated back to the mainland and they need to apply for the Certificate of Entitlement issued by the Chinese authorities before returning. These mainlanders appealed to the Court of Final Appeal (CFA), which is the highest judicial authority in the HKSAR. On January 29, 1999, Andrew Li, then the Chief Justice of the CFA, issued the verdict and interpreted the relevant provisions in the Basic Law, declaring that the following categories of people were entitled to the right of abode in Hong Kong: (1) mainland-born children of Hong Kong residents, and the parents need not to be Hong Kong permanent residents when the child was born, including (2) children born out of wedlock (according to the law of equity); (3) Hong Kong born children, with a mainland Chinese mother whose husband was a Hong Kong resident before July 10, 1997; (4) For the period of July 1, 1997 to January 29, 1999, children of Chinese nationality born to Hong Kong residents who had claimed their right of abode from the Immigration Department of Hong Kong. The CFA also ruled that the one-way permit and the Certificate of Entitlement, both issued by the mainland authorities should be separated, so that potential immigrants do not need the Certificate of Entitlement to Hong Kong.9 On this interpretation, the number of potential immigrants to Hong Kong would amount to 1.67 million in the next decade if the CFA’s verdict was to be implemented, according to the SAR government. Obviously, the potential influx of immigrants would place enormous pressure on social welfare, housing planning, medical services, and education provision. The total expenditure was estimated to be HK$710 billion and annual expenditure HK$33 billion for the next ten years. The government warned that Hong Kong’s fiscal system would not be able to cope with this. Regina Ip even hinted that such numbers of immigrants might even trigger the possibility of “riots.” 10 In hindsight, the figures were grossly exaggerated.

9 http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=34052&currpage=T (accessed: December 30, 2010). 10 May 19, 1999, remarks in the LegCo, Cable TV live.

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On May 18, 1999, Tung Chee-Hwa, then chief executive of the HKSAR government, wrote a letter to the State Council in Beijing, requesting an interpretation by the NPC of the provisions on the right of abode in the Basic Law.11 On June 26, 1999, the NPC Standing Committee (NPCSC) reinterpreted the Basic Law’s relevant provisions. After the reinterpretation, the government estimated that the potential 1.6 million immigrants figure would be reduced to 170,000. The NPCSC reinterpretation appeared to have solved the problem of a huge population influx created by the verdict of the CFA. Article 22 (4) of the Basic Law states: “For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People’s Government after consulting the government of the Region.” The NPCSC interpreted this provision as follows: “All persons in the mainland including those born outside Hong Kong of Hong Kong permanent residents, must have a Certificate of Entitlement from the relevant authorities for entry into HKSAR. Otherwise, their coming to Hong Kong would be unlawful.” 12 Article 24(2) and (3) provide: “(2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region. (3) Persons of Chinese nationality of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2).” The NPCSC interpreted these to mean that it covered only those children one

11 Ming Pao (Hong Kong daily newspaper), June 11, 1999. 12 Ming Pao, June 27, 1999.

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New Trends of Political Participation in Hong Kong

or both of whose parents were permanent residents of Hong Kong at the time of their birth. Moreover, it stated that the legislative intent, a concept alien to the common law tradition in Hong Kong, of this sub-article as well as of the whole of Article 24(2) was reflected in the Resolution of the Preparatory Committee adopted by the NPC on August 10, 1996. According to the CFA’s verdict, children who were born in the mainland before or after 1997 and one of whose parents had obtained the right of residency were entitled to have the right of abode in Hong Kong. Under the NPCSC’s reinterpretation, only those with one or both parents being permanent residents (i.e., those with over seven years of residency) of Hong Kong at the time of their birth have the right of abode. Moreover, all potential immigrants must obtain the Certificate of Entitlement before coming to Hong Kong. The NPCSC was seriously critical of the CFA’s “mistake” in failing to distinguish correctly the internal affairs of Hong Kong from affairs between Hong Kong and the mainland. The right of abode issue involves mainland authority; therefore, the CFA must seek prior approval from the NPCSC before adjudicating. The interpretation generated a heated controversy due to the lack of clear criteria that separate the internal affairs of HKSAR and affairs between Hong Kong and the mainland. The Basic Law gives only a general guideline. Article 158 (3) stipulates that “The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and Region, and if such interpretation will affect the judgment on the cases, the courts of the Region shall, before making their final judgments, which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the NPC through the Court of Final Appeal of the Region.” The CFA was criticized for violating the Basic Law, and its verdict was

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overturned. The NPCSC pronounced its reinterpretation of the Basic Law on June 26, 1999.13 Aside from the definition of “internal affairs,” other issues were debated as well. Even the legal professionals were divided — the Bar Association was strongly against and the Law Society for. Ronny Tong, then chairman of the Bar Association, rejected the NPCSC’s decision and argued that it was “unconstitutional.”14 The Lawyers Committee for Human Rights strongly criticized the interpretation and argued that it appeared to be a “clear violation of the principles of judicial independence and the power of final adjudication provided by Articles 2 and 82 of the Basic Law.”15 Elsie Leung, then Secretary of Justice, defended the interpretation as constitutional because the NPCSC has the right to reinterpret the verdict of the territory’s highest court. Moreover, the move was for the benefit of Hong Kong society as a whole as the HKSAR simply could not afford to spend so much on the potential new immigrants in ten years if the ruling of the CFA was upheld. She charged that the critics did not understand how the Basic Law operated after the handover. The NPCSC’s ruling shows that the Basic Law could be applied to solve emergent practical problems of the territories.16 There was also support from overseas academic institutions. Professor Paul Gewirtz, director of the Program in Chinese Law at Yale University, sided with the NPCSC, stating that when any court decreed any decision, the far-reaching societal consequences of the verdict was one of the considerations. The right of abode involved central-local relations, hence the NPC could interpret the details of the immigration laws. In almost all the countries in the world, the courts would not deal with the issue of the right of abode; instead, the administrative branch would take up the issue.17

13 Ming Pao, June 30, 1999. 14 Ibid. 15 South China Morning Post (Hong Kong daily newspaper), June 4, 1999. 16 Ta Kung Pao (Hong Kong-based daily newspaper), February 28, 2000. 17 Hong Kong Economic Daily, April 29, 2000.

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In Hong Kong, residents in general supported the NPCSC interpretation. A public opinion poll was conducted before the interpretation, when the consequences of the huge influx of immigrants were not announced. Only 32% of the interviewees supported the NPC. However, after the government’s estimation of the potential influx of new immigrants was publicized, the support rate for the interpretation shot up to 60.1%. The scare tactics by the SAR government seemed to have worked and the figures seemed to support Elsie Leung’s argument.18 The political impact on the implementation of “one country, two systems” is tremendous. Most importantly, the NPCSP’s interpretation of the right of abode set a precedent for the PRC’s intervention in seemingly purely internal affairs of Hong Kong. Albert Chen Hung-yee, then dean of the Law Faculty of The University of Hong Kong, expressed his worry that the interpretation failed to spell out the mechanism under which the interpretation would be sought, which would surely undermine the foundation of the rule of law in Hong Kong. Therefore, he urged the setting up of a “constitutional convention” on the NPC’s exercise of its interpretation power.19 Moreover, this also set a precedent for the executive’s intervention in the independent judicial process in Hong Kong. Article 158 of the Basic Law stipulates that it should be the CFA that seeks an interpretation of the relevant provisions from the NPCSC, not the executive branch. The executive branch nevertheless has challenged a verdict of the CFA which was not in its favor by requesting the NPCSC for an interpretation. In fact, within the one-party-dominated power structure, the NPCSC’s interpretation was a political move which brought the CFA of Hong Kong

18 Wen Hui Pao (Hong Kong daily newspaper), May 1, 1999. 19 South China Morning Post, May 19, 1999. See also Yash Ghai, “The NPC Interpretation and Its Consequences,” in Hong Kong’s Constitutional Debate — Conflict over Interpretation, ed. Johannes M. M. Chan, H. L. Fu and Yash Ghai, 199–218. Hong Kong: Hong Kong University Press, 2000.

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to heel.20 The move opened the floodgates for future interpretations,21 which indeed, flooded in.

3. The Second Interpretation —  Electoral Methods of the CE and LegCo The brewing of the second interpretation of the Basic Law can be traced back to the mass demonstration on July 1, 2003, the sixth anniversary of Hong Kong’s transfer of sovereignty. More than half a million people of Hong Kong marched on the streets and expressed their frustration and anger of ineffective governance by Tung Chee-hwa and his cabinet over the six years. Besides numerous policy blunders, such as the response to the SARS epidemic and deepening economic crisis, the ineffective governance was best shown in its failure to enact the National Security Bill (Article 23 of the Basic Law).22 In the eyes of the Hong Kong public, Tung’s regime lost its legitimacy. The pro-democracy camp had been pressing for “double universal suffrage” for years. Their political platform had won the sympathy and support of Hong Kong citizens, and, riding the wave, it was irresistible for them to seize the occasion to realize their democratic aspirations. In the aftermath of the July 1, 2003 protest movement, the government withdrew the Article 23 legislation and postponed it indefinitely. The

20 Kenneth Ka-lok Chan, “Taking Stock of ‘One Country, Two Systems’,” in “One Country, Two Systems” in Crisis — Hong Kong’s Transformation since the Handover, ed. Yiu-chung Wong, 35–60. New York: Lexington Books, 2004. 21 Albert Chen, a Basic Law Committee member, disagreed with this view, arguing that the “two systems” were in the stage of “mutual accommodation” after the handover. The move should not have compromised HKSAR’s judicial independence. See “The Legal Implementation of ‘One Country, Two Systems’: Reflection on Ten Years of Development,” in Tenth Anniversary of The Basic Law: Prospect and Retrospect. Hong Kong: One Country, Two Systems Research Institute, 2007: 4–5. 22 For the saga of the Article 23 consultative process and its political implications, see Joseph Y. S. Cheng, ed. The July 1 Protest Rally: Interpreting a Historical Event. Hong Kong: City University of Hong Kong Press, 2005.

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pro-democracy camp strongly demanded elections of the chief executive (CE) and members of the Legislative Council (LegCo) by universal suffrage (double universal suffrage) in 2007 and 2008 respectively. The pan-democrats won a landslide victory and the pro-establishment camp suffered a heavy blow in the District Council elections on November 23, 2003. The morale of the democrats was greatly boosted and they intended to sustain public support until the following LegCo election in September 2004. If the pro-democratic camp could control the majority of the LegCo and the District Council, the SAR government would be under tremendous pressure to introduce “double universal suffrage” in 2007 and 2008. Beijing’s intention was unknown then, though it was widely rumored that Beijing was alarmed by the enormous popularity that the pandemocrats enjoyed in the aftermath of the July 1, 2003 rally. In Beijing, the CCP leading group that had been in charge of Hong Kong–Macau policy was reshuffled and Tsang Qingkun, then state vice-president, was installed as the leader. The HKSAR government had to put forward a package of political reform to be implemented in the next CE and LegCo elections in 2007 and 2008 as the Basic Law provides a timetable of political development only for the first ten years after the handover. To collate the views of the Hong Kong public on these issues, the HKSAR government adopted certain measures. First, a high powered Constitutional Development Task Force (CDTF) was established with Donald Tsang, then Chief Secretary of Administration, as the chair, and Elsie Leung, Secretary of Justice, and Stephen Lam, Secretary of Constitutional Affairs, as members. It shows that Tung’s administration was eager to solve the sensitive political issue of “double universal suffrage” as soon as possible but its stand was not clear, as the timetable of implementing political reform was not on the agenda of the Policy Address of January 2004.23 All it hoped was to spur a rational and calm debate between pro-democrats and pro-government conservatives.24 The first

23 Ming Pao, January 8, 2004, A3. 24 South China Morning Post, January 15, 2004, A1.

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report of the CDTF, published in March 2004, claimed that from January 16 to March 24, 2004 civil groups with various political backgrounds, professionals from different sectors, and social organizations were consulted on matters of principle and legislative processes relating to the political development.25 The majority expressed the view that the CE and LegCo elections must be handled in line with the procedures constituted in the Basic Law. However, there was a sharp division of opinions between the democrats who held that local legislation is sufficient to provide a legal basis for the introduction of the direct election of the CE in 2007, and the SAR government officials and pro-government parties who argued that amendment of the Basic Law (Annex 1 and II) is required for direct election of the CE to be introduced. The democrats further claimed that by linking the issue of local election of the CE with the amendment of the Basic Law, the SAR government, in fact, paved the way for the central government to intervene in Hong Kong’s elections and,26 indeed, as later developments showed, the NPC did. Beijing devised a two-pronged strategy to prepare for its intervention through official and non-official channels. The so-called “four guardians of the Basic Law” (Sida hufa) from mainland China, published an article by the Xinhua News Agency on December 4, 2003 in relation to HKSAR’s political development. It was the first step of Beijing’s intervention through quasi-official channels. The article was strongly critical of the view that “the methods of the CE and LegCo elections are the internal affairs of Hong Kong, and only people of Hong Kong have the right to do so.” Professor Xu Congde, a Law professor of Renmin University and one of the guardians, remarked that it would amount to declaring the independence of Hong Kong, if the constitutional reform were to be determined by the Hong Kong public.27 Two other guardians, Professor Xiao Weiyun, Law

25 Constitutional Affairs Bureau. The First Report of the Constitutional Development Task Force. www.cmab.gov.hk/cd/eng/report/pdf/firstreport-e.pdf (accessed: December 30, 2010). 26 Apple Daily (Hong Kong daily newspaper), January 15, 2004, A6. 27 Ming Pao, December 5, 2003, A2.

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professor of Peking University, and Professor Xia Yong, senior fellow of the Chinese Academy of Social Sciences, then came to Hong Kong to meet the legislators. Xiao rebuked them, saying that the local legislation of the electoral methods of CE and LegCo in 2007 and 2008 was legally unsound. To implement the legislative process, it is necessary to refer to Article 159 in which the power of amendment of the Basic Law shall be vested in the NPC.28 Xia added that, on the issue of constitutional reform, both Hong Kong public opinion and the will of central government were crucial. In response to the guardians’ comments, the democrats disagreed strongly and were critical that the two guardians simply did not understand the nature of Hong Kong’s common law legal system. They charged the Beijing professors of colluding with the SAR government to prepare for the intervention by “one country” into the political process of Hong Kong which was a purely internal matter.29 The CDTF members, however, reported to Beijing directly and took instructions on how to handle general opinions from people of Hong Kong on this issue. Tung quoted his official conversation with Hu Jintao, president of the PRC, during his duty visit to Beijing on December 3, 2003, saying that the decision power (zuizhong jueding quan), which means the interpretation of the Basic Law, was ultimately in the hands of the central government. After Tung Chee-hwa delivered his Policy Speech on January 7, 2004, the Office of Macau and Hong Kong Affairs released press comments on the Policy Speech, expressing publicly for the first time the issue of political development in Hong Kong. It stated that: “the Central Government has earlier talked with Mr. Tung Cheehwa that the SAR government should fully discuss with the departments (of the Central Government) concerned before any arrangement is made. We hope that people of all sectors in Hong

28 Xiao Weiyun, in Ming Pao, January 16, 2004, A6; See also idem, The Basic Law of the Hong Kong Special Administrative Region. Hong Kong: Committee on the Promotion of Civic Education, 2005: 137. 29 Apple Daily, January 16, 2004, A2.

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Kong should rationally discuss this issue and reflect their ideas to the SAR government.” 30 In preparing for the propaganda war against the pro-democracy camp and to win over Hong Kong’s public, on February 19, 2004 Beijing rebroadcast Deng Xiaoping’s speech on “one country, two systems” which was first delivered in June 1984.31 What Beijing wanted to stress was that the notion of “one country” was the pre-condition of implementing “two systems” in Hong Kong. Only patriots, who love the Chinese nation and adhere to the Chinese nation and never disrupt the prosperity and stability of Hong Kong, are allowed to govern Hong Kong.32 Five days later, on February 24, 2004, Tang Hua, the vice editor of Liaowang magazine, provided further explanation on the criteria of being a patriot: (1) he/she should be loyal to the HKSAR which is under the sovereignty of China; (2) he/she should love both China and Hong Kong; (3) he/she should adhere to the principle of “one country two systems;” and (4) he/she should respect the stipulation and spirit of the Basic Law.33 Although Beijing unleashed a fierce ideological propaganda war against the democrats, the democrats were unyielding and they upheld the notion of “people of Hong Kong ruling Hong Kong.” (Gangren Zhigang) With the intervention of the “four guardians” and the mainland statecontrolled media, the consultation process on constitutional development practically stalled. Nonetheless, the pro-democracy camp still fought as hard as they could to demand “double universal suffrage” in 2007 and 2008. In the aftermath of the July 1 demonstration and the landslide victories of the District Council elections in November 2003, the proestablishment forces were eclipsed. To avoid a complete paralysis of the Tung Chee-hwa administration, and in an attempt to rein in the growing strength of the democrats, Beijing eventually decided to step in to interpret

30 Ming Pao, January 8, 2004, A2. 31 Deng Xiaoping, Selected Works, Volume 3. Beijing: Renmin Chubanshe, 1993, 58–61. 32 Wen Hui Pao, April 9, 2004, A7. 33 Ta Kung Pao, April 7, 2004, A5.

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the Basic Law relating to the electoral methods of the CE and LegCo on March 26, 2004.34 Beijing’s interventionist posture frustrated both pro-democrats and the Hong Kong general public, who evidently considered that the autonomy of Hong Kong had been compromised and prospects for democratization frustrated,35 but the prestige of the Hong Kong government was also diminished. Qiao Xiaoyang, the deputy secretary of the NPCSC, defended the interpretation of the NPC that the act was based on the PRC’s Law of Legislation (Lifa Fa) which stated that the objective of the interpretation was to explicate the implications of the legal articles concerned (mingque falu tiaowen de juti hanyi).36 However, it turned out that the NPC not only interpreted the relevant provisions but also made new laws directly for Hong Kong, which is obviously “unconstitutional.” The NPCSC’s interpretation of the law regarding electoral methods for the CE and LegCo was passed on April 26, 2004 with 156 yes votes, and one abstention.37 According to the NPCSC, the “constitutional” procedures of the political development in HKSAR would be as follows:38

34 Apple Daily, March 27, 2004, A1. 35 Larry Diamond argued that in terms of the principal structural conditions, such as, GDP per capita, rule of law, free press, good governance, and political culture, etc. Hong Kong is certainly “ready” for democracy. See his article, “A Comparative Perspective on Hong Kong Democratization: Prospects toward 2017/2020,” in China’s Hong Kong Transformed, ed. Ming K. Chan, 315–17. From the analysis of “societal force” perspective, see Alvin So, Hong Kong’s Embattled Democracy — A Societal Analysis. Baltimore: The Johns Hopkins University Press, 1999. 36 Ming Pao, April 7, 2004, A2. 37 Tai Kung Pao, April 27, 2004, A1. 38 The original articles in the Basic Law are as follows: “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 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 approval.” For the Legco formation, the articles are: “If there is a need to amend the provisions of this Annex (II), 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.”

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1. The CE submits a report to the NPCSC. 2. The NPCSC approves the report. 3. The HKSAR government submits the relevant bills to the LegCo. 4. The consent of two-thirds of LegCo members is required. 5. The consent of the CE. 6. The ordinance is submitted to the NPCSC for approval. Besides the procedural issues, however, new provisions were added: (1) Direct elections of the CE and LegCo in 2007 and 2008 were rejected. (2) The previous methods of elections of the CE and LegCo could be amended and new methods could be proposed. (3) The indirect elections (functional constituencies) and direct elections (geographical constituencies) will be increased in proportion. (4) If there is no consensus on the electoral methods of the CE and LegCo in 2007 and 2008, the current methods will prevail. The pro-democracy camp was furious and frustrated because, on the one hand, Beijing would dominate the internal process of political development, and on the other hand, the act involved not only the interpretation of the existing articles but in fact, the making of new provisions. Hong Kong’s autonomy was deeply breached and the PRC violated its promise of nonintervention with regard to Hong Kong’s internal evolution before the handover. Action was organized to express their fury toward Beijing’s intervention, including boycotting the government’s consultation of constitutional reform, and another massive demonstration on July 1, 2004. 39 Chu Yiu-ming, convener of Civil Network, a pro-democracy umbrella organization, commented that the political development in Hong Kong was coffined, and room for developing democracy was suffocated.40

39 Apple Daily, May 12, 2004, A4. 40 Ming Pao, April 29, 2004, A6.

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Anson Chan, former Chief Secretary of Administration, also denounced that the intervention would negatively influence confidence of people of Hong Kong in “one country two systems,” however, she called on people to express their opinion in a rational and peaceful manner.41 Supporting the Beijing move, the pro-Beijing camp criticized the pan-democrats for having distorted the NPC’s benign intention, damaged the local economy, tarnished the international image of Hong Kong, and most seriously, misled public opinion with their protest.42 Wu Bangguo, Chairman of the NPC, emphasized that the interpretation was constitutional and it aimed to safeguard Hong Kong’s long-term stability and prosperity.43 The NPC’s interpretation stipulated the preconditions for Hong Kong’s constitutional development: (1) the CE must report to the NPCSC about amendments to the electoral methods of the CE and LegCo; (2) the NPCSC has to make sure the report is in line with the “principles of gradualism” and “actual situation,” as laid down by the Basic Law; (3) subsequently, the HKSAR government would prepare the bills for the local legislation.44 Following Beijing’s lead, Tung Chee-hwa had no choice but to respond that the amendments of the CE and LegCo electoral methods by Beijing reflected the general will of the people of Hong Kong on this issue, which was not true.45 This second interpretation further sharpened the political confrontations between the government and its allies and the pro-democracy camp. It indirectly led to the formation of another pro-democracy political party, the Civic Party, which was founded by the members of Article 45 Concern Group and a number of academics on March 19, 2006.46 Barrister Alan

41 Ibid., A2. 42 Ibid., A6. 43 Wu Bangguo’s speech on the Tenth Standing Committee of the Eighth National People’s Congress. Renmin Ribao, April 7, 2004, 1. 44 Ibid. The Interpretations of the Basic Law, Article 7, Annex 1, and Article 3, Annex 2, p. 2. 45 Ming Pao, April 7, 2004, A3. 46 The Manifesto of the Civic Party. www.civicparty.hk/cp/pages/page-e/manifasto-e.php (accessed: December 30, 2010).

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Leong, one of its founding members, later became the first pro-democracy candidate to obtain a sufficient nomination vote and challenged Donald Tsang in the CE election in 2007. 3.1 Arguments against the Second Interpretation The debates were ferocious and the political climate was charged. Three arguments were put forward by the pro-democracy camp. First, the interpretation violates the principle of “one country, two systems” as it was originally defined by the former senior Chinese officials in the transition period before 1997. Yash Ghai, a Law professor of the University of Hong Kong, quoted Ji Peng Fei, then the chairman of the Drafting Committee of the Basic Law, in his speech introducing the Basic Law at the NPC in 1990 that any central government’s definition of sovereignty of Hong Kong would be merely within the framework of “one country.” 47 Lu Ping, the former director of the Hong Kong and Macau Affairs Office, also claimed that any matters related to the pace of democratization were Hong Kong’s internal affairs; the central government would not intervene.48 Clearly, these two senior officials indicated that Beijing only intervened in the internal affairs of Hong Kong if matters of the sovereignty of the PRC were violated, and all others were in the realm of “two systems.” Their speech signified that a real and effective space of self-governance in Hong Kong was originally promised by the principle of “one country, two systems” before 1997. The interpretation shows that the principle of “one country, two systems,” defined by the former Chinese officials, had been abandoned. Evidently, the demand of realizing “double universal suffrage” for both CE and LegCo elections was generated internally by people of Hong Kong seeking democracy, which should not subvert the sovereignty of the PRC, therefore it should be left to people of Hong Kong. The shifting posture

47 Ghai Yash. “Beijing violates its promise of the self-governance,” Apple Daily, May 3, 2004, E17. 48 Quoted from Li Yi, Apple Daily, April 8, 2004, E15.

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of Beijing shows the shrinking space for local democrats. The reason is obviously due to the Leninist authoritarianism of the CCP’s party-state politics.49 Second, the interpretation violates the principles of the common law. The Sino-British Joint Declaration in 1984 maintained that the judiciary of Hong Kong would follow the British common law system after the handover, which means each provision or article of the Basic Law is independent and its substance and meaning must be stable and predictable. Articles of law could not be reinterpreted or amended at will to serve the interests of the powerful. If not, the canon of “all are equal before the law” would fail to be realized.50 Besides, the common law system entails that the only body that has power to implement the interpretation and amendment of the law is the court, which is the only legitimate body with the power to exercise the interpretation for the HKSAR; the role of the NPC is only to authorize and it has no direct power to reinterpret as far as internal affairs of the HKSAR are concerned. The NPC having the dual power of legislation and interpretation of the law no doubt exacerbated worries of people in Hong Kong that the reinterpretation would offer one more precedent for tarnishing the rule of law in Hong Kong, and more importantly, in the context of striving for democracy, their efforts would be in vain.51 Third, the interpretation ignored the popular will and desire of people of Hong Kong. The pro-democracy legislators argued that the demonstration on July 1 and the District Council election results in November 2003, show the hunger for universal suffrage of people in Hong Kong. The HKSAR government has to reflect the general will of Hong Kong towards Beijing. However, the sudden stall in the consultation from Beijing in January

49 Lo Chi-kin, “One Country Two Systems relies on the self-restraint of the Central Government,” Apple Daily, April 2, 2004, E7. 50 Law Yuk-kai, “The interpretation of the Basic Law seriously eroded Hong Kong’s autonomy,” Apple Daily, March 31, 2004, E17. 51 Martin Lee. “One Country, Two Systems under Beijing’s rethinking,” Apple Daily, April 2, 2004, E7.

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2004 apparently implied that the strong demands for “double universal suffrage” were not relayed to the central government by Tung Chee-hwa. The interpretation resulted in pessimism among people of Hong Kong on the issues of autonomy and the pace of democratization.52 3.2 Arguments for the Second Interpretation In response to the criticisms of the pan-democrats and legal professionals on the interpretation, the pro-Beijing government legislators, leftist trade unionists, and a number of pro-PRC Hong Kong business tycoons counterattacked: First, they argued that the NPCSC’s interpretation aimed to clarify the conditions upon which “double universal suffrage” could proceed. The unilateral demand by the Hong Kong pro-democracy camp to elect the CE by universal suffrage was unconstitutional. Xiao Wei-yun, one of the mainland guardians of the Basic Law, and Shiu Sin-por, former executive director of the Hong Kong One Country Two Systems Research Institute, pointed out jointly that the amendment of the procedures of CE election in 2007 has already been stated in the Annex One of the Basic Law, which states that: “If there is a need to amend the method for selecting the CE for the terms subsequent to the year 2007, such amendments must be made with the endorsement for 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 approval.” Therefore, any move seeking new procedures of selecting the CE unilaterally by Hong Kong alone violates the Basic Law. Furthermore, Xiao and Shiu defended that the annex is, in fact, part of the Basic Law, although it is not included in the main articles. Therefore, the HKSAR LegCo alone has neither the power nor the right to amend it directly or

52 See Anthony Cheung’s interview: Ming Pao, March 31, 2004, A33.

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indirectly.53 Moreover, Sheng Hua-ren, secretary and deputy director of the Regulation Committee of the NPC, publicly claimed that the power of triggering the process of the amendment of the CE election method could come only from Beijing, and its endorsement and final approval rest also with the NPC. In a nutshell, the process of political reform in Hong Kong starts and ends with Beijing. As regards the requirement of a two-thirds majority of the LegCo, it is merely one step in the whole procedure, and therefore it is wrong to suggest that the power of switching on the amendment of the CE election method lies in the members of the Hong Kong LegCo. Sheng’s speech concluded Beijing’s standpoint on the issue of the political development of Hong Kong. The reinterpretation unmistakably sent this message to Hong Kong.54 Second, the interpretation was a public pronouncement of the most up-to-date version of the PRC’s official definition of “one country, two systems.” In response to the arguments that the previous Chinese officials had promised that political development would be a purely internal matter for the HKSAR, the current Chinese senior officials, who were in charge of the affairs of two SARs (Hong Kong and Macau), were providing the most authoritative interpretations on relations between “one country” and “two systems.” Gao Si-ren, then director of the Liaison Office of the Central People’s Government in Hong Kong, based on the notion that the principle of “one country” is supreme and unchallengeable, argued that “one country and two systems” are not on the same level. Ng Hong-man, a veteran NPC deputy, referred to Gao’s speech saying that “two systems” must be subordinated to the framework of “one country.” To their logic, the claims that Beijing has no power to interfere with Hong Kong’s internal affairs is politically impossible and legally incorrect. Furthermore, Chen Zuo-er, then deputy director of the Hong Kong and Macau Affairs Office, distinguished the concepts of delegation of power (shou quan) and separation of power

53 Ming Pao, December 8 2003, C16; Ming Pao, January 16, 2004, A6. 54 Ming Pao, March 30, 2004, A32.

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(fen quan) in the relations between Beijing and the HKSAR. He repeated that Hong Kong’s right to enjoy a high degree of autonomy was due to the delegation of power from the central government — it was wrong to regard Beijing and Hong Kong as politically separate or equal.55 Third, the interpretation was a crucial step to forestall or preempt the demands for “double universal suffrage” of the pan-democrats since they violated two fundamental principles with regard to Hong Kong’s political development, namely “gradualism” (xunxu qianjin) and a realistic assessment of the “actual situation” (genju shiji qingkuang). Tsang Yuksing, currently the president of the LegCo and former Chairman of DAB, criticized the democrats on the grounds that neither “gradualism” nor “actual situation” were taken into consideration before they put forward their proposals.56 The pro-government camp further defended that the mainstream opinion in Hong Kong expressed consent to maintaining Hong Kong’s political status quo,57 after the consultation exercise by the Constitutional Development Task Force, headed by Donald Tsang. To change Hong Kong’s political system radically by introducing “double suffrage” evidently contradicts the principles of “gradualism” and consideration of the “actual situation,” so the move to seek universal suffrage was itself irrational. Three consultation conferences chaired by Qiao Xiao-yang and Li Fei, the deputy secretary of the NPCSC in Law Affairs, seemed to have built the consensus of various conservative groups in Hong Kong on the interpretation of the Basic Law, especially those from business fields. The pro-democrats’ insistence on “double suffrage” was heavily criticized. Donald Tsang expressed his concern that the relentless pursuit of the goal would affect the stability of Hong Kong. Sir David Akers-Jones, former

55 Ibid. 56 Ming Pao, January 8, 2004, B12. 57 Tai Kung Pao, April 7, 2004, A5.

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chief secretary of Hong Kong and now a prominent member of the proBeijing camp, explicitly voiced his worry that a heavy political price would have to be paid if the pan-democrats did not compromise.58 3.3 International Media on the Second Interpretation of the Basic Law The NPCSC’s interpretation drew the attention of the Western media. The British media was, first of all, very critical of the act. The Daily Telegraph regarded the interpretation as Beijing imposing political pressure on Hong Kong. The Financial Times blamed Beijing’s betrayal of “one country two systems” because the interpretation obviously contradicted its promise made before the handover. BBC online news pointed out that Beijing now has absolute control over Hong Kong’s political development by vetoing the time-table of “double universal suffrage.” Reuters provided a neutral commentary that Beijing was extremely sensitive towards the democracyseeking demands of people of Hong Kong, and the interpretation is to ensure its power of decision in shaping Hong Kong’s electoral methods of the CE and LegCo members and democratization timetable. The American media mainly focused on the tactics that Beijing used to suppress the demands of the democrats for universal suffrage in Hong Kong. The Washington Time commented that the move showed Beijing invalidated the pro-democracy legislators’ resolution of demanding universal suffrage by the central authorities. The New York Times editorialized that the interpretation stalled Hong Kong’s constitutional reform, and criticized that Tung Chee-hwa was directly appointed by Beijing, his proposal was the only course of Hong Kong’s constitutional reform that could be accepted by Beijing.59

58 Ming Pao, April 19, 2004, A29. 59 Summary of the reports of the Western media on the reinterpretation of the Basic Law. Ming Pao, April 8, 2004, A3.

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Taiwan, the U.S. and the U.K. respectively gave their prompt responses after the interpretation. Taipei explicitly used the episode as a means to expose the authoritarian nature of the PRC. Taiwan, then governed by the Democratic Progressive Party, strongly condemned Beijing’s move. Lin Jia-loong, the spokesman of the Executive Yuan, expressed that the event showed that, in practice, the principle of “one country two systems” in Hong Kong was a facade. The CCP party-state was intolerant towards even partial democracy in Hong Kong.60 Britain expressed regret and disappointment that the reinterpretation violated the agreement that “Hong Kong can enjoy a high degree of autonomy” after 1997, which was accepted in the Sino-British Joint Declaration. John Major, the former British prime minister, and Bill Rammell, the former secretary of the Foreign and Commonwealth Office, declared in common that Beijing’s rejection of the popular demand for democracy contradicted the principle of “one country two systems.” Stephen Bradley, the then British consulgeneral of Hong Kong, expressed his disappointment, and pointed out that the high autonomy should be reflected in political consensus of people of Hong Kong on the matter of constitutional reform; it is necessary to provide a free climate to achieve a genuine consensus. However, the Beijing decision destroyed the consensus and the principle that people of Hong Kong are to enjoy high autonomy embodied in both the Sino-British Joint Declaration and the Basic Law.61 American officials expressed their concern over the process of interpretation. The White House spokesman said that the U.S. would continue to support Hong Kong’s democratic reform under the framework of the Basic Law. The US Department of State reported that it had closely monitored the development, and emphasized that the reputation of Hong Kong as an international financial center came from its rule of law and high autonomy. Any infringement of that status would be disastrous. The

60 Ibid. 61 Ibid.

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US Consulate General in Hong Kong relayed the message on behalf of Vice President Dick Cheney that he would mention the issue with Chinese leaders in his coming visit to Beijing.62

4. The Third Interpretation — The Remaining Tenure of the CE The process of the third interpretation was started by the resignation of the incumbent CE, Tung Chee-hwa, apparently due to his deteriorating health condition. Tung formally resigned on March 10, 2005. In fact, it was rumored that Tung would be resigning because of inability to govern Hong Kong after the July 1 demonstrations in 2003 and 2004. The rumor became more widely circulated after the resignations of two of his cabinet ministers, Anthony Leung and Regina Ip, in the second half of 2003. Therefore, his resignation came as no surprise to the Hong Kong public. Tung’s request was approved by the State Council two days later.63 Tung’s second term in office would expire in 2007 and thus, two years of his tenure remained. The issue of remaining tenure became critical both for the pro-democracy camp and the pro-government faction as it involved the issue of when the third term of the CE should start and whether the new CE could serve one term or two terms. The democrats who had been

62 Ming Pao, April 28, 2004, A4. 63 Several explanations were proposed for Tung’s resignation; among them, failing health was the most unconvincing one. The pro-democracy camp would argue that he was forced to resign by the popular demand, as shown in so many rallies and demonstrations, in particular after July 1, 2003, when half a million people marched on the streets in Hong Kong to protest his incompetency. However, the factor of internal Chinese politics must be taken into consideration. In 2002, 2003 and 2004, the CCP was completing the first ever peaceful power transition after the founding of PRC. In October 2002, Hu Jintao took over as general secretary from Jiang Jemin. In March 2003, Hu became the president of the PRC. In October 2004, Hu succeeded Jiang to become the chairman of the CCP’s Central Military Committee. Hu inherited the “three hats” of Jiang and completed the succession. See Andrew Nathan and Bruce Gilley, eds. China’s New Rulers. London: Granta Books, 2002. In March 2005, Tung Chee-wah resigned. Is there a connection? I believe so. Tung was a protégé of Jiang and Tung’s resignation would be unthinkable if Jiang were still in power in 2005, considering the “face politics” in China. Hu was not familiar with Tung.

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pushing for the introduction of “double universal suffrage” hoped that the successor would have a new five-year full term. Tung’s downfall signified that his second term had actually ended although it was not a complete term. On the contrary, the pro-Beijing faction insisted otherwise. They argued that the schedule of the third term CE election should remain unchanged in 2007. Moreover, the Basic Law does not have provisions on the situation if the CE resigns in the middle of his/her term. Article 46 of the Basic Law stipulates that “the term of the office of the Chief Executive of the Hong Kong Special Administration Region shall be five years, he or she may serve for not more than two consecutive years.” Does the remaining two years count as a full term or not? The answer has constitutional as well as political significance. For the successor, if the two years were counted as a partial term, he/she could serve up to twelve years. If the two years were a “full term” then the successor could serve only another five years, which would mean seven years in total. Again, the pro-democratic camp was fiercely opposed and thus polarized the political climate of Hong Kong. Being aware of the ineffectiveness of the HKSAR government, and having announced his resignation Tung had already become a “lame-duck” CE, Beijing very much wanted a speedy end to this debate. The third interpretation of the Basic Law on the CE tenure was implemented on April 24, 2005, and passed by the NPCSC on April 28, 2005. The official statement of the NPC declared that, in accordance with Article 46 of the Basic Law, any candidate is elected by the Election Committee with a five-year term in office, in the event that the office of Chief Executive becomes vacant as he (she) fails to serve his full term, the full term of the new CE shall be the remainder of the previous CE and the successor for the second term is five years.64 A series of protest activities were organized by the legal professionals and pro-democracy legislators, including (1) a demonstration on April

64 South China Morning Post, April 28, 2005, EDT3.

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24, 2005 in which over 1,500 citizens, with all the barristers who were members of the Article 45 Concern Group, participated to express their frustration over the interpretation;65 (2) legislators Emily Lau and James To and social critic Law Yuk-kai called for international society to condemn the reinterpretation and Beijing’s interference with Hong Kong’s internal affairs in the annual meeting of UNESCO;66 (3) Legislator Albert Chan submitted an application for a judicial review to the Supreme Court on the tenure of the next CE after the NPCSC passed the motion.67 Donald Tsang, as Chief Secretary, was appointed as the acting CE on June 21, 2005 by the NPC. In the meantime, the election campaign for the new CE was launched. On July 10, 2005, Donald Tsang resigned his post as Chief Secretary and officially joined the race to run for the CE. Two other legislators competed with Tsang; Lee Wing-tat, then chairman of the Democratic Party, and Chim Pui-chung, representing financial services in the functional constituency. However, they were disqualified as both failed to gain 100 nomination votes from the Election Committee, as stipulated by the Basic Law. 4.1 The Debate on the Third Interpretation In contrast with the second interpretation, which was widely condemned by the general Hong Kong public, there was general welcome for the third interpretation. A survey showed the majority were confident that the interpretation was necessary. Beijing’s legal action was no longer questioned as it facilitated the resolution of fierce political debates and consolidated Hong Kong’s stability. First, the swift interpretation reflected Beijing’s determination to safeguard the political tranquility, and to avoid political debates in HKSAR as much as possible. Maria Tam, a senior member of the Basic

65 Apple Daily, April 25, 2005, A4. 66 Ming Pao, April 28, 2005, A2. 67 South China Morning Post, April 28, 2005, EDT3.

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Law Committee under the NPC, cautioned that without the interpretation, the heated political quarrel on the remaining tenure of the CE would definitely affect the schedule of the CE election. The public’s confidence in governance would be destroyed if delaying the election eventually resulted in a political vacuum.68 Tsang Yuk-shing, former DAB chairman, pointed out that a decisive and speedy interpretation was essential to maintain the executive-led political order which was stipulated in the Basic Law, and signified Beijing’s message to the next CE that a stronger role must be played in his forthcoming two years’ governance. Hong Kong almost became ungovernable under Tung.69 Second, a survey conducted by the Research Association of Hong Kong before implementing the interpretation showed that around 49% of respondents from a sample of 1,100 people approved the necessity of this interpretation. Over 56% of respondents agreed that Tung’s successor should serve two years as one full term.70 Compared with the 30% of support rate on the second interpretation in 2004, a stronger public consent on the third interpretation was recorded. It reflected the fact that more citizens of Hong Kong had confidence in Beijing’s intention to maintain Hong Kong’s long-term social and political prosperity and stability by interpreting the mini-constitution. Third, the conservatives argued that the third interpretation ensured the content stipulated in the Basic Law could be “correctly” implemented in Hong Kong. A number of chambers of commerce argued that if the new CE election was based on the ideas of the pro-democracy camp; it signified that each party in Hong Kong could influence the mini-constitution, and that would result in the collapse of the authority of the Basic Law. Hong Kong’s reputation for attracting global investment would be destroyed. Eventually the promise of the central government to maintain Hong Kong’s prosperity and stability for 50 years would be impossible to achieve. Wu

68 Ming Pao, April 25, 2005, A10. 69 Ibid., A11. 70 Ibid., A10.

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Bang-guo, Chairman of the NPC, highlighted the policy “to protect Hong Kong’s rule of law” in his conclusion speech after the interpretation. He emphasized that Beijing’s motivation on the interpretation was to implement the notion of “one country two systems” well in Hong Kong on a sound and firm constitutional base.71 However, the pro-democracy camp condemned the interpretation for going far beyond its original objective to offer a mechanism for clarifying the grey area of the Basic Law. It became actually a form of direct closeddoor legislation for Hong Kong.72 Only the members of the Basic Law Committee were consulted and the local opposition voices were completely ignored. It lacked the give-and-take process in the entire consultation exercise. Jonathan Chen, a Law professor of The University of Hong Kong, criticized how the notion of “rule of law” was used as a political means rather than as an impartial and pure legal concept currently practiced in Hong Kong.73 Like the previous two cases, the event was widely reported by foreign media. The Western media expressed deep concern and some strong criticisms over Beijing’s intervention in Hong Kong’s political process. British media, and a number of European news agencies, commented on the case from a “two systems” perspective, questioned Beijing’s political intention and was concerned about Hong Kong’s future democratization progress. News articles and editorials published in The Times, The Daily Telegraph, International Herald Tribune, The Guardian, The Financial Times, AFX and Agence France Presse disapproved of the NPC’s third interpretation, as ruining Hong Hong’s rule of law, and thus eroding Hong Kong’s high autonomy guaranteed by the concept of “one country two systems.” 74

71 Tai Kung Pao, April 28, 2005, 12. 72 Ming Pao, April 26, 2005, A3. 73 Apple Daily, April 29, 2005, E19. 74 In AFX Asia, April 28, 2005; Times, April 28, 2005, 42; Agence France Presse, April 28, 2005; Daily Telegraph, April 28, 2005, B7; International Herald Tribune, April 28, 2005, 1; The Guardian, April 28, 2005; Financial Times, April 28, 2005.

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American news agencies, such as The Wall Street Journal, The New York Times and Dow Jones International News, however, reported the story in a relatively neutral manner. Their focus was on why and how the CCP determined the two remaining years for the next CE.75 China News in Kuala Lumpur was one of the few news agencies that focused on the analysis of the process of interpretation for its readers in Malaysia and Singapore.76 The Australian made a provocative remark on this interpretation that the full term of the CE had been slashed by Beijing.77

5. The Fourth Interpretation The fourth interpretation of the Basic Law was requested by the CFA, the first instance of such a request since the handover. It involved the foreign affairs of HKSAR. The roots of the case date back to the 1980s, when the Yugoslavian energy company Energoinvest made a deal with the Democratic Republic of Congo. The company arranged to set up electricity infrastructure in Congo, then Zaire, amounting to US$38 million. Congo defaulted and the debt was purchased by FG Hemisphere Associates, an American “vulture fund” that bought distressed debt on the cheap and took the debtors to court, claiming back the full sum and turning a profit. Meanwhile, Congo struck a multi-billion dollar deal with China Railway Group in 2008, that would develop the country’s infrastructure in return for access to its rich natural resources. Part of that deal constituted US$350 million of “entry fees,” US$221 million of which FG claimed belonged to them. With that sum of money held in Hong Kong, FG went to the courts for repayment. In 2008, the Court of First Instance found that the Congo did not have to repay its debt to China Railway because, as a sovereign nation, it was immune from prosecution abroad. Later, the Court of Appeal

75 The Wall Street Journal, April 28, 2005, A2; New York Times, April 28, 2005; Dow Jones International News, April 28, 2005. 76 China News, April 28, 2005, N02. 77 The Australian, April 28, 2005, 16.

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overturned the decision in 2011, saying that under “restrictive immunity” the business deals of nations were not immune. The case was brought to the CFA. On June 8, 2012, the CFA found for Congo, saying “absolute immunity” should be applied in Hong Kong, in which all state actions are free from prosecution. Beyond its jurisdiction, the CFA submitted four questions to the NPCSC for clarification. Article 158 of the Basic Law allows the CFA to refer provisions on defence or foreign affairs to the NPC for interpretation.78 On August 26, 2011, the NPC Standing Committee handed down its declaration that Hong Kong must follow the PRC’s law on state immunity. “Absolute immunity” must be applied in Hong Kong and the interpretation shows that the state immunity policy was considered part of foreign affairs. Hong Kong’s immunity policy would be a break from the pre-1997 practice,79 when Hong Kong was allowed by Britain to use “restricted immunity.” Incidentally, the fourth interpretation aroused no controversy with the public, partly because of the technical nature of the case, but legal scholars did show concern over the negative effects of the impact of the fourth interpretation on judicial autonomy.80

6. Conclusion Having regained the sovereignty of Hong Kong after the British departure, the PRC certainly would like to see the newly acquired territory serve its party-state interest. Thus, a process of political integration inescapably began. Hong Kong is in the process of being absorbed into a Leninist polity. The first interpretation in 1999 set the precedent, stripping away the final adjudication power of the CFA over Hong Kong-mainland relations. In 2004, in the aftermath of the July 1, 2003 demonstrations, when the HKSAR government faced ever mounting pressure for the introduction

78 South China Morning Post, June 9, 2011, A4. 79 South China Morning Post, August 27, 2011, A4. 80 Cheung Tat-ming, “The impact of the Congo case on the rule of law in Hong Kong,” in Ming Pao, June 21, 2011, A32.

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of “double universal suffrage” from the pan-democrats, Beijing chose to intervene directly. In comparison, the 2005 interpretation was on a relatively minor issue. As Beijing knows too well in the pluralistic nature of Hong Kong society, even a relatively minor issue can be debated endlessly. Beijing acted quickly to quell the heated controversies in order to let the election of Donald Tsang as CE move forward. The fourth interpretation was requested by the CFA and it triggered no debate at all. Evidently, the interpretations did not follow a pattern. The first interpretation began with a letter of request by the Hong Kong CE to the State Council of the PRC and the request was transferred to the NPC, in the disguise of rule of law. The second and third interpretations were exercised directly by the NPC without any due procedures and were purely based on political expediencies and circumstances. Local legal experts and academics have repeatedly called on Beijing to establish the “constitutional conventions” in the NPC’s interpretation exercises, but all fell on deaf ears.81 The reason is simple. As an authoritarian regime, the PRC partystate does not want its power to be restrained by any legal provisions. Regrettably, the HKSAR has to comply with the NPCSC’s interpretations of the Basic Law. However, the strong resistance by civil society is not entirely fruitless. In 2007, the NPC finally made concessions to promulgate the road map and timetable for “double universal suffrage” for Hong Kong. By 2017, Hong Kong will have the first CE election by universal suffrage and the members of the LegCo, all directly elected in 2020, at the earliest.82 Clearly, with its repeated interpretations, a new political order which serves the interest of Beijing, has been created.83 “One country” completely overshadows “two systems.”

81 Sonny Shiu-hing Lo, Dynamics of Beijing-Hong Kong Relations, chapter 4. 82 Ta Kung Pao, December 30, 2007, A17. 83 For a summary of views on Hong Kong’s democratization prospects, see Sonny Shiu-hing Lo, Competing Chinese Political Visions: Hong Kong vs. Beijing on Democracy. Santa Barbara, CA: Praeger, 2010, 1–17.

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3 Ten Years of Political Appointments in Hong Kong The Challenges and Prospects of Developing a Political Appointment System under a Semi-Democratic Regime, 2002–12 Brian C. H. FONG

Political appointment system is common in many Western democratic regimes. Nevertheless, when this notion of political appointment was introduced to Hong Kong in 2002, as the Principal Officials Accountability System (POAS), it failed to gain the confidence of the people of Hong Kong. In the ten years since its implementation, popular support for the POAS has remained on the low side and its operation has continued to generate various problems and challenges to the Hong Kong Special Administrative Region (HKSAR) government. This chapter examines the functioning of the political appointment system under the Tung Chee-hwa and Donald Tsang administration (2002–12) by drawing upon the theoretical notion of semi-democracy. The central argument here is that the various problems and controversies surrounding the functioning of the political appointment system in Hong Kong are closely connected to the major features of its semi-democratic regime. The deficit of democratic elections, the legitimacy crisis facing the HKSAR Chief Executive (CE), the marginalization of party politics and the continued dominance of senior civil servants in policy-making under Hong Kong’s semi-democratic regime have caused the political appointment

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system to fall short of its original objectives and even created a number of new problems and controversies. As a consequence, the political appointment system has usually been criticized for failing to enhance the political accountability of the HKSAR government, to select political appointees in an open and fair manner, to form a cohesive governing team, and to safeguard the political neutrality of the civil service. All these problems and controversies have eventually undermined public confidence in the political appointment system, making it a political burden more than a political asset to the HKSAR government. This chapter is divided into three major sections. The first section briefly reviews the notion of political appointment system within political science literature and its implementation in Western democratic contexts. The second section traces the background to the introduction of the political appointment system by the Tung Chee-hwa administration in 2002 and its further development by the Donald Tsang administration in 2008. The third section discusses the major criticisms of the political appointment system since its implementation and examines the relationship between these political controversies and the semi-democratic regime in post-1997 Hong Kong.

1.

The Concept of Political Appointment System —  The Distinctions between Political Executives and Bureaucratic Executives in Western Democracies

Conceptually, a political appointment system can be defined as the selection and appointment of people outside the merit-based bureaucratic structure to take up senior positions in the executive branch of the government (Civic Exchange, 2001). In this connection, the concept of political appointment system is closely related to the distinction between “political executives” and “bureaucratic executives” in modern executive institutions. In the context of Western democracies, the executive is the branch of government responsible for the formulation and implementation of public policies, and its members extend from the head of the government to officers of various

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law enforcement agencies and administrative departments (Heywood 2000, 201). Within the executive institutions, political executives are politicians who are recruited on the basis of political affiliations to direct public policy-making, while bureaucratic executives refer to civil servants who are permanently employed on the basis of merit to implement policies (Heywood, 2007, 358; Ranny, 2001, 296). Such categorization largely reflects the different institutional roles performed by politicians and career civil servants under the traditional doctrine of politics-administration dichotomy — a clear line should be drawn between the policy-making role of politicians (political executives) and the policy-implementing role of civil servants (bureaucratic executives) (Heywood 2007, 19). From this perspective, a political appointment system can be considered as an integral part of the Western democratic regime, because it puts in place a system under which politicians are elected or appointed to provide political leadership for the country while the civil service functions as a permanent institution to support whichever politicians are elected or appointed to be in power (Derbyshire and Derbyshire, 1996, 39). By separating the policy-making role of politicians from the policy-implementing role of civil servants, the political appointment system also put in places a clear demarcation of different forms of accountabilities for different types of government officials; whereby the political executives should take political accountability while the bureaucratic executives should bear administrative accountability (Cheung, 2001). It is worth noting that, while political executives are generally deemed responsible for policy-making and overall coordination of government affairs, the organization of political executives differs significantly under presidential systems and parliamentary systems. Under a presidential system of government, the president as the Chief Executive is directly elected by the people and he or she holds the power to appoint the cabinet ministers as well as other political officials (Heywood, 2000, 202). For example in the U.S., there are several hundred politically appointed offices (e.g., secretary, deputy secretary and assistant secretary level positions in

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various executive departments and other senior positions of independent agencies) and the president has the power to appoint these political officials with the advice and consent of the Senate (Civic Exchange, 2001). Under the parliamentary system of government, the prime minister as the Chief Executive is the leader of majority party in the parliament and he and his cabinet ministers are normally elected politicians drawn from the legislature (Heywood 2000, 202). For example in the U.K., the prime minister selects and appoints ministerial-level positions (e.g., secretary of state, minister of state and parliamentary under-secretary of state) from amongst members of both houses of parliament (Civic Exchange, 2001). The distinction between political executives and bureaucratic executives under presidential and parliamentary systems is illustrated in Table 3.1.

2. Political Appointment System in Hong Kong —  The Development and Evolution of the Principal Officials Accountability System in the Post-1997 Period 2.1 The Legacy of Bureaucratic-Led Governance System in Hong Kong While the political appointment system can be found in most modern democracies, Hong Kong’s system of governance in the colonial era was an important exception to this common arrangement. Hong Kong’s unique system of governance in the colonial period — as well as the first five years of the post-handover era — can be termed as a “government by civil servants” where political power was invariably concentrated and exercised through a hierarchically organized bureaucratic system. Under the colonial power structure, political power was highly concentrated in the executive authority headed by the British governor, who functioned like an absolute monarch (Miners 1998, 69). In accordance with two constitutional documents, namely the Letters Patent and the Royal Instructions, the governor was the head of government, chairman of the Legislative Council and the commander-in-chief of British military forces in Hong Kong (Cheung, 2007). Although the Letters Patent and the Royal Instructions gave the governor almost autocratic

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Table 3.1 The distinction between political executives and bureaucratic executives in Western democracies Presidential system (e.g., United States)

Parliamentary system (e.g., United Kingdom)

Political executives

• President (head of government directly elected by the people) • Cabinet ministers (political officials appointed by the president)

• Prime minister (head of government who is also the leader of majority party in the Parliament) • Cabinet ministers (elected politicians drawn from the Parliament)

Bureaucratic executives

• Career civil servants

• Career civil servants

constitutional powers, in practice the colonial civil service exercised the strongest influence over the whole policy making process. The reason for this was that colonial governors came and went on a regular basis and thus they depended very much on the support and advice of the permanent civil service to maintain effective governance (Cheung, 2007). As a result of the predominance of the bureaucracy in colonial Hong Kong, the colonial system of governance had been theorized by local political scientists either as a “bureaucratic polity” (Lau, 1982) or an “administrative state” (Harris, 1988). Under this bureaucratled governance system, all the top government positions including that of policy secretary (policy-making ministers) were filled by career civil servants through internal promotion within the bureaucratic system, and most of them came from the highly elitist Administrative Officer grade. From this perspective, senior civil servants in effect took up the dual roles of ministers (policy making) and administrators (policy implementation): On the one hand they performed policy-making functions that would be the responsibilities of politicians in most other democratic systems, on the other they performed administrative duties and retained their status as politically neutral civil servants (Cheung, 2005, Kwok, 2003). The historical transition of Hong Kong from a British colony to a Special Administrative Region under the sovereignty of the People’s Republic of China on July 1, 1997 did not bring about significant

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change to this bureaucratic-led governance system. It was clear from the outset that it was the intention of the Chinese government to maintain institutional continuity and stability in Hong Kong during the process of political transition (Cheung, 2010). In this connection, the senior civil servants, who were groomed by the British, were widely praised by both the London and Beijing governments for doing a good job in maintaining the efficient operation of government machinery under colonial rule. For the purpose of maintaining institutional continuity and stability, Beijing hoped that senior civil servants would continue to play a similar role under Chinese sovereignty after 1997 and therefore the bureaucratic-led governance system would function as the major pillar of the post-handover political order as in the colonial past (Cheung, 1998). As a consequence, the bureaucratic-led governance system as established in the British colonial period was essentially retained in the first five years of the posthandover period and almost all principal officials of the first Tung Cheehwa administration (from 1997 to 2002) were career civil servants. 2.2 Impetus for a New System of Political Appointment While the bureaucratic-led governance system was widely praised for its efficiency and effectiveness, it was not without its shortcomings. The principal limitation of the bureaucratic-led governance system was the blurring of the political accountabilities of senior civil servants. Despite their policy-making roles and dominant position in government affairs, the policy secretaries remained career civil servants who were appointed on typical civil service terms. As a consequence, the political accountabilities of these policy secretaries were blurred because in the event of serious policy failure they could evade political accountability to the people of Hong Kong and refuse to resign from office by hiding behind the principle of political neutrality and resorting to their permanent civil servant status (Cheung 2001, Burns 2004, 158). Such an institutional weakness of Hong Kong’s political accountability system was fully exposed in several important policy blunders during the first term of the Tung Chee-hwa administration, finally paving the way

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for the introduction of the political appointment system in Hong Kong. In the first few years of the Tung Chee-hwa administration, there was strong public pressure for senior civil servants to be held accountable for a series of policy and administrative blunders, including the mishandling of the avian flu epidemic in 1997, the chaos during the opening of the new Chek Lap Kok Airport in 1998 and the short-piling scandal of Home Ownership Scheme flats in 1999. Nevertheless, in all these cases the responsible government officials, because of the protection of their civil servant status, were able to escape the public blame and continued to stay in their positions. This resulted in growing public frustration that no one was held responsible for those serious policy blunders and there was an increasing demand from society that reforms should be implemented to hold senior government officials accountable for the outcome of their policies (Kwok, 2003). Apart from rising public concerns about the accountability of government officials, the bureaucratic-led governance system was also increasingly considered as an obstacle for the CE to establish his own governing team after 1997. After taking up the office of CE, Tung Cheehwa was usually described as a lonely outsider in the government and the senior civil service was considered as an obstacle to his various bold policy agenda (Wong, 2007). To push forward reforms in his priority policy areas, Tung assigned his most trusted non-official Executive Council members to steer and direct policy changes in the areas of housing, education and elderly welfare. Nevertheless, such a move was regarded as a departure from the colonial practice of relying on the civil service to formulate public policies and was fiercely resisted by the senior civil servants (Cheung 2000). As a consequence, there existed serious tensions within the top layer of the HKSAR government during the first term of the Tung Cheehwa administration, with conflicts between the CE and the non-official Executive Council members, on the one hand, and the senior civil servants headed by the former Chief Secretary for Administration, Anson Chan, on the other (Cheung, 2002). The tensions between the senior civil servants

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and the CE finally drove Tung Chee-hwa to introduce a kind of political ministerial system in an effort to appoint his own followers as principal officials and to establish his own governing team (Ma, 2007, 65). 2.3 Development of the Political Appointment System —  The Introduction of the Principal Officials Accountability System in 2002 and Its Expansion in 2008 Against the above background, the political appointment system was finally introduced to Hong Kong in 2002 during the second term of the Tung Chee-hwa administration, which converted a total of 14 principal official posts into politically appointed positions. After the re-election of Donald Tsang as the CE in 2007, the political appointment system was further expanded by creating two additional layers of under secretaries and political assistants. The first phase of the reform was implemented on July 1, 2002 when Tung Chee-hwa began his second term of office as CE in accordance with the reform, a total of 14 principal officials, that is, the three senior secretaries and eleven policy secretaries, would be nominated by the CE from within or outside the civil service for appointment by the Central People’s Government (CPG). These political appointees would not be employed on civil service contract terms and their terms of office would not exceed that of the CE who nominated them. Meanwhile, those civil service policy secretaries currently appointed at Directorate pay scale point 8 (D8 rank) would be renamed as “Permanent Secretary” under the new system. These permanent secretaries, being the most senior civil servants in their policy bureaux, would be responsible for providing policy advice and support to their respective principal officials (Information Services Department 2002). Quite obviously, the design of the POAS was intended to provide the CE with greater flexibility in forming his own governing team and also to hold those principal officials more directly responsible to the CE for their policy portfolios (Li, 2007). The political appointment system was further expanded during the Donald Tsang administration. In his maiden policy address, Donald

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Tsang stated that his administration would actively examine the need to create a small number of political positions. The major duty of these political appointees would be to support those principal officials in handling political work related to the formulation and implementation of policies (Tsang, 2005). Following the announcement made by Donald Tsang, the Constitutional Affairs Bureau in July 2006 launched a fivemonth public consultation exercise to seek community feedback on the further development of the political appointment system (Constitutional Affairs Bureau, 2006). The consultation paper stated that the existing layer of political appointees (i.e., senior secretaries and bureau directors) was too thin to accommodate the rising demands of political work, and therefore it was necessary to expand the political appointment system by creating the posts of deputy director (as deputy to the bureau directors) and political assistants (as supporting staff to the bureau directors and deputy directors in political liaison work) (Scott 2010, 62). In October 2007, the Donald Tsang administration issued the “Report on Further Development of the Political Appointment System,” recommending the creation of two additional layers of political appointment positions, namely undersecretaries and political assistants in the 12 policy bureaux (Constitutional Affairs Bureau, 2007). In April 2008 the Finance Committee of the Legislative Council approved the creation of twenty-four positions at these two levels and the CE appointed the first batch of eight under secretaries and nine political assistants in May 2008.

3. Political Controversies surrounding Political Appointments — The Challenges of Developing a Political Appointment System within a Semi-Democratic Regime Accordingly, the political appointment system was first introduced in 2002 by the Tung Chee-hwa administration and was further expanded under the Donald Tsang administration in 2008. Nevertheless, over the ten years since its implementation, popular support for the POAS has remained on the low side and its operation has continued to attract criticisms from

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society. Opinion polls indicated that public ratings on the POAS have stayed at the low level of below 50 points for most of the time since its implementation in 2002, reflecting the general negative public perceptions and comments on the political appointment system. The major exception was the period from 2005 to 2007 when the Donald Tsang administration was still enjoying a political honeymoon, by which the relatively stronger popular support base of the CE during that period had temporarily improved the public ratings of the POAS. But such a stock of political goodwill was depleted rapidly after 2008 and in recent years public ratings on the POAS have been generally on a decreasing trend again (Figure 3.1). For over a decade since its implementation in Hong Kong, the notion of a political appointment system has remained negative in the minds of the public and its operation has continued to draw criticisms from society. What are the reasons behind the negative public comments on the political appointment system? Why does the political appointment system, which is a common institution in Western democracies, result in so many problems when introduced to Hong Kong? For many political scientists, the HKSAR political system as configured in the Basic Law is basically a “semi-democracy” (Overholt, 2001). Hong Kong’s semi-democratic regime has several characteristics. The first feature is the deficit of democratic elections, by which the CE as the head of the HKSAR government is not elected by popular elections but is selected by an 800-person election committee and appointed by the CPG. The second feature is the co-existence of such an appointed executive branch and an elected legislature, resulting in a structural legitimacy crisis for the CE and his administration. The third feature is the marginalization of party politics in organizing and forming the government. The last feature is that senior civil servants have been seen as the most reliable governing elites and they continue to dominate the policy-making of the HKSAR government. The central argument here is that the various problems surrounding the political appointment system in Hong Kong are closely connected to the major features of its semi-democratic regime. The political appointment system introduced since 2002 is only a half-baked reform which injected the

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Figure 3.1 Public rating on Principal Officials Accountability System (2003–11) 70 60 50 40 30 20 10

Jan 2003 Jan 2004 Jan 2005 Jan 2006 Mar 2006 May 2006 Jul 2006 Sep 2006 Nov 2006 Jan 2007 May 2007 Jul 2007 Sep 2007 Nov 2007 Mar 2008 May 2008 Jul 2008 Sep 2008 Nov 2008 Jan 2009 Mar 2009 May 2009 Jul 2009 Sep 2009 Nov 2009 Jan 2010 Mar 2010 May 2010 Jul 2010 Sep 2010 Nov 2010 Jan 2011 Mar 2011 May 2011 Jul 2011 Sep 2011 Nov 2011

0

Source: Chinese University of Hong Kong (2011).

notion of political appointment into Hong Kong’s semi-democratic regime without implementing popular elections and party politics. As a result this new system has displayed increasing institutional incompatibility with the existing semi-democracy: the deficit of democratic elections, the legitimacy crisis facing the CE, the marginalization of party politics and the continued dominance of senior civil servants in policy-making under Hong Kong’s semi-democratic regime have made the political appointment system fall short of its original objectives and even created a number of new problems and controversies. As a consequence, the political appointment system has been criticized for failing to enhance the political accountability of principal officials, to select political appointees in an open and fair manner, to form a cohesive governing team, and to safeguard the political neutrality of the civil service. All these problems and controversies have undermined public confidence in the political appointment system, making it more a political burden than a political asset to the HKSAR government.

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3.1. Deficit of Democratic Elections — The Failure to Enhance the Political Accountability of Principal Officials When the political appointment system was introduced by the Tung Chee-hwa administration in 2002, it was packaged as a reform measure that would enhance the accountability of principal officials. When justifying the need to introduce the political appointment system, the Tung administration highlighted that under the POAS principal officials would be held accountable for their respective policy portfolios and they would have to step down in the event of major policy failures or personal misconduct. When compared with the previous bureaucratic-led governance system, the HKSAR government pledged that the new system would enable the principal officials “to be responsive to the calls of the community in assuming personal responsibility for the success or failure of their policies” (Tung, 2002). Undoubtedly, by implementing the political appointment system in the name of POAS and highlighting its objective in enhancing the political accountability of the executive branch, the HKSAR government had created a public expectation that the new system will make it easier to remove principal officials for major policy failures or personal misconduct. Unfortunately, developments over the past decade have demonstrated that the political appointment system has failed to live up to its commitment to improve the accountability of principal officials. Table 3.2 summarizes the eight major policy failures and political scandals since 2002 and clearly illustrates that, in most of the incidents surveyed, the responsible principal officials failed to take prompt action to respond to public demands for accountability. Instead of demonstrating their political accountability for the incidents by tendering their resignations, the principal officials usually chose to offer a public apology (e.g., the “penny stocks” incident, or the post-retirement employment of Leung Chi-man), or they tried to defend themselves by claiming that those controversial policies were collective decisions made by the entire governing team of the HKSAR government so that no individual official should be held responsible (the “chartered flight” incident, and the replacement mechanism for filling vacancies in the Legislative Council). Although in three out of the eight

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Table 3.2 Major policy failures/personal misconduct of principal officials since the implementation of the political appointment system in 2002 Tung Chee-hwa administration 1. “Penny stocks” incident (2002) Description of the incident • On July 25, 2002, the Hong Kong Exchanges and Clearing Limited (HKEx) published a consultation paper on the delisting mechanism of penny stocks. The release of the paper triggered off massive decline of penny stocks listed in the market. At the subsequent special meeting of the Legislative Council Panel on Financial Services, the Secretary for Financial Services and the Treasury Frederick Ma remarked that due to the enormous amount of papers he had received, he did not read the summary of the proposals forwarded to him by the HKEx. Frederick Ma was severely criticized by the legislators and the public for trying to shift the responsibility to the management of the HKEx. Results • In view of the wide public concern about the penny stocks, incident, the Financial Secretary Anthony Leung appointed an independent panel of inquiry to look into the circumstances leading to the incident. On September 10, 2002, the panel of inquiry released its investigation report ruling that Frederick Ma had not had failed in the discharge of his responsibilities. The findings of the investigation was severely criticized by the public and one day later, Frederick Ma openly remarked that he accepted public criticisms about his sub-par performance in the penny stock incident and he sincerely apologized to the public. Kwong Ki-chi, chief executive of HKEx resigned shortly after the release of the investigation report. 2. “Car-purchasing” scandal (2003) Description of the incident • On March 9, 2003, a newspaper reported that the Financial Secretary Anthony Leung had purchased a car prior to his announcement of an increase in motor vehicles first registration tax on the Budget Speech on March 5, 2003. Anthony Leung clarified that he bought a car out of practical need and did not have any intention to avoid tax for personal gain. Anthony Leung was severely criticized by the legislators and the public for the perceived conflict of interest. Results • On March 15, 2003, the CE, Tung Chee-hwa, announced that Anthony Leung had tendered his resignation and he considered this as an “honourable act” on his part. Tung decided that Leung’s mistake only warranted a formal criticism and thus did not accept his resignation. Tung’s decision was severely criticized by the public for covering up Leung’s mistake. • Following the July 1 protest rally, Anthony Leung finally resigned from the post of Financial Secretary on 16 July 2003, over five months after the beginning of the whole saga. 3. National security bill saga (2003) Description of the incident • The Tung Chee-hwa administration introduced the national security bill which aimed at legislating Article 23 of the Basic Law. Secretary for Security Regina Ip, who took charge of the legislative programme of the national security bill, was severely criticized by legislators and the public for the tactics she had employed to hard-sell the bill. Over 500,000 people took part in the mass procession on July 1, 2003 to express their opposition against the national security bill. Results • Despite the July 1 protest rally, Tung Chee-hwa announced that his administration would put forward the second reading debate on the bill in the Legislative Council on July 9, 2003 as originally scheduled. Only after James Tien, chairman of the Liberal Party, tendered his resignation from the Executive Council on July 6, Tung was forced on July 7, 2003 to defer his legislative plan. • On July 16, 2003, Regina Ip stepped down from the post of Secretary for Security but she insisted that her resignation was a move on personal grounds, rather than an action to take political responsibility for the strong public dismay caused by the national security bill.

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4. Mishandling of the SARS outbreak (2003) Description of the incident • In early 2003, a new infectious disease called SARS broke out in Hong Kong and spread from Hong Kong to other countries and regions within a very short period. There were over 1,700 infected cases and the number of deaths exceeded 300 persons. The Secretary for Health, Welfare and Food Yeoh Eng-kiong was severely criticized by the legislators and the public for the slow responses and mishandling during the SARS outbreak. Results • As the principal official overseeing the health care matters in Hong Kong, Yeoh Eng-kiong refused to step down from his post for several times despite of the clear and strong public demand that he should take responsibility for the SARS outbreak and for the death of 300 people during the crisis. • About one year after the SARS outbreak, the Legislative Council released its independent inquiry report on July 5, 2004 and the report severely criticized Yeoh’s performance during the incident. Following the release of the report, Yeoh Eng-kiong finally tendered his belated resignation to the CE on July 7, 2004, over one year after the outbreak of SARS. Donald Tsang administration 5. “Charter flight” incident (2008) Description of the incident • Political strife in Thailand had paralysed Bangkok’s main airport and hundreds of Hong Kong residents stranded in the airport. On November 30, 2008, the HKSAR Government decided not to send chartered flights to bring the stranded Hong Kong residents home. But only one day later the Government made a U-turn by sending chartered flights to Thailand, but the decision only came after news that a Hong Kong resident died in a road accident as he rushed to catch a flight back to Hong Kong. The Secretary for Security, Ambrose Lee, who had been out of town at the weekend, was severely criticized for responding slowly. Results • On December 2, 2008, Ambrose Lee offered a public apology saying that he shouldered full responsibility for the incident. • On December 3, 2008, the Chief Secretary for Administration Henry Tang once again apologized on behalf of the HKSAR Government for inconvenience caused to those Hong Kongers who had been stranded in Thailand. But Henry Tang refused to hold any individual official responsible for the chaos during the incident and he insisted that the initial decision not to send chartered flights to Thailand had been a collective decision made by the whole governing team. 6. Post-retirement employment of Leung Chi-man (2010) Description of the incident • In August 2008, the retired Director of Building Services Leung Chin-man was appointed as deputy chairman of New World China Land. As it was well-known that Leung during his service in the government had made a “wrong decision” in the sale of Hunghom Peninsula development project that led to millions of dollars extra in profits for New World China Land, the public severely criticized the Secretary for the Civil Service Denise Yue’s approval on Leung’s post-retirement employment and considered this case a prominent example of government-business collusion. Results • On August 15, 2008, Denis Yue submitted a report to the CE admitting that she had not thought of the Hunghom Peninsula case when approving Leung’s. She apologized to the public but hinted that she would not resign. • On December 8, 2010, the Legislative Council Select Committee released its investigation report and criticized Denise Yue for committing a grave error of judgement by approving Leung’s application for post-retirement employment. In response to the investigation report, Denise Yue offered her public apology again but emphasized that she had not thought of resigning.

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7. 2011 / 2012 Budget Speech saga (2011) Description of the incident • The Budget announced by the Financial Secretary John Tsang on February 23, 2011 was severely criticized by the legislators and the public for failing to address the deep-rooted social problems. In particular, Tsang’s proposal to inject a sum of $6,000 to every citizen’s Mandatory Provident Fund (MPF) accounts was considered as ineffective in addressing people’s immediate needs. Despite widespread public anger, Tsang insisted that there was no room to amend the Budget. However due to the pressure of the pro-establishment legislators, Tsang made a U-turn on March 8, 2011 by amending to the Budget, including the grant of all permanent adult residents a sum of $6,000 and a tax rebate of 75% of income tax. There were growing public pressure that Tsang should take responsibility for the chaos and the Budget U-turn. Results • The Budget was finally passed by the Legislative Council on March 14, 2011 with the support of pro-establishment legislators. But John Tsang refused to shoulder responsibility for the chaos either by tendering resignation or by offering a public apology. 8. Replacement mechanism for filling the vacancies of Legislative Councillors (2011) Description of the incident • On May 31, 2011, the Secretary for the Constitutional and Mainland Affairs Stephen Lam introduced a bill into the Legislative Council on the replacement mechanism for filling the vacancies of legislators. Lam was severely criticized by pro-democratic legislators for pushing through the bill without a public consultation and for tactics he used for hard selling the replacement mechanism. About 220,000 people joined the July 1 protest rally to voice their opposition against the replacement mechanism. Results • In the face of widespread public anger, the HKSAR government announced on July 4, 2011 a postponement of the legislation of replacement mechanism and a two-month public consultation. There was mounting public pressure that Stephen Lam as the official taking charge of the bill should resign to shoulder responsibility for the whole incident. But Stephen Lam insisted that the introduction of replacement mechanism was a collective decision made by the Executive Council and he was only the official responsible for implementing the legislation.

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incidents the relevant principal officials did finally step down, the HKSAR government had either been dilatory in responding to public calls (e.g., the “car-purchasing” scandal and mishandling of the SARS outbreak) or the responsible official insisted that she resigned for “personal reasons” instead of shouldering political responsibility for the incident (e.g., the national security bill saga). By failing to enforce the timely resignations of principal officials who have committed serious policy failures and personal misconduct, the political appointment system has given the public an impression that the system is no more accountable than the previous bureaucratic-led system (Scott 2010, 294). Why did the POAS fail to live up to its commitment to improve the accountability of principal officials? It is comprehensible that this problem is closely related to the deficit of democratic elections under Hong Kong’s present semi-democratic regime? As pointed out by Patricia Day and Rudolf Klein, political accountability begins when government officials are given responsibility for carrying out tasks and exercising powers on behalf of their fellow citizens, under which they have a continuing obligation to explain and justify their conduct in public. Nevertheless, the right of people to call government officials to account must be complemented by the ability of people to call government officials to account. Under modern democratic regimes, people exercise their control over government officials through the “chain of accountability;” all the powers and authorities exercised by government are derived from the people through democratic elections and that those government officials in power are exposed to the discipline of regular multiparty elections. As such, the mechanism of regular democratic elections has functioned as an effective chain of accountability that guarantees the political accountability of the government of the day to the people (Day and Klein, 1987, 6–9). From this perspective, it is crystal clear that the failure of the political appointment system to enhance the accountability of principal officials is the direct result of the deficit of democratic elections in semi-democratic Hong Kong. Under the existing semi-democratic regime, the CE, the head of the HKSAR government, is not elected by the people of Hong Kong through popular elections but is selected by an 800-person election

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committee for subsequent appointment by the CPG. Principal officials, whether civil service ministers before 2002 or politically appointed ministers after 2002, are nominated by the CE and appointed by the CPG (Li, 2007). Given such a power structure, the CE and his principal officials derive their authority from the CPG instead of from the people of Hong Kong through regular democratic elections. Therefore it goes without saying that these political appointees are responsible to the Beijing government (which holds the power of appointment and removal of the CE and principal officials under the Basic Law), rather than to the public or the partially-elected Legislative Council (Cheung, 2003). When there are major policy failures and personal misconduct, principal officials can refuse to resign and remain in office so long as they have the blessing of the Beijing government and the CE. In other words, there is no institutional mechanism under the present semi-democratic regime to remove principal officials even if they have lost the confidence of the Legislative Council and the people (Cheung 2003, Burns 2004, 158–59). The political fortune of Stephen Lam as Secretary for Constitutional and Mainland Affairs is an illustrative example. Starting from 2002, when he took up the office, Lam’s approval ratings always remained below 50%. During the replacement mechanism saga in 2011, Stephen Lam was severely criticized for pushing through the proposal without a public consultation and for the tactics he had used for hardselling the proposal. Despite the widespread public anger against his performance, Stephen Lam refused to shoulder any responsibility either by tendering resignation or by offering a public apology. Ironically, Stephen Lam even succeeded Henry Tang and was promoted to the position of Chief Secretary for Administration in October 2011. Stephen Lam’s case fully illustrates that the political fortunes of principal officials under the political appointment system depend very much on the blessing of the Chinese government and the CE, rather than the judgement of the Legislative Council and prevailing public opinion. As a consequence of the deficit of democratic elections under Hong Kong’s present semi-democratic regime, the HKSAR government’s pledge to enhance its accountability to the people through the political appointment system is difficult to adhere to and fulfil.

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3.2. Legitimacy Crisis Facing the Chief Executive —  The Failure To Select Political Appointees in an Open and Fair Manner Since the implementation of the political appointment system in 2002, one of the most common criticisms made by its critics is that political appointees have not been selected in an open and fair manner. In particular, the pro-democracy legislators have usually criticized the political appointment system for having greatly strengthened the discretionary personnel power of the non-popularly elected CE and enabled him to reward his followers and supporters with political patronage. “Black-box operation,” “political cronyism” and “adoption of affinity differentiation approach” are accusations commonly made by critics of the political appointment system to query the selection of political appointees, thus seriously undermining the public credibility of the whole system. The political controversies surrounding the selection and appointment of under secretaries and political assistants in 2008 were indicative of the challenges facing the HKSAR government. In May 2008, the Donald Tsang administration appointed the first batch of under secretaries and political assistants. For the purpose of selecting candidates, the Donald Tsang administration put in place a set of appointment procedures for under secretaries and political assistants. According to the information announced by the HKSAR government, candidates for these positions would be screened by interviewing panels. The interviewing panel for under secretary was chaired by the Chief Secretary for Administration with a number of policy secretaries and the director of the Chief Executive’s Office as members, whereas the interviewing panel for political assistants was chaired by the director of the Chief Executive’s Office or the Secretary for Constitutional and Mainland Affairs with one to two other policy secretaries as members. The final appointment decisions were made by an appointment committee personally chaired by the CE (Information Services Department, 2008). Nevertheless, when the Donald Tsang administration announced the list of appointments in May 2008, it still attracted severe criticisms from

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the local media and pro-democracy legislators. The major criticism was that the selection of candidates was a “black-box operation” which was not fair and transparent enough. In particular, critics alleged that the whole selection and appointment processes were manipulated by the director of the Chief Executive’s Office, Norman Chan Tak- lam (Hong Kong Economic Journal, 2008). Several under secretaries and political assistants including Julia Leung Fung-yee (Under Secretary for Financial Services and the Treasury), Florence Hui Hiu-fai (Under Secretary for Home Affairs), Kenneth Chen Wei-on (Under Secretary for Education) and Katherine Ng Kit-shuen (political assistant to the Secretary for Financial Services and the Treasury) were considered as handpicked by the director of the Chief Executive’s Office, because they had been worked closely previously with Norman Chan in the Hong Kong Monetary Authority, the Standard Chartered Bank or the pro-government think-tank, the Bauhinia Foundation Research Centre. There were also criticisms that the HKSAR government had practiced an “affinity differentiation approach” and “political cronyism” by only appointing people from pro-government political parties like the Democratic Alliance for the Betterment and Progress of Hong Kong (DAB) and the Liberal Party (LP), namely Gregory So Kam-leung (Under Secretary for Commerce and Economic Development, DAB member), Raymond Cheung Man-to (political assistant to the Secretary for Development, DAB member), Caspar Tsui Ying-wai (political assistant to the Secretary for Home Affairs, DAB member) and Jeremy Young Chit-on (political assistant to the Secretary for Education, LP member). Worse still, when the appointments were announced the Donald Tsang administration came under fire for its refusal to disclose the exact salaries of the under secretaries and political assistants. The political controversies were further stirred up following the revelation in the media that five out of the eight under secretaries had foreign passports, giving rise to public concerns as to whether it was appropriate for under secretaries to take up the duties of policy secretaries in their absence (as principal officials are not allowed to have right of abode in foreign countries under the Basic Law) (South China Morning Post, 2008a). All these controversies and criticisms surrounding the appointment of under secretaries and

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political assistants finally resulted in rising public dismay with the Donald Tsang administration and depleted the stock of political goodwill enjoyed by Donald Tsang since taking up the office of CE in 2005 (Cheung, 2010). It was apparent that the political appointment system in Hong Kong, which is characterized by the head of government’s selection of his political supporters as political executives, resembles that of the U.S. and U.K., whereby the president and the prime minister, respectively, are entitled to pick their own political ministers. Why does apparently the same appointment process stir up so much controversy and criticism when applied in the Hong Kong context? Quite obviously, it is the direct consequence of the legitimacy crisis facing the HKSAR CE under the present the semi-democratic regime that has made it difficult for the whole selection and appointment process to command a satisfactory level of public trust and confidence. Under Hong Kong’s existing semi-democratic regime, the nonpopularly elected CE is encountering constant political challenges from pro-democracy legislators who are mainly returned by direct elections. As a result of the political challenges of the democratic opposition, the CE has become trapped in a structural crisis of legitimacy and struggles to accommodate the rising public demand for democracy. The structural deficit of political legitimacy has therefore made it difficult for the HKSAR government to command trust, respect and acceptance from the general public, and the democratic opposition could usually delegitimize the policy proposals of the CE by mobilizing public opinion support (Ma, 2007, Scott, 2007). Without doubt, such a structural legitimacy crisis facing the CE has seriously hindered the smooth functioning of the political appointment system in Hong Kong. Unlike the president of the U.S. and the prime minister of the U.K., who are winners of popular elections and enjoy a strong political mandate to govern, the right and authority of the CE to govern Hong Kong is constantly being challenged by the democratic opposition. As a consequence of the structural crisis of legitimacy, the political appointment system in Hong Kong has been actually operated within an atmosphere of political distrust and cynicism. Once the choices

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of some political executives are considered as publicly unacceptable, or the selection process is seen as not transparent enough, as in the appointment of under secretaries and political assistants in 2008, the democratic opposition and the public will seriously doubt the legitimacy and integrity of the selection process and the HKSAR government will then find it extremely difficult to defend its appointment decisions (Cheung, 2010). From this perspective, the operational logic of political appointments has displayed growing incompatibility with Hong Kong’s semi-democratic regime and the HKSAR government has had to pay a heavy political price for its appointment decisions. 3.3. Marginalization of Party Politics —  The Failure To Form a Cohesive Governing Team One of the reasons behind the introduction of the political appointment system in 2002 was that Tung Chee-hwa attempted to establish a cohesive governing team by appointing his own followers as principal officials. Unfortunately, the political developments in the past ten years have demonstrated that not only has the political appointment system failed to achieve the objective of establishing a more cohesive governing team, but also the cohesiveness and solidarity of the top layer of the HKSAR government has even been severely weakened, particularly when compared with the previous bureaucratic-led governance system. For example, Alice Tai Yuen-ying, the former Ombudsman and also an experienced Administrative Officer, was highly critical of the political appointment system, arguing that senior government officials nowadays only focus on their own policy areas and do not work as a team. She claimed that in the past when major government positions were all filled by civil servants, government officials “all used to be on the same boat and same team sharing common values” (Hong Kong Economic Journal, 2009). Anson Chang Fang On-sang, the former Chief Secretary for Administration, also openly criticized on many occasions the lack of mutual trust and spirit of team work amongst principal officials under the political appointment system (Hong Kong Economic Journal, 2011).

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Why did the political appointment system fail to achieve its original objective of establishing a cohesive governing team? Tables 3.3 and 3.4 survey the occupational backgrounds of all politically-appointed senior secretaries, policy secretaries, under secretaries and political assistants since 2002. The empirical findings indicate that the occupational backgrounds of the political appointees were quite diverse and differentiated. Many of them came from the civil service, the business community and professional sectors, and a few of them previously worked in social services sectors or media and cultural sectors. Table 3.5 further reviews the political affiliations of all the political appointees and it was found that nearly 90% of the political executives could be classified as independents with no connections with any major political parties in Hong Kong. All these empirical findings have provided important clues as to why the political appointment system has failed to form a cohesive governing team. In the era of bureaucratic-led governance system, the vast majority of principal officials were promoted from the Administrative Officer grade. From this perspective, the Administrative Officer grade had effectively functioned as a “quasi-political party” serving as an institutionalized platform for senior government officials to work and grow within the same culture and environment. The esprit de corps, cohesion and longtime cooperative relationship had effectively served as the unifying force of the Hong Kong government in the past (Scott, 2011, 71). In other words, the implementation of the political appointment system in 2002 effectively terminated the function of the Administrative Officer grade as a “quasipolitical party” in providing a sense of unity in the top layer of the HKSAR government, but it failed to put in place a new system of party politics for integrating, grooming and incorporating new governing elites. Under Hong Kong’s present semi-democratic regime, the CE is prohibited from affiliating with any political party and there exists no overarching governing party. Section 31 of the Chief Executive Election Ordinance provides that the candidate elected as CE should publicly make a statutory declaration that he is not a member of any political party, thereby effectively prohibiting the CE from being a member of a political party and making it impossible to form a governing party in Hong Kong

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Table 3.3 Occupational backgrounds of senior secretaries and policy secretaries under the Political Appointment System Senior Secretaries and Policy Secretaries appointed in 2002 Occupational Background

Senior Secretaries and Policy Secretaries appointed in 2007

No.

%

No.

%

Civil service (Including civil servants from various civilian and disciplinary grades)

6

42.9%

10

66.7%

Business (Including company chairmen, directors, executives and managers)

4

28.6%

2

13.3%

Professional (Including professionals from legal, accounting, architecture, surveying, planning, engineering, medical and health sectors)

3

21.4%

2

13.3%

Social services (Including practitioners from education, community and social services, and religious sectors)

1

7.1%

1

6.7%

14

100.0%

15

100.0%

Total

Note: “Occupational background” refers to the last full-time job position of the political appointee before joining the HKSAR Government. The above statistical analysis only covers those political executives appointed in 2002 and 2007 when new HKSAR government administrations were formed, but excluding those political appointments that were made in between as a result of personnel changes. Source: Author’s own research based on the background information of the political appointees announced by the HKSAR government.

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Table 3.4 Occupational backgrounds of under secretaries and political assistants under the Political Appointment System Under Secretaries appointed in 2008 Occupational Background

Political Assistants appointed in 2008

No.

%

No.

%

Civil service (Including civil servants from various civilian and disciplinary grades)

2

25.0%

1

11.1%

Business (Including company chairmen, directors, executives and managers)

1

12.5%

3

33.3%

Professional (Including professionals from legal, accounting, architecture, surveying, planning, engineering, medical and health sectors)

1

12.5%

2

22.2%

Social services (Including practitioners from education, community and social services, and religious sectors)

3

37.5%

3

33.3%

Media and culture (Including media, arts, cultural and publication sectors)

1

12.5%

0

0.0%

Total

8

100.0%

9

100.0%

Note: “Occupational background” refers to the last full-time job position of the political appointees before joining the HKSAR government. The above statistical analysis only cover the first batch of under secretaries and political assistants appointed by the HKSAR government in May 2008, but excluding those political appointments that were made subsequently as a result of personnel changes. Source: Author’s own research based on the background information of the political appointees announced by the HKSAR government.

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Table 3.5 Political affiliations of political appointees Senior Secretaries and Policy Secretaries appointed in 2002

Senior Secretaries and Policy Secretaries appointed in 2007

Under Secretaries and Political Assistants appointed in 2008

Total

Political affiliation

No.

%

No.

%

No.

%

No.

%

(1) Independent

13

92.9%

15

100.0%

13

76.5%

41

89.1%

(2) Pro-democracy political groups

0

0.0%

0

0.0%

0

0.0%

0

0.0%

(3) Pro-establishment political groups

1

7.1%

0

0.0%

4

23.5%

5

10.9%

Democratic Alliance for the Betterment and Progress of Hong Kong

0

0.0%

0

0.0%

3

17.6%

3

6.5%

Liberal Party

1

7.1%

0

0.0%

1

5.9%

2

4.3%

14

100.0%

15

100.0%

17

100.0%

46

100.0%

Total

Note 1: “Independent” refers to political appointee who has no affiliation with any political parties/political groups. Note 2: “Pro-democracy political groups” refer to Democratic Party, Civic Party [Article 45 Concern Group], League of Social Democrats, People’s Power, Association for Democracy & People's Livelihood, Hong Kong Confederation of Trade Unions, Neighbourhood & Workers Service Centre, Civic Act-up, Frontier [disbanded] or Citizens Party [disbanded]. Note3: “Pro-establishment political groups” refer to Democratic Alliance for the Betterment and Progress of Hong Kong, Hong Kong Federation of Trade Unions, Liberal Party, Economic Synergy, Professional Forum [The Alliance / Breakfast Group], Federation of Hong Kong and Kowloon Labour Unions, New Century Forum, New People’s Party [Savantas Policy Institute] or Hong Kong Progressive Alliance [disbanded]). Source: Author’s own research based on the background information of the political appointees announced by the HKSAR government.

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(Cheung, 2002). As a result, unlike the major democratic regimes where the elected head of government and his or her ministers all come from the same political party, sharing the same political values and having long-term cooperative relationships, political executives in Hong Kong are appointed on individual basis. Without the support of an overarching governing party, when appointing political executives, the CE usually finds it very difficult to recruit a team who share similar political beliefs with him or have previous co-working experiences (Ma, 2007, 66). Therefore the CE is often required to form his governing team by appointing people from different sectors such as the civil service, business community, professional sectors and social services sectors. It is therefore not surprising that these political appointees are not bound by the ties of a common political organization and even have little or no co-working experience. Hong Kong’s experiences have clearly demonstrated that to implement the political appointment system within a party-less semi-democratic regime would only erode the solidarity and cohesiveness of the governing team. 3.4 Continued Dominance of Senior Civil Servants in Policy-Making — The Failure To Safeguard the Political Neutrality of the Civil Service One of the most important justifications commonly employed by the HKSAR government for defending the implementation and expansion of the political appointment system is that it could bring about a better division of work between political executives and senior civil servants and therefore helps safeguard the political neutrality of the civil service team. For example, in the “Report on Further Development of the Political Appointment System” issued in October 2007, the HKSAR government claimed that the creation of additional political positions, namely the under secretaries and political assistants, “will enhance the capacity of the political team to take on political work with the support of civil servants, and will, therefore, be conducive to maintaining the political neutrality of the civil service” (Constitutional Affairs Bureau, 2007, 7). In other words, under the political appointment system senior civil servants are expected to handle less sensitive political work and to focus mainly on providing policy

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advice and administrative support to their political masters. Nevertheless, the political developments in the past ten years have indicated that despite the implementation of the political appointment system, senior civil servants are still required to shoulder a lot of legislative work and have been assigned to handle highly controversial policy issues for their political masters. First of all, although the expansion of the political appointment has in a certain extent reduced the legislative workload of civil servants, the workload borne by civil servants is still very significant. Table 3.6 compares the legislative workload of political officials (senior secretaries, policy secretaries, under secretaries and political assistants) and civil servants (permanent secretaries, deputy secretaries, assistant secretaries, directors Table 3.6 Comparing the policy explanation work between political officials and civil servants 2006–2008

2008–2010

No. of meetings attended

No. of speeches made

No. of meetings attended

Change in terms of no. of meetings attended (2006–2008 v. 2008– 2010)

All political officials

994

7,543

1,200

+20.7%

Secretary

No. of speeches made

Change in terms of no. of speeches made (2006–2008 v. 2008– 2010)

7,277

-3.5% -22.9%

994

7,543

921

-7.3%

5,818

Under secretary

–

–

244

–

1,458

–

Political assistant

–

–

35

–

1

–

1,783

6,036

1,680

-5.8%

3,042

- 49.6%

308

1,371

239

-22.4%

439

-68%

Deputy secretary

529

1,880

413

-21.9%

770

-59%

Assistant secretary

197

254

238

+20.8%

193

-24%

All civil servants Permanent secretary

Director

314

1,325

283

-9.9%

832

-37.2%

Deputy director

241

768

243

-0.8%

551

-28.3%

Others

194

438

264

+36.1%

257

-41.3%

*Note: Including Legislative Council meetings, panel meetings and Finance Committee meetings. Source: SynergyNet (2010)

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and deputy directors, etc.) before and after the expansion of the political appointment system in 2008. The table demonstrates that although the number of speeches made by different ranks of civil servants at the Legislative Council reduced by 49.6% between 2008 to 2010, the number of meetings attended by civil servants only decreased by 5.8% and they were still required to shoulder at least one-third of the policy explanation work at various meetings. All these statistics show that while the further development of the political appointment system has somehow reduced the legislative workload of civil servants from different ranks, legislative work is still part of the day-to-day duty of senior civil servants. Not only do civil servants need to attend most of the Legislative Council meetings, as in the past, but it is also common for them to directly confront the criticisms of Legislative Councillors and to publicly defend government policies. Worse still, it was not uncommon to see that senior civil servants were assigned to undertake the responsibility of answering critical questions from legislators on sensitive government policies while the political executives were absent from the relevant meetings. An illustrative example was the special meeting of the Legislative Council Panel on Information Technology and Broadcasting held on October 2011. At this meeting, government officials were summoned by Legislative Councillors to discuss the controversial issues relating to the appointment of the new Director of Broadcasting. Despite the political sensitivity of this issue, the Secretary for Commerce and Economic Development, Gregory So Kam-leung, as political official did not attend the meeting and all the government officials attending the discussion were civil servants including the Permanent Secretary for Commerce and Economic Development, Elizabeth Tse Man-yee, Deputy Secretary for the Civil Service, Ingrid Yeung Ho Poi-yan, and the Director of Broadcasting, Roy Tang Yun-kwong (Legislative Council Secretariat, 2011). This incident clearly demonstrates that under the political appointment system senior civil servants not only need to shoulder a lot of legislative work, but on certain occasions they are even assigned to cover for their political masters in the defence of controversial government policies at the Legislative Council. Apart from shouldering a substantial amount of legislative work, it

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is also common to see that senior civil servants were assigned to handle controversial policy issues as in the past (Scott, 2010, 65). The “charter flight” incident and the “taxi blockade” saga, both of which happened in 2008, were highly indicative of this phenomenon. In the “charter flight” incident, when the Secretary for Security, Ambrose Lee Siu-kwong, was away from Hong Kong, the important and sensitive task of evacuating passengers stranded in Thailand by political unrest was handled by senior civil servants in the Security Bureau, particularly Deputy Secretary Ngai Wing-chit. When the Security Bureau announced its decision not to send chartered flights to Thailand to bring the stranded Hong Kong residents home, it was Ngai Wing-chit who spoke on behalf of the HKSAR government to publicly explain and defend such a controversial decision while political assistant to the Secretary for Security, Victor Lo Yik-kee, entirely disappeared from the public horizon (South China Morning Post, 2008b). In the “taxi blockade” saga, the Under Secretary for Housing and Transport, Yau Shing-mu, was heavily criticized for not taking prompt action and relying on civil servants to handle the grievances of the taxi drivers. In this incident, Yau Shing-mu, who took charge of the implementation of the new taxi fare mechanism, received a telephone call from Legislative Councillor Leung Yiu-chung who warned that the taxi drivers were going to blockade the airport unless the Housing and Transport Bureau agreed to talk to them about the new taxi fare system. Unfortunately, Yau Shing-mu failed to grasp the political sensitivity of the issue and did not take immediate action to negotiate with the taxi drivers. He only referred the matter to civil servants of the Transport Department for follow-up action. Dissatisfied with the response of the government, the taxi drivers blocked the expressways from the airport that night causing serious disruption to the operation of the airport (South China Morning Post, 2008c). The involvement of civil servants in handling controversial and sensitive policy issues not only defeats the original objective of the political appointment system in making a clearer demarcation of functions between political executives and civil servants, it also puts heavy political pressure on senior civil servants and seriously undermines their political

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neutrality. The resignation of Fanny Law Chiu-fan was an illustrative example. During her tenure as the permanent secretary for Education and Manpower, Fanny Law assisted the Secretary for Education and Manpower Arthur Li Kwok-cheung in pushing forward the controversial education reforms. Fanny Law actively engaged in soliciting public support for the education reforms and on many occasions directly confronted legislators and representatives of the education sector. Her appointment as Commissioner of the Independent Commission Against Corruption in 2006 did not save her from political controversy and she was accused of interfering with academic freedom by exerting improper pressure on two academic staff of the Hong Kong Institute of Education when discharging the duties of Permanent Secretary for Education and Manpower. In June 2007, the independent panel of inquiry set up by the HKSAR government ruled that Fanny Law had interfered with academic freedom and she immediately took early retirement from the civil service (Cheung, 2011). The case of Fanny Law has fully demonstrated that when senior civil servants have been assigned to assist their political masters in making and defending controversial policy decisions, it is difficult for them in practice to keep themselves apart from politics and the promise of upholding the political neutrality of civil servants becomes just empty talk. The failure of the political appointment system in safeguarding the political neutrality of the civil service is closely related to Hong Kong’s semi-democratic regime. Under the present semi-democratic regime, the number of political positions in each policy bureau is still very limited and the existing political layer is certainly too thin to deal effectively with the heavy demands of political and legislative work. The underdevelopment of party politics adds fuel to this problem because the limited supply of political talent in political parties points to the fact that senior civil servants are still the most reliable governing elites in Hong Kong today. As a consequence, although one of the principal objectives of the political appointment system was to put in place a better demarcation of functions between political executives and civil servants, in practice senior civil servants are still heavily engaged in handling legislative work and also in making and defending controversial policy decisions. When the

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involvement of civil servants in partisan and legislative politics is a normal part of political life in semi-democratic Hong Kong, it would be practically difficult to safeguard the political neutrality of the civil service.

4. Conclusion Political appointment system has been common in many Western democracies. In this connection, the mechanism of regular democratic elections and the system of party politics are the necessary institutionalized foundations that guarantee the smooth functioning of the political appointment system in Western democracies: Through the discipline of regular multiparty elections, an effective chain of accountability can be established between the political executives and the people and also the elected head of government can establish the necessary popular mandate to appoint his political followers to join his governing team. By virtue of the support of a governing party machinery, the elected head of government could effectively line-up a team of followers with common political values and co-working experiences to form a cohesive governing team and the rich pool of political talent within political parties available for government recruitment would also mean that the political executives do not need to rely on senior civil servants to handle controversial political work. In other words, the institutionalized foundations of regular democratic elections and party politics help ensure the smooth functioning of the political appointment system in Western democracies, making it an essential political arrangement that could enhance the political accountability of the government of the day, increase the cohesiveness of the governing elites and safeguard the political neutrality of the civil service. From this perspective, the principal problem of the political appointment system in post-handover Hong Kong is that its introduction and development have not been made part of the wider constitutional reforms. Operating within a semi-democratic regime where the mechanism of regular democratic elections is absent and the system of party politics is marginalized, the political appointment system in Hong Kong is

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unquestionably a half-baked reform and has only displayed increasing institutional incompatibility with the existing political systems. As a consequence of its incompatibility with the existing semi-democratic regime, since its implementation the political appointment system has been an endless source of political controversies and widely criticized for failing to enhance the political accountability of principal officials, to select political appointees in an open and fair manner, to form a cohesive governing team, or to safeguard the political neutrality of the civil service. All these problems and controversies have seriously undermined public confidence in the political appointment system, making it a political burden more than a political asset to the HKSAR government. To get out of the political quagmire of institutional incompatibility, further development of the political appointment system should not be made in a piecemeal way but must be considered as an essential part of Hong Kong’s wider constitutional reforms. When Hong Kong is gradually moving towards the ultimate objective of implementing universal suffrage for CE elections in 2017 and Legislative Council elections in 2020 as specified by the decision of the Standing Committee of the National People’s Congress, the political appointment system should be reformed in such a way that could facilitate the smooth functioning of Hong Kong’s future democratic regime. Without a clear roadmap for the introduction of democratic elections and party politics, it is quite likely that the political appointment system would continue to become a source of political controversies in the years to come.

References Barnett, Hilaire, Constitutional and Administrative Law. United Kingdom: Cavendish Publishing, 2002. Burns, John P., Government Capacity and the Hong Kong Civil Service. Hong Kong: Oxford University Press, 2004.

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Burns, John P., “Enhancing ‘Executive Accountability’ in the Hong Kong Government” in Public Service Reform in East Asia: Reform Issues and Challenges in Japan, Korea, Singapore and Hong Kong, ed. Anthony B. L. Cheung, 125–56 Hong Kong: Chinese University Press, 2005. Cheung, Anthony B. L., “The Transition of Bureaucratic Authority: The Political Role of the Senior Civil Service in the Post-1997 Governance of Hong Kong” in Political Order and Power Transition in Hong Kong, ed. Li Pang-kwong, 79–108. Hong Kong: Chinese University Press, 1998. Cheung, Anthony B. L., “New Interventionism in the Making: Interpreting State Interventions in Hong Kong after the Change of Sovereignty,” Journal of Contemporary China 9, No. 24 (2000): 291–308. Cheung, Anthony B. L., Submission to the Legislative Council Panel on Constitutional Affairs on the proposed “System of Accountability for Principal Officials” on February 17, 2001 (www.legco.gov.hk/yr00-01/ english/panels/ca/papers/b972e02.pdf) Cheung, Anthony B. L. (2002), “The Changing Political System: Executiveled Government or ‘Disabled’ Governance?” in The First Tung Chee-hwa Administration ed. Lau Siu-kai, 41–68. Hong Kong: Chinese University Press, 2002. Cheung, Anthony B. L., “Executive-led Governance or Executive Power ‘Hollowed-out’ — The Political Quagmire of Hong Kong,” Asian Journal of Political Science 15(1) April (2007): 17–38. Cheung, Anthony B. L., In Search of Trust and Legitimacy: The Political Trajectory of Hong Kong As Part of China, International Public Management Review 11(2) (2010): 38–63. Cheung Chor-yung, “Accountability and Open Government,” in Building Democracy: Creating Good Government for Hong Kong, ed. Christine Loh and Civic Exchange, 35–43. Hong Kong: Hong Kong University Press, 2003. Cheung Chor-yung, “The Principal Officials Accountability System: Not Taking Responsible Government Seriously?” in The July 1 Protest Rally: Interpreting a Historic Event, ed. Joseph Y. S. Cheng, 151–83. Hong Kong: City University of Hong Kong Press, 2005.

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Chinese University of Hong Kong, “Survey on Popularity on the HKSAR Government,” Hong Kong Institute of Asia-Pacific Studies, November 28, 2011 (www.cuhk.edu.hk/hkiaps/tellab/pdf/telepress/11/CE_Press_Release_ Nov11.pdf) Civic Exchange, Systems of Political Appointment. Hong Kong: Civic Exchange, 2001. Civic Exchange, Accountability without Democracy: the Principal Officials Accountability System in Hong Kong. Hong Kong: Civic Exchange, 2002. Constitutional Affairs Bureau, Consultation Document on Further Development of the Political Appointment System (2006) (www.cmab.gov. hk/ images/pa_consultation_e.pdf) Constitutional Affairs Bureau, Report on Further Development of the Political Appointment System (2007) (www.cmab.gov.hk/doc/issues/report_en.pdf) Day, Patricia and Klein, Rudolf, Accountabilities: Five Public Services. London: Tavistock, 1987. DeGolyer Michael E., “Demonstrating Failure: How the Accountability System Failed in Less Than a Year,” in The July 1 Protest Rally: Interpreting A Historic Event, ed. Joseph Y. S. Cheng, 221–47. Hong Kong: City University of Hong Kong Press, 2005. Derbyshire, J. Denis and Derbyshire, Ian, Political Systems of the World. United Kingdom: Helicon Publishing, 1996. Fong, Brian C. H., Refining the Political Appointment System (in Chinese), Hong Kong: SynergyNet, 2012. Harris P., Hong Kong: A Study in Bureaucratic Politics, Hong Kong: Macmillan, 1988. Heywood, Andrew, Key Concepts in Politics. New York: St. Martin’s Press, 2000. Heywood, Andrew, Politics, 3rd edition, Houndmills, Basingstoke, Hampshire: Palgrave, 2007. Hong Kong Economic Journal, “Political appointees seen as closely linked with Bauhinia Foundation,” Hong Kong Economic Journal, May 23, 2008, P08.

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Hong Kong Economic Journal, “Alice Tai: The accountability system has made the government short-sighted,” Hong Kong Economic Journal, March 26, 2009, P08. Hong Kong Economic Journal, “Anson Chan: The next administration must review the accountability system,” Hong Kong Economic Journal, July 26, 2011, P11. Hughes, Owen E., Public Management and Administration: An Introduction, 3rd edition, New York: Palgrave, 2003. Information Services Department, Press Release on Framework of Accountability System for Principal Officials, April 17, 2002 (Website: www.info.gov.hk/gia/general/200204/17/0417251.htm) Information Services Department, Legislative Council Question: Appointment of Under Secretaries and Political Assistants to Directors of Bureaux, June 18, 2008 (www.info.gov.hk/gia/general/200806/18/P200806180143.htm) Kwok, Rowena, “From Administrative State to Ministerial System: The Quest for Accountability in Hong Kong,” Commonwealth & Comparative Politics 41(1), March (2003): 101–28. Kwok, Rowena, “How Political Accountability Undermines Public Service Ethics: the Case of Hong Kong,” Journal of Contemporary China 20, No. 70, June (2011): 499–515. Lau Siu-kai, Society and Politics in Hong Kong, Hong Kong: Chinese University Press, 1982. Lau Chi-kuen, Hong Kong’s Colonial Legacy. Hong Kong: Chinese University Press, 1997. Li Pang-kwong, “The Executive,” in Contemporary Hong Kong Politics: Governance in the Post-1997 Era, ed. Lam Wai-man, Percy Luen-tim Lui, Wilson Wong and Ian Holiday, 23–37, Hong Kong: Hong Kong University Press, 2007. Lui, Percy Luen-tim, “The Legislature” in Contemporary Hong Kong Politics: Governance in the Post-1997 Era, ed. Lam Wai-man, Percy Luen-tim Lui, Wilson Wong and Ian Holiday, 39–58, Hong Kong: Hong Kong University Press, 2007.

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Legislative Council Secretariat, Attendance List of the Meeting of Legislative Council Panel on Information Technology and Broadcasting held on November 21, 2011 (http://legco.gov.hk/yr11-12/chinese/panels/itb/alist/ itb1021-alist.pdf) Ma Ngok, Political Development in Hong Kong: State, Political Society and Civil Society. Hong Kong: Hong Kong University Press, 2007. Miners, Norman, The Government and Politics of Hong Kong, 5th edition, Hong Kong: Oxford University Press, 1998. Overholt, William, “Hong Kong: The Perils of Semidemocracy,” Journal of Democracy 12(4), October (2001): 5–18. Ranney, Austin, Governing: An Introduction to Political Science, 8th edition, Upper Saddle River, NJ: Prentice Hall, 2001. Scott, Ian, Public Administration in Hong Kong: Regime Change and Its Impact on the Public Sector. Marshall Cavendish International, 2005. Scott, Ian, “Legitimacy, Governance and Public Policy in Post-Handover Hong Kong,” Asia Pacific Journal of Public Administration, 29(1), June (2007): 29–49. Scott, Ian, The Public Sector in Hong Kong. Hong Kong: Hong Kong University Press, 2010. South China Morning Post, “Beijing backs HK over aides’ citizenship,” South China Morning Post, June 8, 2008, 4. South China Morning Post, “Charter flights urged for Hongkongers stranded in Thailand,” South China Morning Post, December 1, 2008, 4. South China Morning Post, “I took action on taxi blockade, says official,” South China Morning Post, December 8, 2008, 1. SynergyNet, How to Take Governance Reform Forward? Accountability to Whom and How? Hong Kong: SynergyNet, 2002. SynergyNet, The Development and Extension of Political Appointment System. Hong Kong: SynergyNet, 2006. SynergyNet, Review of the Governance Performance of the HKSAR Government 2010. Hong Kong: SynergyNet, 2010.

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Tsang, Yam-kuen, “Strong Governance for the People,” The 2005-06 Policy Address (www.policyaddress.gov.hk/05-06/eng/index.htm) Tung Chee-hwa, “Chief Executive on Principal Officials Accountability System,” Address by Chief Executive at the Legislative Council meeting on the introduction of the Principal Officials Accountability System on July 14, 2002 (www.info.gov.hk/gia/general/200204/17/0417216.htm) Wong Ka-ying, Timothy and Wan Po-san, Shirley, “The Implementation of Principal Officials Accountability System: Efficacy and Impact?” in The July 1 Protest Rally: Interpreting A Historic Event, ed. Joseph Y. S. Cheng, 185–219. Hong Kong: City University of Hong Kong Press, 2005. Wong, Wilson, “The Civil Service” in Contemporary Hong Kong Politics: Governance in the Post-1997 Era, ed. Lam Wai-man, Percy Luen-tim Lui, Wilson Wong and Ian Holiday, 76–95. Hong Kong: Hong Kong University Press, 2007. Woodrow Wilson, “The Study of Administration,” Political Science Quarterly 2(2), June (1887): 197–222.

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4 Participation in the Legislative Council Changes and Challenges Margaret NG

1.

Introduction

The functions and roles of the Legislative Council of Hong Kong (LegCo) are broadly divided into passing legislation, approving government appropriation and expenditure, monitoring public policies and representation. These roles and functions, and the power to carry them out, have changed and developed with Hong Kong’s own historic and constitutional development. In 1993, three years after the promulgation of the Basic Law, and two years after direct election was first introduced, a comparison was drawn between the perception of LegCo members in 1988 and in 1993 as to their most important role and the most difficult task they faced. Interestingly, in 1988, members perceived representation as their foremost role, and preventing the government from adopting harmful policies as the most difficult task. By contrast, in 1993, members perceived their foremost role to be policy formulation, and getting members to agree on the sound policy to adopt to be the most difficult task.1 The constitutional role of LegCo under the Letters Patent was an advisory one in terms. Under Article VII(1), the Governor, “by and with

1 Kathleen Cheek-Milby, A Legislature Comes of Age. Hong Kong’s Search for Influence and Identity. Hong Kong: Oxford University Press, 1995, 225, 227.

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the advice and consent” of LegCo “may make laws for the peace, order and good government of the Colony.” 2 After the handover of sovereignty to the People’s Republic of China (PRC), the Basic Law established a fundamentally different structure of separation of powers within the newly constituted Hong Kong Special Administrative Region (HKSAR). Under Article 2 of the Basic Law, the PRC National People’s Congress (NPC) authorized the HKSAR to exercise a high degree of autonomy and to enjoy executive and legislative power. Under Article 66, the Legislative Council of the HKSAR “shall be the legislature of the Region” and as such enjoy all those powers and functions set out in Article 73 including enacting laws, approving government budgets and monitoring public policies. It is precisely the diversity of interests in the community as represented by the different constituencies that has made it such a complex task for LegCo as a whole to reach agreement on what policy should be adopted. Getting a better deal for one’s electorate by influencing public policy decision-making is the natural and major concern of members elected to LegCo. At the same time the lack of a mechanism to forge reasonable consensus makes this goal hard to reach. The composition and voting procedures fixed by the Basic Law have facilitated divergence more than consensus, as will be discussed below. LegCo functions in the context of Hong Kong’s political situation and the political forces within it. These are dominated by the overwhelming needs and effects of the change of sovereignty: in anticipation of it, to give effect to it, or as a result of it. The form and scope of participation of a member or a group of members in LegCo came to be largely dictated by the political stance the member has taken or is perceived to have taken. Since only the legislature is elected while members of the executive are appointees of the Central People’s Government (CPG) in Beijing, LegCo members are considered on a spectrum of how “pro-Government” they are, and at the same time, that is more or less synonymous with “pro-

2 The wording is adopted from the UK formula of laws being “enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons … .”

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Beijing.” And since Beijing has been reluctant to allow Hong Kong to have democracy, members who actively push for democracy, the “pandemocrats,” are also labeled the “opposition” (反對派) meaning their main objective is to oppose or discredit the HKSAR government and the Beijing authorities. Yet while this may apply where issues of political or constitutional reform or individual rights are concerned, it is another matter on issues concerning livelihood issues. There the alignment is different, and generally according to the constituencies of members and/or the political parties, if any, to which they are affiliated. This chapter does not attempt to undertake anything like a comprehensive analysis of the participation of various groups of members in LegCo. My aim is to focus on certain aspects of the function and role of LegCo that have received less scrutiny, in my view unjustifiably and regrettably. I refer to the performance of LegCo’s legislative function, its role as the watchdog for the rule of law and Hong Kong’s political values, and its own institutional development as an autonomous legislature of the HKSAR under the Basic Law. I have chosen these areas because of my own direct experience, and because I considered them to be LegCo’s unique and most important responsibility. In my 17 years as a member with or without a seat representing the legal profession,3 these were the matters to which I have devoted most of my time and efforts. From the first, the uppermost concern of the legal profession was the safe transition of the rule of law and the protection of the rights and liberties of the people of Hong Kong. What laws would be passed by LegCo and the quality of the laws it passed were crucial. We were most acutely aware of the binding effect of the law and how important it was to ensure that the law we passed would stand up to the test in the Hong Kong courts and in the world. Moreover, it was not just the “black letter law,” but also the underlying principles and values they have to give effect to. This also necessitated the safeguard of the institutions in terms of financial and administrative support, and of proper

3 My “seated” days numbered 16 years; 1995–1997, 1998–2000, 2000–2004, 2004–2008 and 2008–2012. The “unseated” days refers to the year 1997–98 when there was no elected LegCo, and therefore there was no legitimate successor to the pre-1997 LegCo.

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procedures and practice. The quality of the products and the quality of the process through which they came into being were equally important. Participation in LegCo, in my view, should be evaluated against these aims and objectives.4

2. The Business of Legislation — Pre 1997 The legislative program in 1995–97, the last LegCo term before the handover, was dramatically different from anything that came after it. In form, LegCo’s role was advice and consent; in practice, under domestic law and the internal procedure (LegCo’s “Standing Orders”), there were few limits to members’ legislative power. The most important restriction was that, under the Standing Orders, the power to propose a bill or amendment to a bill with charging effect5 was reserved to the Governor, or an official designated by the Governor, and a member may do so only if expressly authorized or permitted by the Governor. Other than that, a member was free to introduce any private member’s bill, which would be dealt with largely the same way as a Government bill. Politically, the colonial government had a legislative program which it was keen to complete before the handover on July 1, 1997. One category was the “localization” of laws, i.e., enacting by Hong Kong legislation

4 The focus of the present studies reflects my own participation in LegCo. I served as Chairman of the Panel on Administration of Justice and Legal Services for 16 years, as Vice-Chairman on the Committee on Rules of Procedure for thirteen years, and member of the Legislative Council Commission for eleven years. From 1998 to 2012, I participated in 221 Bills Committees and subcommittees on subsidiary legislations, and served as Chairman in 74 of them: See Margaret Ng: Final Submissions, LegCo Report 2011–2012. I did not keep full statistics for the 1995– 1997 term. 5 Rule 45(6) of the 1995 Standing Order provides: “An amendment, the object or effect of which may, in the opinion of the Chairman, be to dispose of or charge any part of the revenue or other public moneys of Hong Kong shall be proposed only by — (a) the Governor; (b) a public officer designated by the Governor … (c) a Member of the Council expressly authorized or permitted by the Governor to make such a proposal.” This is in substance preserved in Rule 57(6) of LegCo’s Rules of Procedure after 1997.

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certain English statutes which would cease to have effect after the handover, or rules of the common law not completely set down in statute but which were so fundamental that their continued application must be beyond question. One example was habeas corpus, the ancient protection of personal freedom from arbitrary executive detention.6 Another category was legislating in advance for the SAR matters which were agreed in the Sino-British Joint Liaison Group (JLG). The most important example in this category in the LegCo term preceding 1995–97 was the Ordinance establishing the Court of Final Appeal. Another important example, in the 1995–97 term, was the Official Secrets (Amendment) Ordinance. Under the much feared Article 23 of the Basic Law, Hong Kong was to enact law on its own to prohibit, among other things, “theft of state secrets.” The great concern of the Hong Kong public was that if given the kind of wide scope it had under the PRC, this would result in extensive state power to interfere with the freedom of information and could be used as an instrument of oppression. The compromise reached in the JLG was that the then extant official Secrets Ordinance (which was modeled on the oppressive UK Official Secrets Act) should be amended by a measure of liberalization, and would be accepted by Beijing as fulfilling the relevant provision of Article 23. But even in this category LegCo was by no means a “rubber stamp” of whatever the Government proposed. For example, proposals in a bill which attempted to create the crimes of “secession” and “subversion” in relatively liberal terms in order to forestall more draconian legislation after 1997, was ultimately rejected by the democrats who at an earlier stage had agreed to the move. What caused a change of mind were the submissions made to the bills committee by the Hong Kong Bar Association to the effect that the pre-1997 enactment may not achieve the intended safeguard post-1997, while unnecessarily subjecting people of Hong Kong to new offences with serious penalties in the meantime. The Governor, Chris Patten, not unreasonably, felt let down by the democrats.

6 The writ of habeas corpus is now to be found in Order 54 of the Rules of the High Court, Cap.  4, the Laws of Hong Kong.

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Yet another category was long overdue legislation to give effect to important public policies or law reforms, as well as miscellaneous tidying up of the law which nevertheless could not be left unattended. Among these were changes identified as necessary as a result of the review on compliance with the Hong Kong Bill of Rights enacted in 1991. There were other matters regarding which the Government was not prepared to initiate but was to stand aside for members to tackle under private member’s bills. The most famous of these private member’s bills was undoubtedly the Protection of the Harbour Bill, which escaped repeal by the post-handover Provisional Legislative Council and survived to achieve notable results. Almost equally famous were the protection of labor rights bills which though they did not escape repeal, cast long shadow to haunt LegCo after elections were restored in July 1998. Thus the 1995–97 term was an extremely active period for legislation. However, even then the actual business of intensive scrutiny of a bill, which took place in the bills committees, fell on the shoulders of a relatively small number of members.7 This was where the Government officials of the department sponsoring the bill met members in committee, explained the justification, aim and effect of the bill, following which the contents of the bill, especially the areas of likely or actual controversy, or where it touched upon matters of standing legal principles were discussed, debated and clarified, and finally, the language or drafting of the bill was considered.

7 LegCo was criticized for the small proportion of members actively participating in bills committees by the Catholic Monitors on Legislative Councillors 立法會議員天主教監察組 (“the Monitors”), a group which has been publishing detailed analysis on the performance of LegCo members annually since 1999. These annual reports are a rich source of materials on LegCo, although the focus is more on motion debates on policy issues, question and answer in Council meetings, and participation in policy panels, with less attention on the legislative process, statistics on participation in bills committees are included and commented upon. See for example, the section on Bills Committees in the 1998–99 report. In that session, 42 bills committees were formed. The Monitors noted that 42 members participated in less than eight of them, commended certain members for the level of their participation, while naming those who participated in less than four bills committees for criticism: see pp. 49–50 of the 1998–1999 report. Figures cannot by themselves reflect the full picture, especially in later years when many members attended the meetings only briefly without really taking part in the deliberations.

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In the process of scrutiny, public consultation was occasionally made, particularly with people or organizations either with special knowledge in the field, for example, the Bar Association or Law Society, or the most directly affected sectors of society. The purpose was to assist members to understand the practical consequence of the bill if passed. It was not then the kind of general public consultation that developed in later years. This was, in my view, as it should be, because the idea of due process requires a government to have already carried out public consultation and secured adequate general consensus on the policy change before proceeding to the legislative stage. The observation of this principle was vital to fair and efficient legislation. Ideally, a member who was concerned in a policy should follow it through, first in the appropriate policy panel of LegCo, where the policy proposal with its main features was made by the administration to seek members’ views and gauge their concern and support. If members of the panel saw fit, public hearings could be held, as a result of which members might advise the Government to modify, expedite or withdraw the proposal. I believed that for the exercise to carry weight, officials should respect and genuinely try to accommodate members’ views, while members should not alter their positions without reason or notice to allow for further consultation given the accommodation. However, the reality was that members were liable to change their minds, and the longer drawn-out the process, the greater the danger of an agreement falling apart. At one stage, Martin Lee QC, then Chairman of the Democratic Party, proposed in the House Committee a protocol whereby no bill was to be introduced without the proposal having been discussed in the relevant panel. On the other hand, members would stand by the support they gave in a policy panel if their views were reflected in the bill eventually introduced. Regrettably, only the first half was maintained, and even then sometimes only as a formality. Most members were not prepared to tie their hands, and as the years went by, it became increasingly unrealistic. The result was that scrutiny and deliberations in the bills committee became more and more undisciplined and protracted, with detriment to the quality of

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the legislation,8 but that deterioration was yet to come. In the 1995–97 term, in my experience, the legislative process was serious and members’ participation and contribution were meaningful. One area which could best illustrate this participation was amendments to bills introduced by members. A number of desirable changes would normally have been raised by members in the course of discussion of the bill. Some of these would be accepted by the Government, who would then put its draft amendments before members for further discussion, resulting in amendments which were passed unopposed. Where changes were supported by a majority of members but not accepted by the Government, the amendment would be drafted by the legal advisers to the bills committee and formally proposed by the Chairman of the bills committee. Such decisions of the bills committee were generally respected by other members, and the amendments had a good chance of being passed in LegCo. Then there were amendments proposed by individual members which for one reason or another had not secured majority support in the bills committee. It would then be the member’s own responsibility to draft the amendment in proper form and to canvass for support. These amendments were rare, and rarely succeeded, but they provided the occasion for debate and for views to be put on record.

3. The Situation Changed Dramatically after 1997 3.1 The Business of Legislation Post-1997 Due to the breakdown of Sino-British agreement over the development of LegCo immediately before 1997, the continuity of LegCo into the SAR

8 The practice adopted by LegCo is that before a bill can be introduced, the new policy it underpins and the main features of the bill must first be brought up for discussion in a policy panel. Once a bill is introduced, the matter is dealt within the bills committee. However, increasingly in recent years LegCo did not take the discussion in the policy panel seriously, but only after the bill had already been introduced. The meetings in the bills committee were then used (in my view, in abuse of procedure) to debate, bargain and lobby on the policy and its perspective implementation. These resulted in greatly prolonging the process of scrutiny.

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(“the through train”) was disrupted.9 In December 1996, a “Provisional Legislative Council” — not provided for in the Basic Law — was appointed in Shenzhen to pass laws straddling 1997, and was decreed to function until the first elected LegCo was to be constituted under the Basic Law. The saga of the constitutionality, legality and legitimacy of the “Provisional LegCo,” the laws passed, repealed or amended by it, and the process adopted to do so, merit a separate study, and will not be entered into in the present paper.10 However, certain statutes it passed and that were given effect to had far-reaching consequences for later legislation. The most notable among them was the Reunification Ordinance which amended the Interpretation and General Clauses Ordinance, Cap.  1 of the Laws of Hong Kong, as I shall more fully discuss below. The legislative program of the post-1997 elected LegCo may be discussed under five main features which reflected the transfer of sovereignty; namely, the extensive adaptation of laws program; the protection of rights and freedoms against the power of the State; the special relationship between the SAR and the CPG; the maintenance of the systems of Hong Kong; and the limitation of legislative power under Article 74. A. Adaptation The SAR Government embarked on an extensive “adaptation of laws” program to review all existing statutes to weed out terms, expressions and references which were incompatible with Hong Kong’s new constitutional status and replace them with compatible ones. An example of the most straightforward and mechanical kind is substituting references to “Governor” with “Chief Executive,” but not all substitutions were of

9 Paragraph 6, Decision of the NPC on the Method for the Formation of the First Government and the First Legislative Council of the HKSAR. 10 The extraordinary circumstances in which the important question of the legality and constitutionality of the Provisional LegCo was decided by a sidewind can be gathered from the judgment of the Court of Appeal in HKSAR v Ma Wai Kwan, David & Others [1997] HKLRD 761.

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such a mechanical nature. LegCo’s role in scrutiny was to ensure that the substance of the law was not changed inadvertently in the course of adaptation. Where grey areas arose, the administration’s policy was to withdraw the proposed substitution concerned and remove it to be dealt with in a future amendment of law exercise in the future. However, not all attempts at adaptation of laws were plain sailing. The most controversial in my experience was the last I participated in, namely the 2010 Adaptation of Laws (Military References) Bill which was finally passed on February 8, 2012 despite the opposition of pan-democrat members. Up to the end of the 2008–12 term, a total of 60 Adaptation of Laws bills were passed, 17 of them after scrutiny in bills committees, two lapsed at the end of the 1998–2000 LegCo term. The exercise is not yet complete. Some statutes are as yet untouched by adaptation, while some statutes are partly “adapted” but still pock-marked with colonial expressions such as references to “Her Majesty the Queen.” This hardly contributes to the dignity of the law. In my opinion, the HKSAR government took the wrong approach in its anxiety to be seen to embrace the transfer of sovereignty. The task of adaptation in fact ranged from the unnecessary to the impossible, with little in between (the grey areas). It was unnecessary to pass specific laws for the mechanical changes which are obvious, since the Reunification Ordinance passed by the Provisional LegCo had already amended Cap.  1 by adding a section 2A and a Schedule 8 entitled “construction on and after July 1, 1997 of words and expressions in laws previously in force.” For example, Paragraph 11 of Schedule 8 states that “any reference to the Governor of Hong Kong or to the Governor in Council shall be construed as a reference to the Chief Executive of the HKSAR or the Chief Executive in Council respectively.” The task was impossible when the “adaptation” concerns legal concepts which were implicit on the common law system under the British constitution but alien to the Chinese constitutional system. Such matters required careful thinking and development in the light of actual experience. The ruthless wholesale transplant affected by the Reunification Ordinance would and did result in serious assaults on Hong Kong’s legal system and undermine the rule of law.

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A major problem which seriously troubled LegCo for many years is the substitution of “the crown” with “the State” in section 66 of Cap.  1. Originally, this section stated that no Ordinance shall be binding on “the crown” unless it is expressly provided in the Ordinance or by necessary implication. Following the Reunification, “the crown” was amended to read “the State” (“國家”). At the same time, a new definition of “State” is added to section 3 of Cap. 1.11 The question arose whether offices set up in Hong Kong by the CPG were bound by Hong Kong statutes and it was apparently not. Yet according to Article 22 of the Basic Law, such offices and their personnel shall abide by the laws of the SAR. The SAR Government’s answer to this puzzle raised by LegCo members was that there was no anomaly. Article 22 requires such offices set up in Hong Kong and their personnel to abide by the laws of Hong Kong, Cap. 1 was a law of Hong Kong. Section 66 of Cap. 1 provided that they are not bound by Hong Kong law. So it followed that by obeying Hong Kong laws they were exempt from obeying them! This answer was obviously unacceptable to pan-democrat members. If the Government’s argument was valid, then this would create a huge gap in the rule of law precisely where people of Hong Kong are most worried.12 This concern was never properly addressed by the Government in spite of sustained queries by LegCo. Nor was a decent explanation ever given.

11 The “crown” was never defined. Under s.3 of Cap. 1, “State” is defined to include: (a) the President of the PRC; (b) the Central People’s Government (CPG); (c) the HKSAR Government; (d) Central Authorities of the PRC that exercise functions for which CPG has responsibility under the Basic Law; (e) subordinate organs of CPG that (i) on its behalf, exercise executive functions of the CPG or functions for which the CPG has responsibility under the Basic Law; and (ii) do not exercise commercial functions, when acting within the scope of the delegated authority and the delegated functions; and (f) subordinate organs of the CPG referred to in (d), that (i) on behalf of those Central Authorities, exercise executive functions of the CPG or functions for which the CPG has responsibility under the Basic Law; and (ii) do not exercise commercial functions, when acting within the scope of the delegated authority and delegated functions. 12 One real life example is the question whether the China Liaison Office is bound by the Privacy Ordinance, for instance, with respect to gathering, using and disclosing personal data. The Government refused to give an answer for a long time, and finally conceded that it was not bound.

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The unspoken taboo, in my opinion, had to do with CPG’s sensitivity about the issue of sovereignty: China must enjoy full sovereignty over Hong Kong as was enjoyed by the U.K. without any diminishment. Whatever was enjoyed as crown immunity must automatically be preserved as state immunity. This was treated as a matter of principle regardless of practical consequence. The doctrine of crown immunity has always been elusive in England itself, and much criticized as incompatible with the rule of law. In modern times, the efficacy of the doctrine had been whittled away by decisions of the English courts and by the Parliament with the enactment of the Crown Proceedings Act. The Hong Kong equivalent is the (as yet unadapted) Crown Proceedings Ordinance. The application of the doctrine of crown immunity, if any, in the U.K. itself was extremely limited by 1997. As far as Hong Kong was concerned, instances of the application of the doctrine were even more limited as a matter of fact because of the limited activities of the UK Government in Hong Kong. However, given the political system of China, where state entities were all-pervasive, and the much closer links between the mainland and Hong Kong, applying the full force of the English doctrine of crown immunity would produce legal and practical consequences inconsistent with the spirit of the Basic Law. The better approach would be to take as starting point the meaning of “the crown” in Cap. 1 itself. As was explained to LegCo at one stage by a law officer, the “crown” was used to refer to the crown in right of the Hong Kong Government, or the crown in right of British Government as may be ascertained from the context. After Reunification, the crown as referred to the Hong Kong Government would now refer to the SAR Government, and adaptation is thus straightforward. Immunity from Ordinances should be reviewed and preserved or amended by internal process of the SAR. The crown as referring to the British Government should become obsolete, and the old immunity should be fundamentally reviewed according to the Basic Law on a case by case basis, and this cannot be done by means of crude adaptation. One could see why the HKSAR Government would find such a program unattractive. It would involve difficult and protracted negotiations with CPG with uncertain results. Further, even assuming the Government

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was prepared to do so, there was little confidence that there would be sufficient support from LegCo. Politically, once the issue was simplified as sovereignty versus autonomy, the outcome of the debate was a foregone conclusion. But, in my view, the more fatal factor was that few members were interested in spending time on getting to grips with complex legal issues. A strong minority voice in LegCo would have at least given these fundamental issues a better chance of being properly understood by the community. The anomalies of the crude transplant of the doctrine of crown immunity by means of an “adaptation” surfaced years later in the case of the Hua Tian Long (華天龍). In that case, an action was brought against the owners of the Hua Tian Long, the largest floating derrick cranebarge, for breaching of contract for failure to make available the vessel to the plaintiffs. The Court of First Instance held that the defendant, the Guangzhou Salvage Bureau, as an entity of the CPG, enjoyed “crown immunity” and therefore was immune from suit.13 The legal community was shocked by this judgment. The Court of Appeal was concerned enough to invite the parties to appeal on this issue. Unfortunately, the parties decided to settle in the end, and the superior courts never had the opportunity to give guidance on this vital issue. The adaptation of law exercise dragged on in LegCo. The last (but not final) episode was the 2010 Adaptation of Laws (Military References) Bill which involved the replacement or deletion of references to the British forces (e.g., “Her Majesty’s Forces”) and references related to them in some eighty-five Hong Kong statutes. The amendments were legally complex and politically sensitive. Unfortunately, but not unexpectedly, the political sensitivity virtually prevented the legal complexities from being properly dealt with or even understood. It was a futile exercise to argue that the bill was not only a monumental waste of time (since there was no question in law as to the status of the People’s Liberation Army garrison in the SAR) but would do positive harm to the integrity and dignity of the law by

13 The Hua Tian Long (No.2) [2010] 3 HKLRD 611.

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introducing all kinds of anomalies into it. The bill was passed on February 8, 2012 with strong opposition from a small minority of members but little notice otherwise, within or outside LegCo.14 B. Protection of Rights and Freedoms — Article 23 A fundamental change of post-1997 legislation is that laws passed by LegCo have effect only if they are consistent with the provisions of the Basic Law. This requirement became a major consideration in LegCo’s scrutiny of legislation proposed by the Government. Giving effect to the Sino-British Joint Declaration, the rights and freedoms of Hong Kong inhabitants, including those they enjoyed under international covenants on human rights, were enshrined in the Basic Law. However, in the wake of the June 4 incident of 1989, Article 23 was drafted into the Basic Law to require the Hong Kong SAR “to enact laws on its own” to prohibit seven kinds of acts against the CPG including treason, secession, sedition, subversion and theft of state secrets, to prohibit the activities of foreign political organizations in the SAR, and establishing ties between them and local political organizations. The battle in September 2002 to July 2003 over the SAR Government’s introduction of Article 23 legislation into Hong Kong was one of the most dramatic events in the history of LegCo. The essential facts can be briefly stated. The SAR government was evasive about the timing of introducing Article 23 legislation until September 2002, when a consultation document was issued at short notice. Opposition gathered momentum as the proposals became more widely known. Fudging the results of the public consultation, the Government announced it would press ahead with legislation. The 2003 National Security (Legislative Provisions) Bill was introduced in February 2003. A bills committee was formed to scrutinize the bill, for which 49 members signed up, and Ip Kwok Him of the Democratic Alliance for the Betterment of Hong Kong (DAB) was elected chair. Numerous meetings were

14 Official Report of the Legislative Council (“Hong Kong Hansard”) of February 8, 2012, 3737– 75 (Chinese); 5342–93 (English).

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compressed into a short period. The Secretary for Security, Mrs Regina Ip, supported by the Secretary for Justice, Ms Elsie Leung, took an aggressive stance in dealing with members’ opposition and voices of opposition in the community. The Government was adamant in getting the bill passed by July 2003, and did not back down even after over half-a-million people took to the streets in a march on July 1. Chief Executive Tung Chee Hua changed his mind only at the last moment, after the resignation of James Tien, leader of the Liberal Party, from the Executive Committee, leaving majority support in LegCo for the bill in doubt. On July 9, when debate on the bill was due to resume, notification of the debate was withdrawn. On September 5, 2003, the Government finally announced that the bill was withdrawn, and further consultation on Article 23 would be made at a future date. The justification for the legislation was basically twofold, repeated over and over again: that it was the SAR’s duty under the Basic Law, and that the legislation proposed was not less liberal than in other democratic states. As opposed to that, the argument was always concrete and specific: that the timing was wrong, that the provisions of the proposed legislation violated fundamental rights, that due procedure was not followed. As I pointed out in my speech in the LegCo motion debate on December 11, 2002: “The offences in the proposals are not, as represented by government officials, confined to acts and activities aimed at overthrowing the Central Peoples Government by violence or terrorist-style sabotage, or joining force with a foreign power to levy war against the Chinese state. They extend to speech, to association and hence religious affiliation, to peaceful assembly, to the pursuit and dissemination of ideas, the disclosure of information, the normal operation of a free press, and above all, to the expression and organization of legitimate opposition recognized in every free society. …” We must not turn a blind eye to the real effect of the proposals. The aim of protecting national security is not protecting China

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against foreign invasion or internal insurrection. They are to protect the Government against any opposition, actual or potential, from developing or being given expression. It is not Article 23 as promulgated which is being implemented, but the political directive of a Central People’s Government shaken by the June 4 incident, that Hong Kong must not be used as a base for supporting subversive activities. Indeed paragraph 5.6 of the Consultation Document openly acknowledges this. Herein lie the offences likely to affect our lives most directly: subversion, together with sedition and theft of state secrets. As paragraph 5.6 makes clear, subversion is to be dealt with by creating a new offence of subversion, and by the proscription mechanism to which I have just referred. The offence of subversion is unknown to the common law. As defined, it can be committed not only by using violence, but also by the undefined “threat of violence” or the vaguely defined “serious unlawful means” which can extend to speech and peaceful assembly or organized expression of legitimate opposition without violence or sabotage. Using any of these means to “intimidate the PRC Government” or to “disestablish the basic system of the state as established by the Constitution” constitute subversion. Inciting others to commit subversion is sedition. Thus publishing articles to encourage others to hold or join mass rallies or hunger strikes to express discontent with the PRC Government and to put pressure on it to adopt a more democratic system of government free from corruption, amount to subversion. Just to illustrate, the 1989 Student Movement for Democracy in Beijing would fall within the definition of subversion. As proposed, a Hong Kong permanent resident can commit subversion by his acts within or outside Hong Kong. So fundraising or demonstration in Hong Kong in support of the students amounts to subversion, and any person of Hong Kong

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going to Beijing to give assistance to the students or to join their demonstration, commits subversion. If the groups organizing the movement in Beijing were proscribed by the Central People’s Government as threatening national security, then every Hong Kong organization affiliated with them would be exposed to proscription by the Secretary for Security. The police will have the power to investigate sympathizers to see if they are members of such organizations, or, if they have traveled to the mainland, to see whether they have done anything which can amount to acts of subversion including inciting, aiding and abetting, counseling or procuring, or conspiring with other to commit subversion.15 ” These views were not peculiar to me. Similar concerns were expressed by the legal profession and many other organizations that made representations in LegCo hearings and in many public forums. Between the publication of the consultation document and the motion debate, 13 meetings were held by the LegCo Panel on Administration of Justice and Legal Services jointly with the Panel on Security, to which a total of 112 organizations made written and oral submissions. One of the most widely supported demands was for the Government to publish a “white bill,” i.e., a draft bill for the purpose of consultation. In contrast to the official bill (published on blue paper), it would allow the public to see the precise language of the proposed legislation while at the same time allowing maximum flexibility for modification in the light of views received. However, the Government rejected this. Instead, the official “blue bill” was gazetted and introduced into LegCo on February 26, 2003. A bills committee was set up and held its first meeting on March 25, 2003. The debate in the bills committee was intense. Within the threemonth period of its existence, it held 25 meetings totaling 63 hours and

15 Official Report of the Legislative Council (“Hong Kong Hansard”), December 11, 2002, 1988– 92.

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considered 117 papers and 194 submissions. The split between the progovernment and pan-democrat members was irreconcilable. The progovernment majority voted for the second reading debate in LegCo to be resumed without the usual step of hearing members’ proposed amendments. In the event, the Government proposed 51 (largely technical) amendments, and the pan-democrats among themselves proposed over 100 amendments. Of course, as the second reading debate never took place, all of the amendments, together with the controversial bill, were consigned to the dusty shelves of history. Shortly afterwards, Regina Ip resigned. In the District Council election in November, Ip Kwok Him lost his “safe” seat. A year later, Chief Executive Tung Chee-hwa stepped down for “health” reasons. There were serious lessons for all sides. For the pan-democrats, this was a rare, if not unique victory,16 which came at the eleventh hour almost as a miracle. It was possible only because of the huge upsurge of public opinion bravely and strongly expressed and the unsparing effort of all sectors: press, academics, the legal profession and the vast Hong Kong middle class, because the issues hit a raw nerve of the community: their freedom of expression and freedom from fear of the oppression of the State which were so vital a part of Hong Kong’s way of life. The Government has since maintained that it was not the issue of Article 23 legislation alone but a combination of factors that turned the tide, chief of which was the SARS epidemic. Be that as it may, the single most important lesson about LegCo’s legislative function was how brittle was its power to protect the fundamental rights of Hong Kong people. That power lies not so much in constitutional safeguards as in the ability of pan-democrats to rouse the public to action.

16 The Government’s temporary postponement and eventual withdrawal of its bill in 2011 to introduce, without prior public consultation, a “Replacement Mechanism” and abolish byelections triggered by resignation, death or disqualification, can be said to be another instance. In that case, the democrat members of the bills committee walked out. Weeks later, on July 1, 218,000 people marched. However, public consultation was subsequently held, and a substantially modified version of the bill was passed.

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The protection of existing freedoms from being taken away was difficult enough; the advancement of political rights promised by the Basic Law had recorded no positive achievement. Articles 45 and 68 held out the possibility of progress towards universal suffrage. Procedurally, this involved local legislation and amending Annex I and Annex II of the Basic Law where the method of electing the Chief Executive or the method of forming LegCo was concerned. It was indisputable that certain moves enlarging democratic participation and reducing existing unfairness (particularly because of the narrow franchise of functional constituencies) are achievable by means of local legislation. Yet no moves were made by the Government, and none could be made by members with any hope of success, as I shall explain below.

C. Limitation of Legislative Power — Article 74 Although the Basic Law confers upon LegCo constitutional status as “the legislature” of the SAR, the scope of members’ participation was in fact significantly curtailed first of all by Article 74 which restricts the scope of private member’s bills, and secondly, by raising the threshold of any motions, bills, or amendments introduced by members being passed. Article 74 states as follows: “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. Bills which do not relate to public expenditure of political structure or the operation of the government may be introduced individually or jointly by members of the Council. The written consent of the Chief Executive shall be required before bills relating to government policies are introduced.” The restriction on bills that may have a charging effect on the revenue was previously a matter of self-restraint for LegCo under its Standing Orders. The absolute prohibition of bills relating to the “political structure or the operation of the government” introduced a wide area of uncertain

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meaning which did not exist before. The new restriction against bills relating to Government policies without the written consent of the Chief Executive would preclude private members’ bills such as the Protection of the Harbor Bill and the labor rights bills which were passed in the 1995–97 LegCo term, as well as the anti-discrimination bill in the 1991– 95 term. Although the anti-discrimination bill was defeated in LegCo, the wide public debate it provoked led to the Government introducing a series of anti-discrimination legislations and the establishment of the Equal Opportunity Commission in 1996. The split voting system stated in Section II of Annex II of the Basic Law raised the threshold for a motion, bill or amendment introduced by a member to be passed. While a Government bill required only a simple majority vote of members to be passed, approval of a member’s motion, bill or amendment required a majority vote of each of the two groups of members present: i.e., members returned by functional constituencies as one group, and members returned by geographical constituencies through direct elections and by the Election Committee.17 Under the split voting system, a member’s motion, bill or amendment could be defeated by a handful of members who opposed or simply abstained from voting while being present. Indeed, there were numerous instances of such defeats even though the motion, bill or amendment had the support of the majority present in terms of absolute numbers.18 The end result was that members’ participation in the business of legislation was largely confined to the amendment of Government bills. But even here the Government took the view that the same restrictions to “bills” under Article 74 applied to amendments to bills introduced by the Government. This view was put to LegCo’s Committee on Rules of Procedure by officials but was rejected by the Committee after taking legal

17 Article II of Annex II of the Basic Law. 18 In its reports, the Catholic Monitors on Legislative Council has relentlessly highlighted the unfairness of the split-voting system by setting out the instances of motions or amendments which had a majority of members supporting and were defeated only because of the splitvoting.

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advice from Senior Counsel, and the decision was reflected in LegCo’s Rules of Procedure. Since Rules of Procedure were made by LegCo, the Government could do nothing to prohibit members from introducing amendments subject only to the requirements of relevance and no charging effect. However, the Government adopted an unspoken policy of blocking every member’s amendment from being passed as a matter of principle unless the Government’s approval was obtained first. The operation of this policy was dramatically demonstrated at the Committee Stage of the Interception of Communication and Surveillance Bill (“the Spy Bill” for short) belatedly introduced by the Government in February 2006 to plug the loophole that permitted Government’s telephone tapping without legal authority in breach of Article 30 of the Basic Law, following the ruling of the Court of Final Appeal. Under the Court’s order, the Government had until August 8, 2006 for legislation to be passed.19 Consequently, the bill was a rushed job, fraught with breaches of legal and constitutional principles and all kinds of errors, as shown up in the intensive scrutiny in the bills committee. Fundamental rights were concerned. To me, the most appalling crime was the incursion into judicial independence. Numerous and major amendments were necessary, but what the legislation really needed was an overhaul. Since the Government obviously needed legal authority to carry out surveillance necessary to Hong Kong’s internal security and the prevention of crime, the bill amended as best we could should have been be passed, but with a “sunset clause” to ensure an early review. Unfortunately, although some of the amendments were agreed and adopted by the Government, the most essential ones were not. Last ditch negotiations failed. There was only a period of days for members to file and give notice of amendments. The ruling of the LegCo President was required for an amendment to be moved. The record shows that I proposed 120 amendments (12 ruled out by the President); James To proposed 80 (11 ruled out); Lee Wing Tat proposed

19 See the judgment of the Court of Final Appeal given on July 12, 2006 reported in Koo Sze Yiu & Another v Chief Executive of the HKSAR (2006) 9 HKCFAR 441.

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one; Cheung Man Kwong proposed one; Albert Ho proposed eight. Every single one of these amendments was defeated. All of the Government’s 189 amendments were carried. The debate lasted 58 hours. The pan-democrats walked out at 2:00 a.m. on Sunday August 6, 2006 after the sunset clause was defeated. A few minutes later, the bill was passed by 32 votes (the quorum was 30) with none against. It was gazetted on August 9, 2006, and came into immediate effect.20 During the debate, pan-democrats were accused of aiding thieves and undermining law and order with their amendments, of filibustering and obstructing the bill from being passed just to embarrass the Government. Lau Kong Wah, a member of DAB, memorably said in his speech: “I was asked by the media what would happen if the legislation was enacted, or what would happen if those amendments were endorsed. I replied that there would be big trouble once they were endorsed. So, over these past 30 days or so, disregarding whether we were said to be the royalist camp or a force supporting the Government and law and order in Hong Kong, we maintained our stance firmly, not budging an inch and not allowing one single amendment to get passed. Our purpose was to stop the opposition camp from doing anything to disrupt law and order.” 21 Such an attitude was typical of the pro-Government members on whom the Government relied to achieve its purpose. Consequently, conscientious hard work in opposition was totally discouraged. Speaking for myself, the only sustaining forces I could fall back on were a sense of inescapable duty and the support of a dedicated sector of the public.

20 Summarized in my newsletter dated August 9, 2006. 21 Official Report of the Legislative Council (“Hong Kong Hansard”), August 5, 2006, 11269.

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D. Bread-and-Butter Matters of Governance The bulk of legislative work reflected the bread-and-butter matters of governance and public administration in the SAR. Some of the work was routine up-dates and corrections, such as the recurrent Statute Law (Miscellaneous Provisions) Bills 1999, 2001, 2005, 2007, 2008, 2012 each of which gather together non-controversial amendments to various statutes. But some were desirable system overhauls, such as the Securities and Futures Bill of 2000. How well the work was done was a mirror of the competence and effectiveness of LegCo and Government, and the quality and professionalism of the civil service in support. The deterioration that was obvious to anyone who had been closely involved reflected the gradual onset of dysfunction of Government and LegCo, and increasing disquiet in the community. I shall use as main illustration the Securities and Futures Bill already mentioned, the Competition Bill and the Land Titles Bill. The Securities and Futures Bill was introduced into LegCo in November 2000, together with the Banking (Amendment) Bill. This sought to introduce a modern and comprehensive regulatory framework replacing the old regime which was made up of ten different ordinances. The policy objective, as stated by the Government, was to bring Hong Kong’s regulatory regime on par with international standards and to maintain Hong Kong’s competitiveness as a major international financial center. The bill was wide in scope and complex in its structure and provisions. It obviously affected the interests of the financial industry, local and international, as well as corporate and individual investors. The Government took the precaution of consultation by first publishing a white bill in April 2000 for consultation. A report was made to LegCo’s Panel on Financial Services in June 2000 to canvass members’ views, before the blue bill was finalized, gazetted and introduced into LegCo. A bills committee was formed in December 2000 to vet the bill, which contained several hundred clauses. Members accepted that early enactment was important but at the same time the quality of scrutiny could not be compromised. In all, the committee held 55 meetings, received 48 oral and written

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representations from 21 individuals and organizations over a period of 14 months, during which an overseas visit was made to study regulatory authorities in the U.S. and in the U.K.22 The bill was passed in LegCo on March 13, 2002. In terms of timing, LegCo took about as much time over the process as the UK Parliament did over its Financial Services Act. In terms of quality of the deliberations and vetting, it was generally agreed that the job was well done although not without flaws and criticisms. The legislative process of the Securities and Futures Bill can be said to illustrate LegCo’s strength and demonstrated its ability to tackle complex legislation which concerned the heart of Hong Kong’s business as a modern and sophisticated international city. There was no lack of sensitive and controversial issues and conflicting interests. For example, between local brokers and international brokerage firms, between de-regulation and investor protection, between the extent of the jurisdictions of the Securities and Futures Commission (which regulates securities and futures activities) and the Hong Kong Monetary Authority (which regulates banks) respectively. There was also an important dimension of the rule of law; in particular, whether the power conferred on the SFC was excessive and without appropriate checks and balances; whether, on the other hand, there was adequate safeguarding of the SFC’s autonomy from Government interference. The 14 members of the bills committee represented different political parties and the interests of different sectors. For example, of the two members of the Financial Services Functional Constituency, one was from the banking sector while the other fought to protect the interests of local brokers under the status quo. Both the democrats and the pro-government members supported the bill in principle but had different concerns. But none of these differences prevented the bills committee from working together, in my recollection, and in fact the diversity enriched the debate and deliberations in the bills committee and made its work meaningful.

22 Report of the Bills Committee on the Securities and Futures Bill and Banking (Amendment) Bill 2000, March 13, 2002 [CB(1)1217/01-02].

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The reasons for this example of success of LegCo early in the history of the SAR were several. First, the difference in political conviction or affiliation and interests they represented did not prevent members from treating each other with respect. Secondly, there was still a strong awareness of institutional identity and collective responsibility as members of legislature, and this regulated members’ conduct. Most of the 14 members of the bills committee were experienced legislators well versed in parliamentary procedure and the principles to which they gave effect. They were assisted and reinforced by an experienced secretariat with high standards of professionalism who provided the secretarial and administrative support. Thirdly, the bills committee, on a personal as well as institutional level, enjoyed the respect and co-operation of the government officials responsible for the bill, who were themselves knowledgeable and had high standards of professionalism. It might be noted that the bill’s passage pre-dated the introduction of the politically appointed accountability system. The Deputy Secretary for Financial Services, the civil servant who was responsible for the bill, was not an expert in securities and futures dealing or regulations by any means, but she was flanked by experts of the SFC, and intensive work under constant challenge of legislators soon turned her into something of an expert. Last but not least, at that stage, there was still a large measure of common values and a common goal between the executive and the legislature, which had to do with Hong Kong’s best interests. In that spirit, members and officials developed techniques of reaching consensus on main points without allowing progress to be bogged down by disagreements on side issues which could be relegated to future subcommittees, provided trust was maintained.23 Sadly, this was soon to deteriorate. It is important to point out that the legislative process of the Securities and Futures Bill was not without flaw. For example, it was accepted by all parties that leaving too many amendments too late was not conducive

23 “Hong Kong Economic Journal Daily,” March 11, 2013, A12; March 12, 2013, A09; March 13, 2013, A08; March 14, 2013, A10; April 18, 2013, A06.

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to good drafting. What was significant was that criticism and even opposition on a point of fundamental principle could be expressed frankly and without discourtesy, and received with respect and equanimity. Unfortunately, this was a virtue LegCo and Government were soon to lose. The Competition Bill, introduced into LegCo on July 14, 2010, was comparable to the Securities and Futures Bill in many ways. Its purpose was to bring Hong Kong into line with international practice against anticompetitive conduct. It introduced a new regulatory regime and established the Competition Commission. It was economic in character, affected big economic interests, and was complex and controversial, but it was by no means a Hong Kong innovation. Competition legislation has long existed in the U.S., the U.K. and Europe. Measures against anti-competition conduct in specific industries already existed in Hong Kong’s statutes. What the bill sought to introduce was an overall scheme against anti-competition conduct and practices in all business enterprises. The need to introduce overall anti-competition regulation had been raised in LegCo a few times for over ten years, and the Government had backed down in the face of opposition from the business sector, until it finally resolved to go ahead with legislation in 2010. To reduce resistance, the legislation proposed was of a moderate form compared with the U.K. or the U.S. The pan-democrats were the core supporters. The Government believed that together with the pro-government majority in LegCo the bill would be passed although not without objections from the business lobby. The Government’s assessment turned out to be wide of the mark. Matters took a completely different course, and the Government came close to losing control of the process. A total of 34 members (over 50% of LegCo) joined the bills committee, which split into two extreme camps for and against. Thirty-eight meetings were held from October 2010 to May 2012. Numerous public hearings were held, in which 351 individuals and groups made representations in writing or orally in person, many repeatedly and aggressively accusing some members who supported legislation as motivated by personal gain. While the chief target of the legislation was big multi-national corporations which had the potential to monopolize and manipulate the market so as

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to squeeze out competition, surprisingly, the most fierce and sustained opposition came from groups claiming to represent small and medium enterprises (SMEs). They insisted that whatever the Government’s intent, the SMEs would become the real victims because they would not be able to understand the law, and had neither the resources to pay for expensive legal advice nor to fund expensive litigation if the law was used unfairly against them. They pointed out that the concepts in the legislation were unclear and ill-defined, and on that basis demanded that blanket exemptions should be given to SMEs, widely defined. As their opposition developed, the pro-Government members began to be shaken in their support of the bill. Ironically, it was the pan-democrats who maintained their support through thick and thin. Their worry was that the Government would buckle under pressure and make too many concessions, so that a watereddown version of the legislation passed would be completely ineffectual.24 There were major issues which merited serious and detailed discussions but the care and attention of most of the 34 members was simply not engaged. In particular, there were issues with the impact on the rule of law and the jurisdiction of the courts. For example, the blanket exclusion of statutory bodies (which was given the widest definition) from the application of the legislation, which was unprincipled and unnecessary for any legitimate purpose, came under strong criticism. Also, the definition of the courts as “statutory bodies” was absurd. But because the proceedings in the bills committee had got completely out of hand, by then there was little time left for the bill to go back to LegCo for enactment if it were not to lapse. Moreover, as LegCo drew close to the end of its term and prorogation, many other bills in progress required wrapping up as well, resulting in frequent clashes of schedule and meetings having to be cancelled because a quorum could not be secured: one disadvantage of a large membership was that more members were needed to form a quorum.

24 Report of the Bills Committee on the Competition Bill tabled at the Legislative Council on May 30, 2012 [CB(1) 1919/11-12].

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To this chaotic situation was added the government restructure proposals of the Chief Executive-elect, which the Government insisted on being given priority. The proposal and the procedure aroused bitter resistance and brought about a series of unending debates and meetings. In the end, when debate on the bill was resumed in LegCo on June 14, 2012, the debate was almost cursory and of poor quality, and hardly gave the important issues the airing they deserved, indeed, they demanded, in LegCo’s official record. It can also be seen from the records of the bills committee that it was the senior civil servants who attended to the bill and who, like their colleagues responsible for the Securities and Futures bill ten years previously, acquired expertise through conscientious participation. It was all too obvious that the issues were beyond the experience of the politically appointed Secretary; nor was this compensated by any ability to rally the necessary political support even of members of his own political party. But for the help of the democrats, particularly Ronny S. C. Tong, Vice Chairman of the Bills Committee, the whole exercise would have lost all credibility. Yet partisan politics had gone so deep by then that these members were labeled enemies of the regime and denied the opportunity of making a full contribution or, at any rate, any acknowledgement of the contribution that they had made. The last, and perhaps most powerful, example I will draw on to illustrate the change in LegCo’s legislative work is that of the Land Titles Bill which was introduced into LegCo on December 18, 2002, passed into law on July 7, 2004, and has yet to come into effect, a full ten years later.25 It is doubtful whether it will ever come into effect, and if it does, in what final form and with what consequences. As I said in my speech in LegCo when the bill was passed on July 24, 2004, it was impossible to exaggerate the important step we were taking. The aim and effect of the bill was succinctly summarized in my speech as the chair of the bills committee:

25 Report of the Bills Committee on Land Titles Bill to the Council Meeting on July 7, 2004 [CB(1) 2276/03-04].

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“The Land Titles Bill seeks to replace the existing deeds registration system with a new land title registration system. Under the new system, the registration of a person as the owner of land shall vest the title of the land in him. The Title Register shall be conclusive evidence of the title to registered land and it will no longer be necessary to review the historical title deeds to establish title as at present. The new system is expected to provide greater security to property interests and simplify conveyancing.” Conveyancing would be brought into line with title registration systems long adopted in other jurisdictions. The enactment of the bill was also thought to bring to a successful conclusion a long history of debate and procrastination. The existing system which required lawyers to investigate title deeds was cumbersome, expensive and fraught with risks. Doing away with the old system and replacing it with title registration had long been mooted. In 1988, a working party was set up under the Registrar General. In 1991, Professor Peter Willoughby, chair professor of the Law Faculty of The University of Hong Kong, who was appointed consultant, submitted his report and made recommendations. In November 1994, the Government introduced the first Land Titles Bill into LegCo, but because there was insufficient time to deal with the complex issues and the strong objections to various provisions of the bill, the bill lapsed in 1995 at the end of the LegCo term. The Government was reluctant to re-introduce the bill until 2002, when the Law Society no longer objected to the legislation in principle. However, the bill was by any standards a difficult piece of legislation, and any mistake could adversely affect the numerous home owners in Hong Kong. A bills committee was formed in January 2003 with 12 members. Thirty-nine meetings were held. Submissions and representations were received from nine organizations and one individual. The Law Society played an important role in testing how the legislative provisions would work in practice in Hong Kong’s conveyancing. It was quickly discovered that the Government had little familiarity with real conveyancing practice. Fortunately, the Land Registrar, who participated throughout in the bills

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committee’s deliberations, took the remedial step of engaging conveyancing practitioners as his expert advisers. Technically speaking, the Director of Lands was the policy official and sponsor of the bill, not the Land Registrar, who was there only in a working capacity. Nor was he a lawyer or expert in conveyancing, but in the course of the intensive scrutiny process he too became an expert in both the old system and the proposed new system. The bill, frankly, had a great many difficulties, not confined to technical legal matters. At the heart of it was this. While the foundation of a title registration system is that registered title is guaranteed by the government, the HKSAR government refused to guarantee title except to a limited extent. The bill originally proposed that title was to be guaranteed by a “certificate of good title” issued by a solicitor. It also placed a cap on the indemnity payable by the Government to a registered owner who lost the title to his property when, as a result of fraud, another person was registered as the owner. The Hong Kong Bar Association warned that this would amount to expropriation contrary to Articles 6 and 105 of the Basic Law, but the Government remained unconvinced. Because there was no absolute Government guarantee, the title registration system to be introduced in Hong Kong could not be entirely simple and absolute. A larger measure of rectification had to be provided for the register to be “rectified” by the Land Registrar or by a court. The greatest stumbling block, however, was the problem of the mechanism of “conversion;” that is, the transition from the old system to the new system. The original proposal in the bill was a “gradual conversion.” After the legislation came into effect, application for conversion would be mandatory for a property at the time it changed hands, but an owner could also voluntarily apply for conversion of his ownership to the new system. Either way, mandatory or voluntary, the application had to be accompanied by a “certificate of good title” issued by a solicitor as mentioned above, and there was no mechanism for the solicitor to refer the matter for review or adjudication in case of doubt. This would render the system unworkable. Not only would solicitors refuse to take on the unlimited liability, but making the solicitor ultimately the only source of redress was poor guarantee for title.

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In the face of such daunting difficulties, and under the constraint of time (no one could countenance the bill lapsing a second time), the bills committee worked hard to find solutions. As a result of the co-ordinated efforts of Government, members of the bills committee and concerned organizations especially the Law Society, reasonably acceptable solutions were proposed. A “daylight conversion” mechanism proposed by the Law Society was agreed upon, whereby conversion would take place in stages. First, upon commencement of the legislation, all new land would come under the new system. Next came a twelve-year “incubation period” within which the existing system would operate but allowed for unregistered interests to be dealt with and “caution against conversion” to be registered. Finally, at the end of the 12 period (or longer if LegCo so resolved), all titles would be converted to the new system by operation of law. In view of “daylight conversion” being agreed upon, adjustments had to be made to provisions of rectification and other matters. Some members remained concerned about the capping of indemnity (at that time envisaged to be HK$30 million — by now an absurd limit), but it would be a matter for future challenge in court if necessary. Because of the feverish speed at which extensive amendments had to be drawn up by the Government and passed by members, the bills committee requested, at the resumption of the bill’s second reading in LegCo, that the Government carefully review the drafting to ensure that there were no inadvertent errors. A two-year period before commencement was agreed as reasonable for the necessary rules and regulations to be put in place in order to achieve effective implementation. According to good LegCo practice, the matter was delegated to the policy panels to follow up. Such a major reform affecting all Hong Kong property owners big or small was greeted with little interest from the media or the public at large. Only one local newspaper did a full report on the effect of the legislation.26 The obvious reason was that the legislation was too “technical” and could

26 Ming Pao, Daily News on July 21, 2004, B07.

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not be readily understood. Indeed, it was unavoidably so. However, it would not have been difficult to report and describe the main practical effects in layman’s terms. But by July 2004, media attention was elsewhere. At the end of the two-year period, completion of the review exercise was not in sight. In May 2007, the Panel on Lands, Planning and Works was asked to support additional staff to be appointed for the task as major changes were being contemplated. A progress report on the scope of the changes was made in December 2008 to the Panel on Development. A long gap between enactment of the complex legislation and amendment of this extent would mean members would have difficulty coming to grips with the real issues. To bridge the gap, a joint subcommittee was formed in January 2009 by the Panel on Development and Panel on Administration of Justice and Legal Services in order to meet with the administration and stakeholders to monitor the progress of the review and amendment.27 It soon became clear to the subcommittee that the review exercise had gone way beyond what was originally envisaged, and threatened to get completely out of hand. According to the Government, the proposed new option would involve major changes to the legal framework laid down in the Ordinance and that its adoption would inevitably require considerable new provisions.28 What was even more problematic was that deep disagreement had developed between the stakeholders, particularly the Heung Yee Kuk and the Law Society and organizations of developers and the construction industries on the conversion mechanism, the rectification mechanism, the cap on indemnity and the need for a comprehensive programme of determination of all land boundaries supported by the Hong Kong Institute of Surveyors, before conversion could take place. All these issues had already been aired in the bills committee before, but were now re-opened and revisited.

27 Report of the Joint Subcommittee on Amendments to the Land Titles Ordinance [CB(1)51/1112]. 28 Ibid., paragraph 60.

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At its tenth meeting, held on October 14, 2011, the subcommittee decided that, given the obviously fluid situation, it was pointless for it to continue its meetings. A report was made to the House Committee. In the report, disappointment and regret was expressed on the unsatisfactory progress since 2004 in spite of substantial commitment of time and public resources over the years. This was very much to be attributed to the Government’s swaying policy stance on certain core issues over the years.29 In other words, by 2011, the Government had lost the authority and control it could still command in 2004, to such an extent that even legislation which had been passed cannot be put into effect. The Government was neither able to forge consensus nor override vested interests. There is now little chance of a title registration system being put in place. Indeed, even if the Land Titles Ordinance were now to be implemented, it is unthinkable what will happen if problems occur and the Government lacks the stamina, the wisdom, and the commitment to bring about a decent solution to them. Meanwhile, Hong Kong is paying a serious price because while Government drifted and delayed over the anticipated titles registration system, fewer and fewer legal practitioners entered the field of conveyancing. With the retirement of experienced practitioners, expertise is rapidly being lost while the existing system still has to go on. For so long as the Land titles Ordinance is shelved, deterioration will continue. If and when the Government decides that the change is to be abandoned, the loss of expertise will have become irreversible. Not only conveyancing practitioners but also the development of this area of law in Hong Kong will suffer.

4. Conclusion The quality of legislation is obviously crucial to a society in which the rule of law is to prevail. In a sophisticated city with a mature legal system, the

29 Ibid., paragraph 63.

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legislation required would involve a complex network of interests, factual situations, economic and policy issues and legal concepts. My long years in LegCo fully demonstrated to me, and I hope I have demonstrated the same in this paper, that legislation is a partnership business. It requires an administration which is principled, competent, alert to developments in the world and the needs of the community, and which has sufficient respect for the legislature and due process. These conditions are essential for legislative proposals which are well drafted and well timed. In order to perform its constitutional legislative function, LegCo has to be able to vet the bills introduced independently and conscientiously, and this requires LegCo to have members with competence and commitment, and secretarial support of high standards of professionalism. LegCo members should be able to understand why we need parliamentary procedures, the underlying principles they embody and their proper functioning, and always be ready to look for innovative solutions. Past examples have illustrated that new conventions and mechanisms which do not undermine due process can be established with carefully thought out precedents so that, with time and experience, the LegCo will be strengthened by its own practice and procedure. The more competent and conscientious both partners are, the more they would be able to respect and trust each other, the greater the efficiency and the likelihood that the resultant legislation will stand the test of time. I have always believed that the unifying force is the proper expectation they have of themselves and the respect and commitment each owe to the institution in which they hold their office. Without this, good legislation is not a possibility, and good governance under the rule of law a forlorn hope.

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5 Public Participation and Sustainable Development in Hong Kong Issues and Challenges for Policy Design and Implementation Maria FRANCESCH-HUIDOBRO

1.

Introduction

Sustainable development has become one of the most widely used terms in the language of contemporary policy making. The past 40 years have seen major changes in the approach to economic growth, development and environmental protection. Three international conferences serve as landmarks (1972, 1992, and 2012). The United Nations Conference on Human Environment, held in Stockholm in 1972, was the first major discussion of environmental issues at the international level, and it later resulted in the United Nations Environment Programme (UNEP). The agenda touched on virtually all aspects of natural resources but the focus was the threat to the natural environment posed by industrial pollution and economic growth. The Stockholm Conference took place after two decades in which the world’s population increased from 2.5 billion to 3.7 billion. Policy makers and scientists in developed countries, on one hand, expressed fears that the population explosion would lead to serious environmental problems, mass starvation and social breakdown. This view was, on the other hand, rejected by developing countries. They argued that poverty posed a greater threat to human welfare and the environment and that for them economic growth was not the problem but the solution.

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Thus began a divisive difference in attitude — with economic growth and environmental protection being assigned conflicting roles. During the 1980s a new paradigm emerged which appeared to reconcile these conflicting objectives. In 1987, the World Commission on the Environment and Development published Our Common Future, better known as the Brundtland Report. The report defined the concept of sustainable development, in which environmental protection, social equity, and long-term economic growth are seen not as incompatible but as complementary and mutually dependent. Solving environmental problems requires resources that only economic growth can provide, while economic growth will falter if human health and natural resources are damaged by environmental degradation. The publication of the Brundtland Report set in motion a process that culminated in the 1992 United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro. UNCED emphasized integrated strategies to promote human development through economic growth based on supportable management of the natural resource base. The Rio action plan, Agenda 21, thus reaffirmed the Brundtland Report’s message: socio-economic development and environmental protection are intimately linked and effective policy-making must tackle them together.1 Twenty years after Rio, in 2012, world leaders gathered again in the Brazilian city. The United Nations Conference on Sustainable Development (Rio+20) agenda was filled with challenges like alleviating poverty in a sustainable way, managing globalization for sustainable development, improving governance and strengthening institutional mechanisms for sustainable development, and finding the political will to gather financial resources to pursue sustainable development. Rio+20 resulted on two types of outcomes: a political declaration of fully negotiated issues agreed by all targets, and a plan of implementation. It is in this context that this chapter seeks to analyze the way in which the Hong Kong government has been going about incorporating sustainable development into the policy-making process with emphasis on changes in institutional arrangements since 2001. From the perspective of

1 For further discussion on Agenda 21 see www.unep.org.

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policy analysis, it is important to understand the rationale behind setting up a particular policy. The political climate of the time, the available expertise, the shift in administrative and political culture and the global and social values of a locality are factors affecting the setting up of a distinctive policy. At present, the Hong Kong government has not yet adopted a strategy for sustainable development. Nevertheless, in this chapter I will argue that a combination of problems, policies and politics are forcing the concept onto the government agenda. The chapter is organized as follows. The second section provides the context through a brief analysis of the history of sustainable development in Hong Kong. This is followed in section three by an analytical framework proposing a way to look at policy design for sustainable development in the city. Here I revisit the analysis I made in 2004, when the concept of sustainable development was being incorporated into the policy making process in Hong Kong.2 I find that a mix of the pluralist, corporatist and agenda setting approaches to policy-making focusing on the primacy of groups is still very valid in understanding policy design for sustainable development. To substantiate this argument, I analyze how interest groups and “functional constituencies” are influencing the decisionmaking process. The fourth section then brings the discussion to an analysis of the implementation of sustainable development by looking at changes in institutional arrangements, arguably prompted by the desire to coordinate action within and outside government in achieving sustainable development. The fifth section sets out some conclusions.

2. Sustainable Development in Hong Kong In Hong Kong, cultural and socio-economic factors are such that the values and concepts related to sustainable development are presently appreciated by only a few, even within the government. This is not surprising when

2 Maria Francesch, Sustainable Development in Hong Kong. Hong Kong: Hong Kong University Press. 2004. Ch 4.

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considering that historically the Hong Kong government has based its policies on the “positive non-intervention” principle and its population has a strong focus on the commercial development of “a borrowed place, in a borrowed time.” 3 Thus, the very idea of proposing policies that take into account future environmental and social conditions, at the expense of possible present growth, is generally considered radical. The main government initiatives in sustainable development have grown out of its own recognition that a broad — but in no way comprehensive — array of policies, infrastructure and legislation that focus mainly on pollution control and not on prevention, are not working. In fact, pollution and environmental degradation are appreciably worsening in Hong Kong. The concept of sustainable development was introduced in Hong Kong in the second review of a ten-year plan presenting a comprehensive scheme to control pollution. The 1989 White Paper “Pollution in Hong Kong: A Time to Act,” first revised in 1993, was subsequently revised in 1998 calling for examination of the sustainability of Hong Kong’s way of life. The fourth and final review of 1998 was entitled “Sustainable Development: a Green Future.” 4 Yet despite the government’s efforts to raise public awareness about the concept, this is still not well understood by the community. Indeed, it is far from appreciated by decision makers or by anyone playing a role in the planning process. Since the publication of the White Paper, the Hong Kong government has invested large sums of money to correct past environmental damage and unsustainable uses and to prevent future damage. For instance, the “polluter pays” programme was introduced in 1995: the scheme put in place legislation to charge for the treatment and disposal of sewage and

3 Jonathan Dimbleby, The Last Governor: Chris Patten and the Handover of Hong Kong. London: Little, Brown and Co. 1997; Environmental Resources Management, on behalf of the HKSAR Government, Sustainable Development in Hong Kong for the 21st Century. Public Consultation Report. Hong Kong: Environmental Resources Management Ltd, 1998. 4 Environmental Protection Department, White Chapter. Pollution in Hong Kong: A Time to Act. Hong Kong: Hong Kong SAR Government, 1989; Environmental Protection Department, Sustainable Development: A Green Future. Hong Kong: Hong Kong SAR Government, 1998.

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chemical waste. Measures were also introduced to adopt more stringent vehicle emissions controls in line with international standards. In 2001, the government announced its intention to introduce a dumping fee by which companies are to be charged HK$125 per ton for waste dumped into landfill sites.5 2.1 Susdev 21 Under the HK$40 million consultancy project “Sustainable Development for the Twenty-first Century” (Susdev 21) the government studied how a framework integrating environmental, economic and social policies and plans could be formulated. The study was done in 1997 in two stages. Stage 1 was public consultation and collection of views on the concept to come up with guiding principles, values, and indicators. Stage 2 created a computer based model of sustainable development indicators with the purpose of assisting all government departments in their decision as to whether a proposed project or policy is sustainable or not. The final Revised Version of the consultancy project, Topic Report 6 (TR6), was released in January 1999 and the final version of Susdev 21 has been available since February 2001. TR6 presented the guiding principles, indicators and evaluative criteria proposed for the computerized sustainable development system, the Computer Aided Sustainability Evaluation Tool (CASET). It incorporated comments received from government departments and bureaux and a number of stakeholders on the first version and revised versions of TR6 (dated 28 August and 7 December 1998 respectively). The guiding principles, and associated indicators and evaluative criteria, cover economic, social and planning, and environmental issues. Since sustainable development principles are broad, their delivery focuses on specific issues. This may be done through certain indicators of which Susdev 21 proposed 39. Additional indicators proposed by the public

5 Quentin Chan, “Dumping fees to be introduced in landfills,” South China Morning Post, April 6, 2001.

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were rejected by the administration because information about them was not available or they were too specific or irrelevant. Furthermore, at the meeting of the Legislative Council (LegCo) on January 27, 2000, officials said that bureaux and departments were asked to propose indicators that fitted their agendas and where the administration already had existing programmes. CASET, described in Annex B of the SusDev 21 consultation document, is at present a tool that is useful, yet limited, in its purpose to assess a specific policy’s or project’s sustainability. Since CASET has been programmed as a Microsoft-compatible software application, it has been made available for sale to the public. This has also enabled modelling to be done by the private sector, in turn enriching models and insights overall. Susdev 21 also proposed setting up a Council for Sustainable Development (CSD) and a Sustainable Development Unit (SDU). In February 2001, the government made a proposal to LegCo to provide directorate support to lead the SDU which was then set up in April 2001. Three directorate posts were proposed at the Administration Wing of the offices of the Chief Secretary for Administration and the Financial Secretary. The SDU was established under the Administrative Wing of the Chief Secretary for Administration’s Office on April 2001. Its mandate was to institute a system of sustainable impact assessment so as to integrate the concept in policy initiatives, to sustain the discussion started after the publication of Susdev 21, and to provide support for the CSD. The 18member Council, headed by the then Chief Secretary, Donald Tsang Yamkuen, was appointed by the Chief Executive in late February 2003, after three years it was first proposed. In May 2003, the government announced it was to launch, through the CSD, a consultation on formulating a sustainable development strategy with the intention of drawing a Local Agenda 21.6 The remit of the CSD is “to provide expert advice to the Government and keep the public regularly informed about its work, so we can build

6 Quentin Chan and Cheung Chi-fai, “Public views sought on Hong Kong development,” South China Morning Post, May 5, 2003.

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a better understanding of the concept of sustainable development … [and] encourage the community to put the concept of sustainability in practice”).7 The remit seems vague and non-descriptive of specific powers. After the establishment of the Council, all bureaux and departments were required to include in their submissions to the Chief Secretary’s Committee (CSC) or the Executive Council a statement on the sustainability impact assessments of major policies and programmes.8 An area that is often discussed in the context of sustainable development but is not addressed in Susdev 21 concerns moral values and public participation. In the body of literature on sustainable development we find that scholars believe that mere utilitarian considerations or even an aesthetic approach to respect for the surroundings cannot be a sufficient basis for genuine education on ecology. Rather, solid ethical convictions involving self-control, responsibility, justice and ultimately love ought to be present.9 Public participation is an issue because unless problems are examined in a cross-sectoral and multidisciplinary arena, development will continue to be dictated by partisan considerations. Besides Susdev 21 and in line with international trends to place environmental friendliness and sustainability in the scope of corporate management, the government is placing emphasis on promoting the introduction of corporate green management and appropriate environmental management systems such as ISO 14000. Despite the government’s efforts and the validity of the schemes in place, the initiatives that were started by the government have now largely been taken up by the private sector.

7 Council for Sustainable Development of Hong Kong, www.susdev.org.hk/english/index.php accessed March 21, 2014. 8 Chief Secretary for Administration’s Office, Chapter presented to the Panel on Environmental Affairs, “Follow Up — Proposed Establishment of the Sustainable Development Unit,” Chapter No. CB (1) 577/00-01, February 9, 2001, Hong Kong Special Administrative Region, Hong Kong 9 Joseph De Torre, Bioethical Questions. Manila: University of Asia and the Pacific Foundation, Inc. 1999.

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2.2 Initial Environmental Sustainability Indicators Before the government made plans to commence the Susdev 21 study, the Centre for Urban Planning and Environmental Management (CUPEM) of The University of Hong Kong (HKU) had received a grant of HK$1.5 million from the Environmental and Conservation Fund (ECF) to develop an initial set of indicators.10 The purpose of the study was to assess how sustainable Hong Kong’s present development plan was and how it might be made more sustainable in the future. The Initial Environmental Sustainability Indicators (IESI) consequently published in March 1999 by Barron and Steinbrecher was thus the first systematic review of sustainability for Hong Kong, albeit mainly focusing on seven indicators of environmental sustainability.11 2.3 Beyond Susdev 21 and IESI In his 1999 Policy Address, the Chief Executive made a renewed commitment to adhere to the concept of sustainability in the policy process in Hong Kong. In the institutional framework the two specific directives were to set up the Council for Sustainable Development (CSD) that would provide expert advice, and the Sustainable Development Unit (SDU) with the task of assessing the “sustainability impact” of government decisions and provide analysis, as discussed above. The programme was estimated to cost HK$30 billion in the next ten years. The plan also included support for the environmental protection industry. Moreover, the Commission on Strategic Development, set up in 1997, released its first report, “Bringing Vision to Life,” at the beginning of 2000. Among its many recommendations this report outlines a plan for Hong Kong to be the region’s first sustainable city. In cross-boundary cooperation, the Hong Kong–Guangdong Joint Working Group on Sustainable Development and

10 William Barron, and Neil Steinbrecher, Heading Towards Sustainability? Hong Kong: Centre of Urban Planning and Environmental Management, University of Hong Kong, 1999. 11 Ibid.

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Environmental Protection agreed to hold its first meeting on June 8.12 The second meeting was held in February 2001 where the work progress of eight special panels was reviewed,13 and subsequent meetings have been held up to 2012. All these initiatives have created multiple fora for debate on long-term planning issues and sustainable development. Since then interest groups have suggested that to become a First World city, Hong Kong needs to take a broader and much longer-term vision of development. Given Hong Kong’s history, it is not surprising that the main activity in introducing sustainable development that was started by the government has been taken up by the market and civil society sectors. Hong Kong is not a sovereign state and as such cannot be a signatory in its own right to international conventions, protocols, and the like. However, prior to July 1, 1997, agreements entered into by the U.K. were mostly extended to Hong Kong as a British colony. After the transfer of sovereignty, the PRC has taken a similar approach but in a different capacity. It must be added however, that nothing prevented Hong Kong from enacting any of these protocols, conventions or treaties into legislation and, thereby, effectively ratifying or being able to enforce their provisions in their own right. This was done, for example, for the Montreal Protocol, the Basel Convention and the London Convention, to name a few. However, Hong Kong has not necessarily been as quick to implement these agreements as sovereign states have been. For example, the PRC was the first country in the world to draft a local “Agenda 21” in 1994, but Hong Kong still has no government-led definitive plans to do likewise. Hong Kong’s economic success has been well documented in the government’s own annual reports and in the academic literature,14 though on the environmental front Hong Kong is not doing as well. In 2000 the Hong Kong Special Administrative Region (SAR) experienced one of its

12 Environment and Food Bureau, press release, Hong Kong, May 11, 2000. 13 Environment and Food Bureau, press release, Hong Kong, February 22, 2001. 14 Suzanne Berger and Richard K. Lester, Made by Hong Kong, Oxford Mass.: Oxford University Press, 1997.

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worst air pollution readings (on March 29 the Air Pollution Index hit 174; there is wide-spread noise pollution, and poor environmental hygiene which arguably precipitated the spread of the SARS virus in 2003). Hong Kong today is also facing a serious waste disposal problem. Despite a good number of environmental laws and regulations and a well-staffed Environmental Protection Department (EPD), it has been increasingly difficult to maintain the quality of the local environment in the face of a growing problem of cross-border pollution and major on-going capital projects. The fact that the government follows an environmental management approach based on pollution control rather than on prevention and longterm goals, and that the business community and the population at large have only a basic notion of sustainability, shows that the challenges that Hong Kong faces are both great and fascinating. In giving the background to the socio-economic and political development of Hong Kong, I have discussed the major studies and directives that have set the concept of sustainable development on the government’s agenda. From these studies one concludes that the concept is being debated in various fora but a strategy has not yet been put in place. Furthermore, looking at the policy actors may provide insights into the chances of sustainability succeeding in Hong Kong.

3. Policy Design and Implementation for Sustainable Development Policy-making may be analyzed in either its organizational or its political context. The organizational context focuses on the interaction between organizations and actors inside the bureaucracy. It studies the formal bureaucratic framework and how decision-making takes place within it. The political context studies the interactions among the various political actors and how interests are achieved through bargaining power. In order to assess how the concept of sustainability is finding its way into the policy process (design and implementation) in Hong Kong,

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the political perspective seems more relevant than the organizational perspective. Outside the bureaucracy, the debate on sustainability is taking shape through the interaction of various political actors pushing for action and through the bureaucracy lobbying and bargaining with concerned parties. Moreover, approaches to policy-making treat actors as key explanatory variables to any particular policy. In order to understand how the concept of sustainable development is brought into the policy-making process in Hong Kong, it is necessary to analyze how actors influence the process. In the Hong Kong context, I propose that a mix of the pluralist and corporatist approaches to policy-making focusing on the primacy of groups is the most appropriate. To substantiate this argument, it is important to look at how interest groups and “functional constituencies” influence the decision-making process. Lindblom’s research helps provide a clear understanding of the limitations of rationality and the reality of the policy process. He rightly argues that policy-making cannot be entirely rational in the sense that all variables and options are taken into account before the best solution is chosen.15 This is because human beings operate with bounded rationality. In practice, when making a decision, we are not so much led by its objective suitability to a problem, but are constrained by its adequacy to the place, time and people involved in that decision. This occurs to individuals as well as to groups of persons. 3.1 Pluralism The pluralistic approach looks at the political arena in its broadest sense and focuses on groups not individuals.16 It looks not only at the forum where actors from the formal government structure play a role, but also where all other stakeholders, from the plethora of interest groups, participate. The appeal of the theory is that it looks at the policy process

15 Charles Lindblom, The Policy-Making Process, New Haven: Yale University Press, 1977. 16 Michael Howlett, and Minon Ramesh, Studying Public Policy. Toronto: Oxford University Press, 1995.

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beyond the confinement of formal bureaucratic structures. In fact, pluralism is based on the assumption of the primacy of interest groups in the political process. Pluralists do not believe that all groups have equal access to government and are equally capable of influencing decisions,17 though these groups are characterized not only by being numerous and flexible, but also by membership moving across the board. This type of arrangement facilitates reconciliation and co-operation among groups. The guiding principle of this theory is that no single group dominates the policy process and every group has power for as long as it is sufficiently determined to participate in the process. This leads to the conclusion that policy formulation is influenced not only by those that are formally vested with authority within the executive or legislative arm of the government, but also by everyone else. The next conclusion drawn from here is that, although institutions set limits to action, they are never so powerful as to impede others outside them to act. The limitation of this theory is that it explains how the policy process should take place but not how it should be done; the role of government is unclear. Is the government a “messenger” registering and transmitting demands placed upon it by all those concerned? Is it simply an arena where various groups meet and bargain? Reality shows that even in the most perfectly participatory societies, there are groups that dominate the process. This brought the emergence of Neo-pluralism.18 This modified approach recognizes, for example, that in modern capitalist societies, business groups are more powerful than other interest groups for the mere fact that economic growth and the functioning of the private sector is based on businesses’ confidence and therefore they attract more attention from government than other groups. Overall, the basic limitation of the pluralist analysis of policy making is that it overemphasizes the role of interest groups while underestimating

17 M. Smith, “Pluralism, Reformed Pluralism and Neopluralism: The Role of the Pressure Groups in Policy-Making,” Political Studies 38 (1990): 302–22. 18 Howlett and Ramesh, Studying Public Policy.

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the equally important role of other factors in the policy-making process. It specifically overlooks the interests of government as one more group, of international organizations, and of trends and ideologies of a particular place and time. Its applicability to Hong Kong — a modern, capitalist, and traditionally noninterventionist state — is limited by the colonial tradition and the dominance of the business community. Nevertheless, as the government moves towards a more consultative manner of handling the planning process, the pluralist approach seems adequate and its basic tenets serve well the purpose of analyzing which groups of actors influence the incorporation of the concept of sustainability to the policy process. Moreover, the influence of interest groups is desirable as a basis for sustainability. The latter calls for long-term planning; horizontal, interdisciplinary and cross-sectoral participation; vertical integration; new governance; legislation that ensures environmental protection and management of growth; public awareness; a three-way partnership between the state, market and civil society; targeted inward investment and promotion of the environmental business sector.19 To what extent, however, are interest groups influencing the policy process? At present in Hong Kong policies are mostly set by people vested with formal authority, acting in a timely manner, sharing particular sets of values of specific interest groups. This is contradictory to sustainability which calls for consensus building and long-term strategic planning. In her “alternative Policy Address” of 1999, LegCo member Christine Loh argued that to make Hong Kong truly sustainable we need to reinvent politics. The Government needs to provide institutions and forums for the creation of a strong citizenry who together can be better informed about what choices they have for their advancement. People and Government need channels to deliberate and make public choices rather than depend

19 Mee Kam Ng, Views and Comments on Recommendations of SUSDEV 21. Hong Kong: Centre of Urban Planning and Environmental Management, University of Hong Kong, 2000.

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on elitist solutions from those who think they have all the answers. Hong Kong desperately needs a political system that befits a World City.20 This new order does not come easily, however. There are challenges that planners and public officials face today in governing the SAR. First, there is the challenge of the structural-institutional set up of the political system whereby differences among groups with contrasting views are being intensified. Second, there are the socio-cultural characteristics of the SAR that are more complex than in the previous decade because of age, ethnic, demographic and socio-economic changes.21 Also, there is the historical challenge upon the existing political system and the emerging of a new environmental paradigm which favors collective action to search for a sustainable way of living.22 Studies carried out recently also support this paradigm shift toward an environmentally-friendly approach to development. Therefore the pluralist approach is becoming more and more relevant in analyzing policy-making in Hong Kong. 3.2 Corporatism Corporatism can be best understood in contrast with pluralism. Pluralism is a theory explaining that a multitude of groups exist to represent their own members’ interests, and where groups come together freely, and membership is voluntary and detached from government interference. Corporatism, by contrast, is a system of “functional constituencies” of groups that are not free forming, voluntary or competitive. They are not autonomous either as they depend on government for recognition and support in return for a role in policy-making. Corporatism includes in

20 Christine Loh, “Alternative Policy Address: Hong Kong: A Sustainable World City in the Millennium,” Hong Kong: Citizens Party, 1999. 21 Oi King Lai, “The Socio-Politics of Community Participation in Territorial Planning: The Challenge of Hong Kong Governance towards the 21st Century,” in Planning Hong Kong for the 21st Century, ed. Anthony Yeh, Hong Kong: Centre of Urban Planning and Environmental Management, University of Hong Kong, 1996. 22 Ronald Inglehart, Culture Shift in Advanced Industrial Society, Princeton, NJ: Princeton University Press, 1990.

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its agenda two issues cast aside by pluralism: the role of government and the relation between government and the various groups.23 Corporatists believe that policy is shaped by this interaction between the government and interest groups recognized by the government; interaction is institutionalized and mediated by the state. This approach argues that close cooperation between the state and interest groups makes good and coherent policy. The limitation of this theory is that it is too simplistic to explain policy outcomes based on the factor of linkage between the state and groups. It does not explain either how the government recognizes some groups and not others. In the Hong Kong scenario, this approach serves to analyze how the traditional business groups affect public policy decisions. Policies, whether devised by the colonial government or the more recent SAR administration, have been influenced by organized interest groups known as “functional constituencies” (Basic Law, Article 68 and Annex II). Nevertheless, as the policy process takes more stakeholders on board and moves into a wider consultative forum, corporatism is being constrained by pluralism. 3.3 Agenda Setting A series of ideological, political and social factors determine which problems gain access to the official agenda and will be considered for resolution. In Hong Kong, the recent emergence of a more vocal, knowledgeable and louder voice demanding solutions to environmental degradation and piecemeal planning is the result of some of these determinants. This trend may increase the impact of a growing number of people steering the policy process who are knowledgeable about environmental and sustainable ideologies. It may also be due to a shift in the economic base from manufacturing to services that creates a more

23 Philippe C. Schmitter, “Reflections on Where the Theory of Neo-Corporatism May Have Gone, and Where the Praxis of Neo-Corporatism May Be Going,” in Patterns of Corporatist PolicyMaking, ed. G. Lehmbruch and P.C. Schmitter, London: Sage, 1982.

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sophisticated population demanding higher quality of life, and the use of the Internet as a means to bring minds alike together and access the policy process. All of this is shifting, albeit in small proportions, the government agenda. Besides the more general socio-economic changes mentioned above, more specific reasons may be the cause of changes affecting Hong Kong’s policy process in the past 25 years, namely the establishment of the Environmental Protection Department in 1986; the appointment of Chris Patten as the last governor of Hong Kong and his blueprint for political reform in 1992; the election to LegCo of members with “green agendas” from 1992; the direct elections of 1995; the handover in 1997 and the subsequent Asian economic crisis at the end of 1997; the deterioration of local air quality; the signing of global agreements on the environment and sustainable development; and the effect of directives set out in the Chief Executive’s annual Policy Address since 1999. The interest of policy analysts is not only how agendas are set and how alternatives are screened out, but also the policy decision itself. Now sustainable development policy has been on the global agenda for several years, and in Hong Kong administrative and community circles for a few years, there is enough favorable and adverse feedback to push the policy towards new directions. 3.4 Actors in the Policy Process Actors in the policy process may be either individuals or groups. Although primary actors are usually easily identifiable, each particular area of policy has a specific set of actors.24 In the context of bringing about sustainability to the policy process, actors can be identified both within the machinery of government and in the society at large. For the sake of clarity, policy actors have been divided here into six categories: government officials,

24 Howlett and Ramesh, Studying Public Policy.

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legislators, interests groups, citizens, research organizations, and the media. What follows is an analysis of their role in the current Hong Kong political arena and an assessment of how their mindset and position influences the inclusion of sustainability in the policy process. A. The Executive Council and the Administration When speaking about the government, reference is made to the Executive Council (ExCo), the bureaucracy in general — also called the administration — and the agencies involved in planning and environmental protection in particular. ExCo and the bureaucracy are in theory the key players in the policy process having a great deal of control over the political agenda. This is not only because of their constitutional authority but also because they can count on unmatched resources. Their assets range from access to and control over information, to control over fiscal resources, professional expertise, and command over the introduction and passing of laws in the LegCo.25 ExCo has a prominent but powerless role when it comes to the day-to-day process of making policy. The civil service still has a monopoly over the everyday formulation and implementation of public policy but its work is secretive, thus difficult to evaluate as such.26 It has been argued that the introduction of the so-called “principal officials accountability system” (POAS) in July 2002 altered the distribution of power within the executive by transferring it from the bureaucracy to the Chief Executive and his politically appointed Principal Officials.27 In its

25 Ibid. 26 Maria Francesch-Huidobro, “Governance of Climate Change in Coastal Cities: the Example of Hong Kong,” in Climate Adaptation and Flood Risk in Coastal Cities, ed. Jeroen Aerts, Wouter Botzen, Malcolm Bowman, Philip Ward and Piet Dircke. Oxford: Earthscan Climate from Routledge, 2011; “Institutional Deficit and Lack of Legitimacy: the Challenges of Climate Change Governance in Hong Kong,” Environmental Politics 21(5) (2012): 791–810; Ian Scott, “The Disarticulation of Hong Kong’s Post-Handover Political System,” The China Journal (2000): 29-53. 27 John Burns, “Policy Stages and Windows: The Policy Process in Hong Kong.” Paper presented at the PPA Staff Seminar (draft, February 19, 2003).

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first years of existence, the POAS has proven more of a hindrance than an asset in policy formulation, notwithstanding the dissatisfaction the performance of individual Principal Officials has brought about.28 The bureaux and departments playing a direct a role in planning and environmental policy areas are the Environment Bureau (EB) with its Environmental Protection Department (EPD), the Food and Health Bureau (FHB) with its Agriculture, Fisheries and Conservation Department (AFCD) and Food and Environmental Hygiene Department (FEHD), and the Development Bureau (DB) with its Buildings, Drainage Services, Electrical and Mechanical Services, Lands, Planning and Water Supplies departments. There are also other departments that in one way or another have a planning or environmental role like the Highways, Marine, Transport, Territorial Development and Works Departments, and the various advisory bodies created to address specific planning and environmental issues, namely the Advisory Council of the Environment (ACE), the Town Planning Board (TPB), the Chief Executive Commission on Strategic Development (CECSD), the Hong Kong–Guangdong Joint Working Group on Sustainable Development and Environmental Protection and the proposed Council for Sustainable Development. These agencies generally have a clear vision but face a problem of translating this vision into policy, as reported in a special supplement to the South China Morning Post in 1999.29 In particular, then as now, the EB was just a bureau among hundreds of other agencies, so if it comes into conflict with other bureaux or departments, and short-term economic benefits are at stake, the latter may prevail. An SCMP reporter argued that the public should be allowed to have a voice since it has the right to know what is going on. Kim Salkeld, then Deputy Secretary of the Environment and Food Bureau, explained that government surveys showed there was

28 In July 2003 two of the Principal Officials, the Financial Secretary and the Secretary for Security, resigned from their posts after weeks of unprecedented public demonstrations. 29 The following citations are drawn from “Post Magazine Environment Special,” by R. Cook, Katherine Foster and Fiona McHugh, South China Morning Post, January 31, 1999.

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a high level of public understanding of the environmental problems, and there even seemed to be a willingness to pay more to bring about improvements. It is, Salkeld argues, the transfer of attitudes to politicians that seems to be the problem. Interest groups have always had more voice than the public in LegCo and a lot depends on how strongly the public feels and reacts about an issue. Here, the government’s environmental agenda seems to be at fault, since there is no clear framework. Although there seems to be heightened awareness about the environment, it is still difficult for people in the government to make the hard choices; each issue is treated very narrowly: economic considerations, social consequences. The wider and longer-term public interest is generally not being thought through. All sides must make their pitch, Salkeld argues, but with a view to improving the interests of Hong Kong, the wider and longer-term consequences must be considered. Attitudes within the government are slowly changing, with green groups and parts of the private sector being given more of a voice, but still the government’s environmental policy lacks direction and appears too scattered. The administration has a sequential agenda; everything it does has to fit a specific and sometimes very narrow legislative framework, often failing to see the big picture. According to Christine Loh, quoted in the same SCMP special supplement, in many cases the government does not know what the environmental impact of its policies will be: it tends to devise new plans and only when it releases the plans does it conduct the environmental impact assessment.30 Moreover, the EPD does its part when it comes to industrial pollutants in trying to educate offenders. However, it does not take a leading role until public opinion is right behind it. Despite its generous budget it moves very slowly; commissioning costly studies which circulate within EPD and other departments but which the general public rarely sees.31 Nevertheless, there are exceptions to this otherwise common pattern. For example, in tackling

30 Ibid. 31 Ibid.

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the development of Long Valley, the EPD challenged the Environmental Impact Assessment (EIA) submitted by the Kowloon-Canton Railway Corporation which had proposed a spur line to cut across Long Valley — a wetland and unique bird sanctuary. The Corporation eventually had to build the spur line underground. A sustainable community requires sustainable laws, and that means changes in policy and legislation. Before July 1, 1997, there were two mechanisms to change legislation: one was a government bill, the other a Private Member’s Bill (a bill proposed by an individual member of the Legislative Council). Article 74 of the Basic Law states that “members of the Legislative Council may introduce bills in accordance with the provisions of law and legal procedures,” and bills that do not relate to public expenditure or political structure or the operation of the government may be introduced individually or jointly by members of the LegCo. The written consent of the Chief Executive is required before bills related to government policies are introduced. This de facto restricts the introduction of private member’s bills, since it is difficult to define what pertains or not to government policy. Currently, it has become virtually impossible to get private members’ bills through, so the drive for policy change must come from within government. However, the relationships between the executive, the legislature and the bureaucracy have become strained, piece-meal, uncoordinated and at times dysfunctional. It appears that each of the branches of the government pursues its own agenda. Moreover, the ExCo and the civil service develop their own policy agendas and have ceased to act in a co-ordinated fashion. Scott suggests that the reasons for this are grounded in factors behind the formal power arrangements embedded in the Basic Law … and in the domestic politics of the transition.32 This, among other consequences, affects the coherence in formulation and implementation of public policy.

32 Ian Scott, “The Disarticulation of Hong Kong’s Post-Handover Political System,” The China Journal (2000), (43): 29–53.

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For a sustainable, strategic, long-term and all-embracing policy, coordination and communication are fundamental. Interaction between various policies, strategies, plans and programmes is of crucial importance to successful long-term planning and implementation. At present, within the government, planning is divided among many bureaux and departments. The Planning and Lands Bureau (PLB) has been responsible overall for the establishment of sustainable policy. One of its dependent departments, the Planning Department (PD) submits its policy recommendations and is in charge of implementation. For example, the PD has been coordinating the Susdev 21 study. After the abolition of the two municipal councils, the Environment and Food Bureau (EFB) was established on January 1, 2000 (further divided into two bureaux in 2005). Although the new administrative arrangements seem to offer better co-ordination of policy, it is still too soon to say how it will work to steer the process for sustainability. In a report in the South China Morning Post of May 14, 2000,33 the then Secretary for EFB, Lily Yam, expressed that other government bureaux and departments with whom she was obliged to liaise did not seem to want to know about implementing measures to improve the air and the water quality. Yam affirmed that negotiating with other government departments is a real challenge because “they spout the right words but are less keen to implement environment-saving measures.” In order to improve this situation, in May 2000 Yam set up an Air Pollution Control Taskforce comprising policy secretaries or other senior staff from the departments of Transport, Finance, Economic Services, Planning and Lands, as well as the EPD.34 The most recent progress report was presented to the LegCo Panel on Environmental Affairs in November 2000. According the same SCMP report of May 14, 2000, one can conclude that, traditionally in Hong Kong, the tendency when deciding a specific course of action is to stress the economic necessity and keep the costs low.

33 E. Tacey, “Environment boss comes clean,” South China Morning Post, May 14, 2000. 34 Ibid.

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Social costs and other indirect costs that are not perceived as tangible are often ignored. This manner of acting is opposed to what sustainability advocates: a holistic approach to problems and planning. Therefore, there appears a conflict between a new demand for quality of life and the traditional economic considerations. This economic mindset is very much part of the Hong Kong government culture that is perceived to be driven by the more traditional interests of the business community. When evaluating specific policies, public officials look at costs and then at other considerations. Depending on the nature of the service or the works, more or less weight is given to each aspect. Civil servants have for the greater part of their career been functioning in accordance with a framework with which they are familiar and that has proven to be both efficient and effective. When faced with the challenge of expanding that framework or changing it all together, people’s natural tendency is to resist what they perceive as troublesome. The EPD gets a lot of the criticism for asking people to adjust to new ways of thinking and of doing things. There is clearly a need to modify the mindset and values of civil servants when it comes to long-term, presently intangible but strategic benefits both in broad policy decisions and in operational decisions. Another item in the SCMP of May 14, 2000 reported an academic specialist on Hong Kong’s sustainability, Dr. Bill Barron, as observing that different government departments tend to restrict their concern to their traditional areas of responsibility and their agendas. For instance, problems such as air pollution that cut across the departmental structure tend to be handled poorly because the departments contributing to the problem, such as the Transport Department (TD), tend to rely on other departments like the EPD whose task is to clear it up.35 Dr Barron advocated the setting up of an “interagency” and supported the government’s plans for a Council on Sustainable Development, but thought that there was still a need for more interaction between departments, more community involvement and

35 Interview reported in J. Ehrlich, “A daunting task in the air,” South China Morning Post, May 14, 2000.

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a more open public arena: “The highest human cost of the present shortsighted planning will be paid by future generations” (Ibid.).36 As one may observe, the existing structure derives from the colonial model where a generalist bureaucracy made almost all policy decisions. As a substitute for political life, an extensive net of advisory bodies was created to institutionalize public consultation. By absorbing community leaders as occasional advisers to the system, it made politics outside the administration almost unnecessary. The existing consultative process remains a sounding board system for the bureaucracy to seek the endorsement of already determined policies. This system stifles debate and innovation. The alternative would be a system that will catch a wider net of appointments within the community with a more transparent appointment process and where consultation takes place before decisions are taken. In summary, at present, within the government machinery, they are constraints that impede government officials from putting sustainable development at the center of policy-making. These constraints are mainly the civil service culture, and the lack of cross-departmental communication. Creating a structure to ensure sustainability will facilitate cross-department and cross-discipline decision-making, presently a weak area within government. Educating government officials on the importance of longterm planning and strategic thinking would certainly be the way by which the bureaucracy would become a more relevant actor in setting the agenda for sustainability. B. The Legislature Under the Basic Law, the main function of the Legislative Council (LegCo) is to enact laws and to monitor public expenditure rather that to hold the executive to account. To substantiate this, one needs to look at two Articles of the SAR Basic Law. While Article 64 calls the government of the SAR to

36 Ibid.

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abide by the law and be accountable to the LegCo of the HKSAR, Article 73, in describing the powers and functions of LegCo, makes no mention about how it might hold the government accountable. In this context, the legislature can only have a very limited influence in the decision-making process in general and in setting up the political agenda in particular. The main responsibility of the legislature is to review the appropriateness of legislation formulated and proposed by the administration. Furthermore, besides the limited powers accorded to it, issues of environmental, economic and social sustainability are not seen by the majority of legislators as matters of priority. This may be due, arguably, to the fact that politicians tend not to look at issues in a long-term fashion, since they are preoccupied with gaining support for issues that people want to be solved now. Moreover, given the fact that the concept is new and so far there has been very little public education about it, legislators also find themselves poorly informed, and only a few have taken the initiative to think of sustainability as a concept worthy of consideration. Nevertheless, the situation is changing. On one hand there are voices in the LegCo calling for a greater role in monitoring the government’s work. In her “alternative policy address” of 1999 (Loh 1999), Christine Loh, then legislative councilor, called for a constitutional convention. On the other hand, there is also a growing awareness about environmental sustainability. The Environmental Affairs Panel has achieved prestige by setting the precedent of inviting representatives from across the board to make deputations on controversial government proposals. This was the case with proposals to burn clinical waste at a retrofitted facility in the Chemical Waste Treatment Centre (CWTC) (LegCo Environmental Affairs Panel, May, 2000) and with the Environmental Impact Assessment (EIA) report on the Disneyland Project development at Penny’s Bay. Both cases prompted the administration to rethink the proposals and hold further public consultations. This modus operandi is far from ideal and does not conform with the concept of sustainability wherein consultations ought to be made before the process starts. It also delays decisions unnecessarily because at the start legislators are not given sufficient information and time to debate. Nevertheless,

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it increases the role of the LegCo in holding the administration more accountable. In sum, the LegCo, on the whole, is neither influencing the policy process in general, nor introducing the concept of sustainability into the government agenda in particular. This may be due to both the dysfunctional relationship between the legislature and the administration and the limited powers accorded to the legislature in the Basic Law, discussed above. Nevertheless, there are a few individual voices within the LegCo that are advocating the concept. Their voice is, arguably, an echo of environmental groups, other NGOs, academics and a new generation of planners. In Hong Kong, policy-making is very much the prerogative of the administration. However, business coalitions on the environment, political parties with green platforms, pressure groups and environmental NGOs are arguably now playing a more significant role in the process and especially in setting up the political agenda. The advantage of these groups is that they develop good knowledge of their area of concern and their expertise is sometimes utilized by legislators and bureaucrats. Their limitation lies in their small membership numbers, and their limited financial resources. C. Business Although the business sector has not been pro-active in environmental protection in Hong Kong and remains largely focused on short-term profit, there are sections of the business community that have been interested in protecting the environment. The main initiatives have come from two environmentally focused collective business groups that represent mostly large foreign owned companies: the Private Sector Committee on the Environment (PSCE), a group of several hundred large local companies and banks set up in the late 1980s, and the Business Coalition on the Environment (BCE) a group of mostly, but not exclusively, international chambers of commerce, some large local chambers and the Hong Kong General Chamber of Commerce (HKGCC). The PSCE is a major contributor to the Centre of Environmental Technology and through it

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makes a significant contribution to training initiatives in the environment. The BCE, set up in 1998, has acted as a discussion group and has sponsored a number of public seminars and events to raise awareness mostly in the area of environmental issues in business. In 2000, the two groups merged to form the Business Environment Council (BEC) aiming at devising strategies for cost effective environmental management. Mottershead argues that although companies connected to these groups have environmental policies and in many cases have adopted local and international codes of conduct, nevertheless they have not considered environmental issues at the operational level on a day-to-day basis. Many do not have environmental managers and if they do, they are unlikely to be at the board level. Furthermore, they mostly do not produce environmental reports, do not account for the environment in their bottom line and have no definite environmental objectives and targets against which they measure themselves. Although they make donations to NGOs they do not enter into partnerships or seek their opinion in proposed developments.37 There are reasons for these traditional, non-inclusive partnerships: in some cases NGOs have shown lack of expertise, they have been confrontational, and they are not inclined to a more cooperative type of partnership. Despite these facts, business coalitions have taken the lead in the recent developments against environmental degradation. This is noticeable in the policy area of air pollution, where the business community is particularly affected in terms of having difficulty in attracting staff to work in Hong Kong and having to move their headquarters elsewhere. D. Political Parties In general, political parties in Hong Kong have limited resources and this may be the reason why they dedicate little efforts to research and development of policy proposals. Political parties with serious

37 Terri Mottershead, “Background Brief for Proposed Sustainable Communities and Local Agenda 21 Seminar in Hong Kong.” Hong Kong: Hong Kong Sustainable Development Forum, 2000.

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environmental agendas are few in Hong Kong. The former Citizens Party (CP), now Civic Party, can be said to be the group commanding the highest level of expertise and contribution to the policy process. In the past years it has produced alternative policy addresses and alternative budgets. The CP’s resources may be more limited than those of larger political parties like the Democratic Party (DP) and the Democratic Alliance for the Betterment of Hong Kong (DAB), yet the CP has made policy research a matter of priority. This has been possible mainly by establishing partnerships with consultants and advisory groups and by tapping on a large pool of experts who have worked on a voluntary basis in policy research and advocacy. The CP’s role has been that of a facilitator of information to stakeholders interested in environmental and long-term planning issues, and of a lobbying group through which other groups have channeled their position to government. In recent years, other political parties have been putting environmental issues in their agendas. The (then) Frontier and Democratic Party (DP) were actively involved in recent discussions on dioxin emissions from incinerators and on the sustainability of genetically-modified food. The Liberal Party (LP), traditionally a pro-business group, is also calling for more stringent measures in air pollution abatement. E. Green Groups Hong Kong has around a dozen environmental groups. Some, like Friends of the Earth, Greenpeace and the World Wide Fund for Nature, are branches of international organizations that campaign on global, regional and Hong Kong issues. Others, like A Better Living Environment (ABLE), Green Peng Chau, Green Power or Green Lantau, are more grassroots and campaign on small-scale local issues. In comparison with other developed cities, membership of all these groups is small. Nonetheless, the government listens to environmental groups, though the groups feel that the government’s actions are merely symbolic.38 Attempts have been made

38 Katherine Foster in “Post Magazine Environment Special,” South China Morning Post, January 31, 1999.

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to include green groups in government decision-making: for example, the Advisory Council on the Environment (ACE), a government appointed body of advisors has some nominal representation of green groups. Similarly, green groups’ representatives meet on a regular basis with the Director of the EPD. It must be noted that almost all of these groups focus their work on environmental matters and so far have not looked at sustainable development issues. An exception is the Hong Kong Sustainable Development Forum (HKSDF), formed in 1998 with the aim of bringing all the stakeholders together to discuss Hong Kong’s sustainable development issues through the process of consensus building. The HKSDF has actively participated in meetings to discuss with the Secretary for Environment the introduction of consensus building in the decision-making process in government departments. It has also presented its views on the Southeast Kowloon Development, expressing concern that the process of consultation used was not consistent with the principle of consensus building and therefore unlikely to result in a sustainable development. Despite the limited resources of green groups and political parties with environmental platforms, these interest groups are influencing the political agenda and bringing the concept of sustainability to the policy process. Business groups, traditionally powerful government agenda setters, are being less influential because of lack a more proactive approach to environmental protection and sustainability. F.

Citizens’ Right to Know

Public information is a cornerstone of sustainable development strategies. There are potential barriers to public information, like educational attainment, language, characteristics of the personnel disseminating information, isolation, costs, and so on. Involving stakeholders in sustainable development strategies and, when damage has been done, searching for solutions to environmental problems, is not a fixed goal but a process. Environmental citizenship, or a citizenry that is environmentally friendly and conscious, is the culmination of the environmental education

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process, but it begins with the appropriate and wide information to the public about environmental issues. In the Hong Kong context, this affirmation begs answers to a number of questions: How easy is it for a member of the public to obtain environmental information? What are the predisposing and inhibiting factors to the acquisition of environmental information? Which agencies — local or international — are the most effective providers of environmental information? Is there a need for more interagency co-operation? In Hong Kong, it is not easy to acquire environmental information since it is often nebulous, scattered and too overwhelming in quantity. Further questions need to be asked: Does the general public have easy access to information? Do they know where to go? Do they have the confidence to ask for it? Do they have the ability to pay for it, if necessary? Other questions that require addressing in Hong Kong are: How many government agencies provide public environmental information and whether they are promoting green campaigns? Are there programmes to help people find and utilize environmental information? Are funds being allocated to environmental protection, and are there interest groups working for programmes to respond to the public’s demand for information? Environmental NGOs may be viewed as the most reliable and objective sources of information although they too have their own interests to protect and axes to grind. In the Hong Kong context, history has repeatedly shown that real environmental changes occur only when the public wants them. At the moment, few people are willing to make the hard decisions that will actually change the environment. In 1998, the Social Sciences Research Centre (SSRC) of The University of Hong Kong (HKU) conducted a survey on community attitudes to the environment. In March 1998, a total of 5,955 respondents aged 18 years and above were interviewed. The results showed that people’s knowledge about various environmental protection groups is quite fair. Their knowledge about groups such as Greenpeace, Green Power and Friends of the Earth was particularly good. Yet, people did not seem to be fully aware of environmental protection activities. Only 38% of the respondents had heard of environmental protection activities like World Earth Day. At the same time, a large number of respondents agreed with

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the principles of environmental protection, and were willing to share the responsibility of protecting the environment. Over half of the respondents said that the environment at present was worse than two years ago and that their health condition had been affected by pollution. This is especially true for their opinion on air pollution, which 91% of respondents said was a serious concern.39 In January 2000, the Centre for Urban Planning and Environmental Management (CUPEM) of HKU presented the Environmental Council Committee (ECC) with a study on environmental education for a sustainable future focusing on the vetting system for the funding of environmental education projects. The principal issue that emerged from the study was that although environmental education and community action initiatives in Hong Kong had been well funded during the 1990s, the institutional structures and administrative procedures upon which the financial support system was based had failed to keep pace with the increasing demands imposed on the system. CUPEM’s view was that there had been little strategic guidance on what should and should not be supported, and insufficient emphasis on integration, co-ordination and the avoidance of duplication among the projects supported. Their research also indicated that there was limited evaluation of the efficiency and effectiveness of projects and insufficient emphasis on ensuring that the projects were well designed and met acceptable quality standards. CUPEM recommended an upgrading of the vetting system to ensure that it functioned more effectively and supported high quality projects that can make a substantial contribution to developing environmental awareness and environmentally responsible behavior in Hong Kong.40 In terms of environmental education in general, it is clear that Hong Kong needs an overall strategy to guide the governmental and

39 A. Lee and F. Lau, Survey on Community Attitudes to the Environment 1997–98, Social Sciences Research Centre, Public Opinion Programme (POP), University of Hong Kong, Hong Kong, 1998. 40 P. Hills and V. Kwok, Environmental Education for a Sustainable Future. Hong Kong: Centre of Urban Planning and Environmental Management, University of Hong Kong, 2000.

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community initiatives. With the completion of the Susdev 21 study and the establishment of the Council on Sustainable Development (CSD), this seems to be a matter of urgency. The support of the general public for any sustainable development initiative will be needed and this will very much depend on their appreciation of the issue. Finally, Hills and Kwok recommended that the strategy that emerges from any educational problem should ideally address the following issues: (1) conceptualize environmental education in the context of Hong Kong; (2) specify guiding principles, overall objectives and targets; (3) review existing institutions and investigate the potential for creating a new center for environmental education in Hong Kong; (4) identify, prioritize and formulate action programmes for environmental needs; (5) identify environmental education providers, determine building capacity and mechanisms for community level involvement.41 Despite a growing demand on the part of the community for better quality of life, the Hong Kong population still relies heavily on government action to find solutions to environmental problems and to curb pollution. Moreover, citizens are not too willing to accept the “polluter pays” principle, but rather show consumption patterns and habits that are not environmentally responsible. The community at large is not driving the agenda for sustainability. At the same time, as mentioned above, public involvement and support are a must for any sustainable measure to succeed. It has been argued that effective educational programmes will make the difference. G. Research Organizations Researchers working in universities and think tanks constitute another set of societal actors. Universities in Hong Kong have shifted their emphasis from teaching and community service roles to academic research. They usually have a theoretical interest in public problems but their studies

41 Ibid.

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may not be translated into knowledge usable for policy purposes. On the other hand, functioning think tanks, which are independent organizations working in multi-disciplinary research intended to influence policy through maintaining sustained analysis and assessment of practical solutions to policy problems,42 may have a notable impact on public policy. In the environmental policy arena, some academics are committed to the environment and carry out fine research work. For example, to commemorate Earth Day 2000, a special issue of the HKU bulletin was published on April 21, 2000. Using the illustration of a tree, the bulletin listed research topics and areas of responsibility to which HKU faculties, departments, centers and offices were contributing in the area of sustainability. Examples range from the Urban Regeneration Strategy for Hong Kong jointly carried out by the Social Work and Social Administration Department and CUPEM; electric vehicle research and development by the Electrical and Electronic Engineering Department; and research on air quality and control by the Department of Community Medicine. Despite these efforts, it appears that, unlike in other developed countries, it is not the academics who are pushing for change on environmental issues in Hong Kong. Hong Kong does not have many think tanks. Non-government think tanks are well established overseas but the think tank concept has not yet taken root in Hong Kong. From the point of view of financial resources, the government is in the best position to finance research on public policies. The Central Policy Unit (CPU) can be said to be the government’s think tank and is presumably well staffed. But its work is secretive and its role is to provide an advisory service and act as the Secretariat for the Commission on Strategic Development (CSD) established by the Chief Executive (Ma 1998).43 In March 1998, the CPU organized a conference

42 Howlett and Ramesh, Studying Public Policy. 43 Ma S. H., “An Analysis of the Advisory Mechanisms to the Hong Kong Government,” Unpublished MPA Dissertation, Department of Politics and Public Administration, University of Hong Kong, Hong Kong, 1998.

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titled “Sustainable Development: Opportunities and Challenges for Hong Kong.” It is likely that the outcome of this conference triggered the inclusion of the concept of sustainability in the 1998 and 1999 Policy Addresses. The government also allocates substantial funds to tertiary institutions for research but these funds are mostly used for academic purposes. From time to time, private organizations may fund research on specific topics, however these projects usually serve a particular view and interest of a sector in the society. Soon after the handover, an independent think tank, the Hong Kong Policy Research Institute (HKPRI) was established by people from various business, academic and professional backgrounds. The primary purpose of the HKPRI is to participate in the long-term development of the Hong Kong and of the Chinese community. The Institute believes that rational policy research that takes into consideration the various views of the community can be employed as an instrument in this changing environment. The areas of research of the HKPRI focus mainly on social and educational issues. In October 2000 an independent, non-profit, think tank was founded by Christine Loh (now Undersecretary for Environment), and Lisa Hopkinson, an environmental researcher. The organization aims at promoting civic exchange and participation in public life, it undertakes research and development of economic, social and political policies and practices, and integrates skills and expertise across disciplines. Both the leadership commanded by the team and the quality of research conducted by a small team of dedicated volunteers, are making an impact — albeit small — in the environmental sustainability discourse. Given the low impact academic research organizations have on the policy process, and that think tanks are relatively non-existent in Hong Kong, research organizations as a whole are not influencing the policy process. Nevertheless, a number of academics are committed to longterm planning and sustainable development. There is evidence that the IESI study mentioned earlier has been the most palpable contribution to bringing sustainability to the attention of public officials.

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H. The Media Although things are slowly changing, Hong Kong’s media normally only covers environmental issues when there is something tangible to report on, for example, a red tide crisis (algae bloom) or high pollution readings. What is lacking is the provision of reports that are analytical and often controversial. In recent years, the South China Morning Post supplement, the “Post Magazine,” has published a series of informative reports on various aspects of pollution and most notably on January 31, 1999 on various aspects of sustainability. The “Post Magazine” also carries a regular column on pollution. These are good initiatives but the majority of the population read the Chinese press, leaving the English-language press to inform those who may be already well versed in environmental issues. As such, the media has not contributed to setting agenda for sustainability, mainly because of its reporting on pressing environmental issues rather than having taken the initiative to produce analyses on these matters. 3.4 Summary Although the bureaucracy is in principle the most influential actor in the process, its contribution to bringing sustainable development initiatives into policy making is restricted. The reasons appear to be that short-term economic benefits play the decisive role, that public dialogue is not fostered and each government agency pursues its own agenda without looking at long-term consequences of decisions, or at policies affecting various departments. Because of constraints set in the Basic Law, the LegCo only has a limited role in influencing decision-making. However, the number of voices interested in environmental sustainability is growing and this may contribute to individual legislators supporting interests groups and being lobbied by them. Interest groups are increasingly playing a more decisive role in setting the agenda, and this has been the case with the recent action plan on air pollution. In particular, green groups and some political parties doing research in policy analysis have influenced the government agenda. This has been the case on issues ranging from the labelling of genetically modified food to considerations of alternative solutions to waste incineration.

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The public at large is not playing a decisive role, arguably because of lack of information on the concept and on specific environmental initiatives. Individual studies carried out by researchers working at universities like IESI have contributed to the debate. The EPD and PD are using IESI as usable knowledge for policy purposes. Think tanks in Hong Kong are scarce and their contribution is minimal. Finally the media is a strong agenda setter and can put pressure on the government to find solutions to specific problems. However, in the case of the printed media, the provision of analytical in-depth reports is lacking especially in the Chinese-language press.

4. Public Participation and Institutions As mentioned earlier, the Hong Kong government has made appropriate institutional changes in an attempt to coordinate actions within and outside government in achieving sustainable development. The model that is adopted in Hong Kong basically mirrors that of the European Union (EU), that is, the establishment of the Sustainable Development Unit within the government structure and an independent Council as advisory body. 4.1 Within the Administration —  Sustainable Development Unit (Division) The SDU was originally established under the Administration Wing of the Chief Secretary for Administration on July 1, 2001 and headed by the Deputy Director of Administration (D4 level). It is currently a division of the Environment Bureau headed by the Deputy Secretary for Environment whose areas of responsibility are: (a) policy matters on the government sustainability assessment system, (b) consultancy on research in the sustainability field, (c) coordination with the Council for Sustainable Development, (d) drawing policies for the management of the Sustainable development Fund, (e) publicity and education (www.susdev.gov.hk/html/ en/su/index.htm)

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This is a type of agency with no administrative autonomy or legal independence but with some managerial autonomy. Judging by the ranking of the head of SDU, the person occupying this post should not only have a solid policy knowledge background but also should be able to relate on equal footing with senior level officials and resolve cross-sectoral issues when necessary. However, the major function of the Unit (now Division) has been that of managing and administering the process of sustainability assessments of government projects and proposals, specifically in applying the CASET tool through training and technical support, and providing an independent interpretation of sustainability evaluation reports submitted to ExCo or the Chief Secretary’s Committee. Its scope of work seems to be restrictive, impeding the SDU’s engagement with the private and non-profit sector and political leaders. For example, nothing is mentioned in its remit of any proactive and strategies the SDU could adopt in further promoting strategic thinking for sustainability within the government so as to change the mindset. There have therefore been questions coming from the LegCo on the real power of SDU in coordinating the work of policy bureaux and departments: for example, whether SDU has sufficient power to monitor the initiatives of bureaux on sustainable development or request them to abandon policies should these not pass the sustainability impact assessment. These questions remain unresolved.

4.2 Outside the Administration — Council for Sustainable Development The CSD was established to provide expert advice on sustainable development strategies and keep the public regularly informed about its work so as to build a better understanding of the concept of sustainable development and to put it into practice through policy design and implementation. This is a legally independent body with managerial autonomy, or what is commonly understood in Hong Kong as a statutory body. Its remit includes: (a) advising government on the priority areas in promoting sustainable development; (b) advising on the preparation

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of the sustainable development strategy for Hong Kong; (c) facilitating community participation in the promotion of sustainable development, though, among others, the award of grants from the Sustainable Development Fund and promote public awareness (www.susdev.gov.hk/ html/en/council/index.htm). The CSD, whose 21 members (including three ex officio policy secretaries) are appointed and report directly to the Chief Executive, is mandated with monitoring progress by government towards sustainable development. Since its establishment in 2003, the CSD has met twentynine times (the last, at the time of writing, was June 7, 2012) and has, surprisingly, been mainly engaged with steering public education through publicity programmes (for example, on greening the built environment, air quality objectives, marine water quality etc.). More recently, the Council produced a broad-brush paper on climate change and energy saving strategies, arguably in response to a public consultation by the government on a climate change strategy in 2010. The Council has also performed research tasks through its subcommittees (strategy subcommittee, education and publicity sub-committee) and its study and support groups (on climate and energy, built environment, air quality, population policy, solid waste, renewable energy and urban living). It also has an online resource center that includes information about school award programmes, funding, overseas and local Agenda 21 etc.). Questions have arisen about the role of the CSD in contrast with that of the Advisory Council on Environment (ACE) which deals with the environmental implications of development in Hong Kong. The ACE is mandated to advise government on appropriate measures to combat pollution and to monitor the implementation of the Environmental Impact Assessment (EIA) ordinance, while the CSD has a mandate that includes not only environmental but also social and economic issues of long-term developmental concern. Its impact seems to have been more in offering a forum for discussion and a source of public education rather than making any significant impact on policy design and implementation.

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5. The Future of Sustainability in Hong Kong Hong Kong stands a good chance of making itself a leading city in sustainability. Present developments show that the notion of sustainable development is not only being considered conceptually but also put into effect in the design and implementation of some policy domains. Moreover, the city itself makes a good case for sustainable development: Hong Kong is small and densely populated; it depends almost entirely on imports for its water and foodstuffs; the economy is open and dynamic. On the face of it, all these factors pose a real challenge to sustained growth. However, if Hong Kong can reduce impacts on the environment and integrate economic growth and social development, then it can set itself up as a model for other cities in the region that have similar populations and vibrant economies but have abundant natural resources. Although at present the HKSAR government’s approach to long-term planning seems reactive rather than proactive, in recent years the administration has made good proposals aiming at integrating, for example, transport policies, energy resources and urban planning. The decision to establish the Air Pollution Taskforce and the Council for Sustainable Development will facilitate joined and comprehensive planning across bureaux and departments. The future implementation of the Susdev 21 study will hopefully provide the framework for this kind of integration. The government seems to have some plans to educate the public and make the concept understood in the community but needs to be more assertive, as changes occur when the public wills them and with their support. In particular, education on sustainability is necessary to shift from the common belief that sustainable development hampers growth and is a cost. The government is beginning to take the lead and to proactively come up with measures that will have a long-term and enduring effect in the development of Hong Kong. The administration may find resistance from the traditional business community which strongly advocates “positive non-intervention,” but to make sustainability a reality in Hong Kong, considering its present state of environmental degradation, the concept must be built into policies and decisions. The government needs to

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develop a strategy — and not only a series of measures — that sets a broad framework to direct and support development. In concluding this chapter, I would argue that putting sustainability at the heart of every government department requires: • •

•

• •

•

•

Creating a powerful body that coordinates policy on sustainable development. Overseeing systems for integrating sustainability in each department’s policies and operations. Each agency may draw up its own strategies for improving sustainability performance. Creating an Environmental Audit committee to consider how policies and programmes of government and non-departmental public bodies contribute to sustainable development. Including sustainable development in the remit of new departments and public bodies. Revisiting appraisal systems that at present evaluate economic, environmental, social and regulatory aspects of policies separately, and consider these aspects together. Create a Charter that would produce an integrated system of impact assessment and appraisal tools in support of Susdev 21. This ideally should cover impact on business, health, environment, special groups etc. Exploring economic instruments such as charges and taxes that will deliver more sustainable development. This puts the “polluter pays” principle in place. Considering shifting taxes from “goods” to “bads” such as air pollution. Subsidies may also have a role to play, like tax relief for “goods.”

A powerful tool for change can be to raise awareness of sustainable development through campaigns that are well managed and sustained. These can cover: energy efficiency, waste reduction, water conservation, links between transport and health, etc. Including sustainable development in school curricula should be the way forward. For education in sustainability, besides awareness, involvement is also necessary. Seeking people’s opinions on how development projects are to proceed and on how

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specific policies are to be formulated is a must. Supporting research and development and measuring this against a benchmark set of good practices ought to come from government fund initiatives. Establishing advisory bodies like the Council for Sustainable Development (CSD) is a good initiative. The Council should not only consist of a body of people drawn from a variety of organizations and interests seeking to build consensus about ways of achieving sustainability, but also monitor progress on sustainability and build consensus on actions to be taken by all sectors to accelerate its achievement. Fifteen years after the establishment of the HKSAR, the moment in Hong Kong is right for firmly anchoring the concept of sustainability to the formulation and implementation of public policy. There are still many challenges ahead but there are also many positive signs. It is anticipated that the very areas of neglect in our present environment and the crises that may emerge from them will continue to act as powerful catalysts for improvement; this can be seen in the air policy domain, for example. Greater mobilization for sustainability coming from actors outside the bureaucracy can be envisioned. A strong leadership coming from the policy networks within the EB and expanding across other bureaux and departments can be anticipated.

References Barron, W., & Steinbrecher, N. (1999). Heading Towards Sustainability? Hong Kong: Center of Urban Planning and Environmental Management, University of Hong Kong. Berger, R., & Lester, S. (1997). Made By Hong Kong. Oxford Mass.: Oxford University Press. Burns, J. (2003), “Policy Stages and Windows: The Policy Process in Hong Kong.” Paper presented at the PPA Staff Seminar (draft, February 19, 2003). Chan, Q. (2001, April 6). “Dumping fees to be introduced in landfills,” South China Morning Post.

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Chan, Q., & Cheung C. F. (2003, May 5).“Public views sought on Hong Kong development,” South China Morning Post. Chief Secretary for Administration’s Office. (2001). Chapter presented to the Panel on Environmental Affairs, “Follow Up — Proposed Establishment of the Sustainable Development Unit,” Chapter No. CB (1) 577/00-01, 09-022001, Hong Kong Special Administrative Region, Hong Kong. Commission for Strategic Development (2000), Bringing the Vision to Life. Hong Kong Special Administrative Region, Hong Kong. Cook, R., Foster, K., & McHugh, F. (reporters). (1999, January 31). South China Morning Post, Post Magazine Environment Special, Post Magazine. De Torre, J. (1999), Bioethical Questions. Manila: University of Asia and the Pacific Foundation, Inc. Department of the Environment, Transport and the Regions. (1999). A Better Quality of Life. A strategy for sustainable development for the United Kingdom. United Kingdom: UK Government Dimbleby, J. (1997). The Last Governor: Chris Patten and the Handover of Hong Kong. London: Little, Brown and Co. Ehrlich, J. (2000, May 14). “A daunting task in the air,” South China Morning Post. Environment and Food Bureau, Press Release, May 11, 2000, Hong Kong Special Administrative Region, Hong Kong. Environment and Food Bureau, Press Release, February 22, 2001, Hong Kong Special Administrative Region, Hong Kong. EPD. (1989). Environmental Protection Department, White Chapter Pollution in Hong Kong: A Time to Act. Hong Kong: Hong Kong SAR Government. EPD. (1996). Environmental Protection Department, Sustainable Development: A Green Future. Hong Kong: Hong Kong SAR Government. ERM. (1998, 1999). Environmental Resources Management on behalf of the HKSAR Government, Sustainable Development in Hong Kong for the 21st Century. Public Consultation Report. Hong Kong: Environmental Resources Management Ltd.

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Farri, U. (1997). “Limmat Foundation Annual Report 1997 and 1998,” Zurich: Limmat Foundation. Francesch-Huidobro, M. (2011). “Governance of Climate Change in Coastal Cities: the Example of Hong Kong,” in Climate Adaptation and Flood Risk in Coastal Cities, ed. Aerts, J., Botzen, W., Bowman, M., Ward, P., & Dircke, P.. Oxford: Earthscan Climate from Routledge. Ch 12. Francesch-Huidobro, M. (2012). “Institutional Deficit and Lack of Legitimacy: the Challenges of Climate Change Governance in Hong Kong,” Environmental Politics 21(5): 791 – 810. Hills, P., & Kwok, V. (2000). Environmental Education for a Sustainable Future. Hong Kong: Center of Urban Planning and Environmental Management, University of Hong Kong. Howlett, M., & Ramesh, M. (1995). Studying Public Policy. Ontario: Oxford University Press. Inglehart, R. (1990). Culture Shift in Advanced Industrial Society. Princeton. NJ: Princeton University Press. Lai, O. K. (1996). “The Socio-Politics of Community Participation in Territorial Planning: The Challenge of Hong Kong Governance towards the 21st Century,” in Planning Hong Kong for the 21st Century, ed. Yeh, A. Hong Kong: Center of Urban Planning and Environmental Management, University of Hong Kong. Lee A., & Lau, F. (1998). Survey on Community Attitudes to the Environment 1997 – 98, Social Sciences Research Center, Public Opinion Programme (POP), University of Hong Kong, Hong Kong. Legislative Council Panel on Environmental Affairs and Health. “Dioxin Review.” LC Chapter Nos. CB (2) 1875/99-00 (01); CB (2) 1845/9900 (01) – (05); CB (2) 1890/99-00 (01) – (02), Hong Kong Special Administrative Region, Hong Kong. Legislative Council Panels on Planning, Lands and Works and Environmental Affairs. “Study on Sustainable Development in Hong Kong for the 21st Century.” LC Chapter No. CB (1) 533/99-00(1), Hong Kong Special Administrative Region, Hong Kong.

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Lindblom, Ch. (1977). The Policy-Making Process. New Haven: Yale University Press. Loh, C. (1998). “Alternative Policy Address: Hong Kong: the Once and Future City,” Hong Kong: Citizens Party,. Loh, C., (1999). “Alternative Policy Address: Hong Kong: A Sustainable World City in the Millennium,” Hong Kong: Citizens Party. Loh, C. (2000). “Response to Second Stage Consultation SUSDEV 21,” Hong Kong: Citizens Party. Ma, S. H. (1998). “An Analysis of the Advisory Mechanisms to the Hong Kong Government,” Unpublished MPA Dissertation, Department of Politics and Public Administration, University of Hong Kong, Hong Kong. Mottershead, T. (2000). “Background Brief for Proposed Sustainable Communities and Local Agenda 21 Seminar in Hong Kong.” Hong Kong: Hong Kong Sustainable Development Forum. Ng, M. K. (2000). Views and Comments on Recommendations of SUSDEV 21. Hong Kong: Center of Urban Planning and Environmental Management, University of Hong Kong. Schmitter, P. C. (1982). “Reflections on Where the Theory of Neo-Corporatism May Have Gone, and Where the Praxis of Neo-Corporatism May Be Going,” in Patterns of Corporatist Policy-Making, ed. Lehmbruch, G., & Schmitter, P. C.. London: Sage. Scott, I. (1999). “The Disarticulation of Hong Kong’s Post-handover Political System” (draft) for the Asian Journal of Public Administration, Department of Politics and Public Administration, University of Hong Kong, Hong Kong. Scott, I. (2002). “The Disarticulation of Hong Kong’s Post-Handover Political System,” The China Journal No. 43, January: 29 – 53. Smith, M. (1990). “Pluralism, Reformed Pluralism and Neopluralism: The Role of the Pressure Groups in Policy-Making,” Political Studies 38: 302 – 22. Tacey, E. (2000, May 14). “Environment boss comes clean,” in South China Morning Post.

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Websites Hong Kong Institute of Education (HKIED) modules on Sustainable Development, www.ied.edu.hk/sdhk/wp/. Sustainable Development Hong Kong www.gov.hk/en/residents/environment/ sustainable/dev.htm. Sustainable Development Division (now Unit) www.susdev.gov.hk/html/en/su/ index.htm. Sustainable Development Division. Tasks www.susdev.gov.hk/html/en/su/sus. htm. Sustainable Development Division. Last paper published 2005 www.susdev. gov.hk/html/en/su/public.htm. Sustainable Development Division. Last consultancy study 2008. www.susdev. gov.hk/html/en/su/consult.htm. Sustainable Development Division. Monthly reports. www.susdev.gov.hk/html/ en/su/safindings.htm.

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Part II Participation in Politics

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6 Increased Pluralization and Fragmentation

Party System and Electoral Politics and the 2012 Elections Ngok MA

1.

Introduction

Twenty years after popular elections were first introduced into the Hong Kong legislature, the Hong Kong party system is increasingly pluralized and fragmented. The 2012 Legislative Council (LegCo) election brought about even greater fragmentation in the party system in Hong Kong, with both the pro-democracy camp and the conservative camp suffering from further fragmentation. This chapter recapitulates the changes in the party system in Hong Kong since the 1990s. It shows that the trend was for increased fragmentation after 1997, mostly due to the effect of the current electoral system. The gradual increase in district magnitude in proportional representation (PR) since 1998 drove both the conservative camp and the pro-democracy camp to split into more groups, leading to an unprecedented number of candidate lists in the 2012 election, and a much more fragmented party system. The protracted democratization process in Hong Kong and the logic of the electoral system have made it difficult for the pro-democratic opposition to maintain a cohesive bloc. The fragmentation effects reached a climax in the 2012 LegCo elections. This increased fragmentation of the party system is destined to have adverse effects on future party development and the executive-legislative relations in Hong Kong.

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2. Obstacles to Party Development in Hong Kong The under-development of the party system in Hong Kong has been well documented. By the 2010s, parties in Hong Kong were still weak in terms of overall membership, mobilization power, and party identification among the population. Lau and Kuan argued that Hong Kong’s “stunted” party system grew up in the 1980s and 1990s, when attitudes to democratization and the Chinese government formed the most important basis of cleavage.1 This “foundation moment” factor pre-determined that political parties in Hong Kong were weak in appealing to various social-economic demands of the citizens, which disabled them from securing solid organizational support from society. Ma (2007) summarized various obstacles to party development in Hong Kong.2 First and foremost, the central government in Beijing, and hence the Hong Kong government, did not want to see vibrant competitive multiparty politics as the mainstay of Hong Kong politics. The Hong Kong government generally adopted an anti-party stance in governance, and has done little to foster political party development after 1997. Twenty years after popular elections for the LegCo were introduced, there have been almost no political reform measures aimed at the promotion of the development of party politics. The overall political structure and various institutional arrangements are also unfavorable to party development. The Chief Executive Ordinance ruled out a party member serving as the Chief Executive. While the Chief Executive held extensive appointment powers, it was very rarely that party politicians would be appointed to key executive positions. With the expansion of the Principal Officials Accountability System (POAS) in 2008, by setting up posts of deputy secretaries and political assistants, more party politicians were appointed to office, as

1 Lau Siu-kai and Kuan Hsin-chi, “Partial Democratization, ‘Foundation Moment’ and Political Parties in Hong Kong,” The China Quarterly 163 (2000): 705–20; Lau Siu-kai and Kuan Hsinchi, “Hong Kong’s Stunted Political Party System,” The China Quarterly 172 (2002): 1010–28. 2 Ma Ngok, Political Development in Hong Kong: State, Political Society and Civil Society. Hong Kong: Hong Kong University Press, 2007.

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deputy secretaries or political assistants. The proportion, however, was still minimal. The very few party members who serve as government officials represent the government’s positions; they do not represent their own parties or attempt to implement their party platforms in office.3 As the major power positions are not open to public contestation, the Hong Kong political setup lacks a major incentive for people to join political parties. While political parties flourished in the period 1992–97 in Hong Kong, mostly due to the introduction of popular elections into the LegCo in 1991, there was little progress in party development after 1997. The design and change of the electoral system is definitely a major factor for the under-development of the party system in Hong Kong. It is difficult to gauge if the change to a proportional representation system (PR) in 1998 was originally aimed at weakening party development. The original motive for a switch to PR should be to guarantee the representation of the pro-Beijing parties, who before 1997 only got a minority share of the vote, in the LegCo popular elections. For Beijing, the first-past-the-post system (FPTP) used in the 1995 elections was too beneficial to the more popular democrats.4 The use of PR, which made sure that smaller parties with a minority share of the vote would get representation, sought to guarantee that the pro-Beijing forces would get their fair share of representation in the post-1997 popular elections. However, the introduction of PR had profound effects on party development in Hong Kong. It first led to infighting within the Democratic Party (DP) in the 2000 election and beyond.5 It also created a strong

3 These include, from 2008 to 2012, two DAB members as Deputy Secretaries, one LP member, one NPP member and two DAB members as Political Assistants. 4 Ma Ngok and Choy Chi-keung, Political Consequences of Electoral Systems: The Hong Kong Proportional Representation System 《選舉制度的政治效果：港式比例代表制的經驗》. Hong Kong: City University of Hong Kong Press, 2003, 23–30. 5 Ma Ngok, “The Decline of the Democratic Party in Hong Kong: The Second Legislative Council Election in HKSAR,” Asian Survey 41(4) (2001): 564–83; Ma Ngok, “Factionalism in the Democratic Party and the 2000 Election,” in Out of the Shadow of 1997: The Legislative Council Election in Hong Kong Special Administrative Region, ed. Kuan Hsin-chi, Lau Siu-kai and Timothy Wong Ka-ying, 125–59. Hong Kong: Chinese University Press, 2002.

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divisive effect among the pro-democracy parties.6 The adoption of PR more or less forestalled the formation of a strong opposition party, since the Duvergerian effect quickly led to strong centrifugal tendencies within the pro-democracy camp. At the beginning, the strong coordination within the pro-Beijing camp minimized its fragmentation. But as the district magnitude of the PR constituency gradually increased (see below),7 the pro-Beijing camp also saw more fragmentation after 2004. Table 6.1 shows the distribution of seats among the parties in the Hong Kong LegCo since 1998. First of all, it shows that the number of independents was rather steady over the years, taking up about one-quarter of the seats in the legislature. Secondly, both camps show remarkable and consistent fragmentation over the years. In 1998, the DP, DAB and LP combined for 32 seats, more than half of the LegCo. By 2012, these three major parties combined for only 22 seats, barely over 30% of the LegCo seats. There is a proliferation of small parties/political groups who take up two to five seats, making the LegCo more fragmented than ever in 2012. The functional constituency (FC) system and the election committee method that were used to elect some legislators, before 2004, and the CE, are electoral designs that have severely weakened party development. The FC system and the election committee method share similar characteristics: (a) they are both mostly sector-based forms of representation; (b) representation is heavily weighted in favor of the politically-influential business and professional groups; (c) they have a small number of electorates. As Kuan argued, the election committee form of election gave rise to behind-the-scenes, personal politics liable to corruption and manipulation.8 The small number of electorates of these two electoral

6 Choy Chi-keung, “The Divisive Effect of the Proportional Representation System,” in Out of the Shadow of 1997? 99–123. 7 In the jargon of election studies, “district magnitude” refers to the number of seats elected per constituency in an electoral system. For example, if a constituency returns five candidates, the district magnitude is five. 8 Kuan Hsin-chi, “Elections without Political Clout,” in Kuan Hsin-chi et al. eds., Power Transfer and Electoral Politics: The First Legislative Election in the Hong Kong Special Administrative Region (Hong Kong: Chinese University Press, 1999), p. 293.

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forms means that candidates do not need a political party for mass mobilization and campaigning. The dominance of sectoral interests in these representation forms also means that comprehensive party platforms are not needed for wooing votes, as the voters would focus mostly on sectoral interests and issues. Sometimes party platforms stand in the way of catering for narrow sectoral interests. The FC also has an inhibitive effect on party growth in Hong Kong. When many of the FC candidates chose to run as independents, the FC system more or less “guaranteed” about one in four LegCo members were sitting as independents from the 1990s, as shown in Table 6.1. Party growth was further inhibited after 1997, since the LegCo had weaker influence on policy under the executive-dominant system stipulated in the Basic Law than it did under the colonial administration. Hong Kong’s LegCo was only half popularly-elected, with the pro-democracy opposition in a permanent minority position. With weak policy influence, most parties turned their attention to checking the government, criticizing government misdeeds and financial control, which in turn led to a more strained executive-legislative relations.9 After 1997, Hong Kong voters witnessed frequent bickering and partisan struggles among parties, with the party struggles not really bringing about policy changes. It is much easier for the voters to see the negative sides of party politics in Hong Kong, as they have never had the chance to see parties fulfilling their “party in government” function in the hybrid regime in Hong Kong. The protracted process and still limited nature of democratization means that the major functions of political parties are not effectively played out, leading to their diminution.10 Table 6.2 shows the result of the three waves of Asian Barometer surveys conducted in 2001, 2007 and 2012 respectively, concerning citizens’ trust

9 Ma Ngok, “Executive-Legislative Relations: Assessing Legislative Influence in an ExecutiveDominant System,” in The First Tung Chee-hwa Administration: The First Five Years of Hong Kong Special Administrative Region, ed. Lau Siu-kai, 349–74. Hong Kong: Chinese University Press, 2002. 10 Ma Ngok, Political Development in Hong Kong: State, Political Society and Civil Society. Hong Kong: Hong Kong University Press, 2007, 136.

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Table 6.1 Distribution of seats in LegCo, 1998–2012 Year Pro-Democracy Camp

1998

2004

2008

2012

DP

13

12

9

8

6

CP

N/A

N/A

N/A

5

6

Labour Party

N/A

N/A

N/A

N/A

4

People’s Power

N/A

N/A

N/A

N/A

3

LSD

N/A

N/A

N/A

3

1

Article 45 Concern Group

N/A

N/A

4

N/A

N/A

3

2

1

1

N/A

Confederation of Trade Unions

N/A

2

1

1

N/A

Other pro-democracy groups

2

2

3

4

4

Total

18

18

18

22

24

DAB

9

11

10

10

13

FTU

N/A

1

3

4

6

10

8

10

7

5

New People’s Party

N/A

N/A

N/A

N/A

2

Economic Synergy

The Frontier

Pro-Beijing Camp

2000

Liberal Party

N/A

N/A

N/A

N/A

3

Hong Kong Progressive Alliance

4

4

N/A

N/A

N/A

Other Pro-Beijing groups

1

2

1

3

3

24

26

24

24

32

Independents

Total

18

16

18

14

14

Total Seats

60

60

60

60

70

in various major political institutions.11 The results show that throughout the period, though there was a consistent rise in the trust for political parties, the level of trust for political parties remained the lowest among all the political institutions. Throughout the three surveys, about half of the respondents claimed that they did not trust political parties.

11 The Asian Barometer is the longest, most systematic, and most comprehensive cross-national survey in Asia. With surveying teams in seventeen different polities, the project has conducted longitudinal surveys with the same battery of core questions on values and attitudes on democracy and citizens’ actions. See www.asiabarometer.org.

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Table 6.2 Trust in major institutions, 2001–12 2012 survey

2006 survey

2001 survey

Yes

No

Yes

No`

Yes

No

Chief Executive

61.7

29.0

71.5

18.3

N/A

N/A

Courts

81.5

9.5

78.0

9.4

69.6

15.3

Chinese Government

57.1

32.5

67.1

21.1

55.6

32.5

Hong Kong Government

67.4

24.9

74.0

17.3

49.3

41.2

Legislative Council

50.9

35.4

57.1

24.9

51.5

33.0

Political parties

38.8

47.9

26.7

47.0

22.0

55.0

Civil servants

74.4

13.6

64.6

19.9

59.5

26.4

People’s Liberation Army

62.6

15.8

61.6

12.1

62.4

13.9

Police

82.6

10.5

84.4

8.6

N/A

N=

1,207

849

N/A 811

3. Changed and Unchanged Cleavages Although the party system became increasingly pluralized and fragmented after 1997, the dominant political cleavage largely remained unchanged. While the Hong Kong democrats were on relatively good terms with the Chinese government in the 1980s, their participation in the 1989 Beijing democracy movement made the Chinese government see the democrats as “subversives” who were trying to overthrow the mainland one-party rule. Since the 1991 election, the dominant political cleavage in Hong Kong has been between pro-democracy politicians/parties and pro-Beijing ones. The cleavage was hardened by the political struggle around Governor Chris Patten’s political reform package in 1992–94, and the change of the electoral system to first-past-the-post (FPTP) in 1995.12 The fallout between the Chinese and British governments over the Patten reform led to

12 Hong Kong adopted a “double-seat, double-vote” system in 1991. Hong Kong was divided into nine constituencies, with each returning two legislators. Each voter could vote for two candidates on his/her ballot, with the top two vote-getters winning the seats. It was changed to the first-past-the-post system under the Patten reform in 1995.

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immense political pressure from Beijing. Politicians who supported Patten were seen as unpatriotic and anti-China, while those who supported the Chinese government and opposed the Patten reform would be seen as antidemocratic. Politicians were forced to take sides and could not sit on the fence. The political cleavage was thus clearly between the pro-democracy candidates and the pro-Beijing conservatives. The logic of the FPTP also drove the two camps to coordinate their forces and try to field only one candidate per district to prevent vote-splitting in the 1995 election. The 1995 election thus saw a face-off between the pro-democracy and proBeijing candidates in many one-on-one contests. The China factor somewhat faded in the early post-1997 era, since there was relatively little ostensible intervention from Beijing in local politics. After 500,000 people demonstrated to oppose national security legislation on July 1, 2003, however, the issue of full democracy for Hong Kong quickly became top of the political agenda. The key campaign issue in the 2004 election was universal suffrage for the 2007 chief executive and 2008 LegCo elections. After that, the political scene became clearly divided between pro-Beijing conservatives, who followed Beijing’s line of a slow transition to democracy, and the democrats who wanted full democracy as soon as possible. The two camps also differed in terms of their attitude towards human rights, Hong Kong’s relations with China, and political issues such as rule of law, civil liberties, etc. In general, the pro-democracy groups believe in western values of democracy, freedom and rule of law, and resist intervention from China. The pro-Beijing camp is more conservative on these values. The pro-democracy groups positioned themselves as the opposition, and were more critical of government policy. The pro-Beijing conservatives, out of political loyalty for Beijing, are usually supportive of government policy. In both the pro-Beijing camp and the pro-democracy camp, there was more internal competition after 2000. Table 6.3 shows the number of lists fielded in the geographical constituencies in the LegCo elections since 1998. The gradual increase in district magnitude (DM) encouraged small and splinter parties to run for election, since the percentage of votes needed to win a seat declined with the increase of DM. On the pro-Beijing side,

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Table 6.3 Number of lists in geographical elections, 1998–2012 1998 Pro-Democratic

2012

2

2

2

4

5

2

2

3

4

4

Kowloon East

1

1

3

4

4

New Territories West

4

5

5

8

8

Hong Kong Island

3

4

2

5

8

12

14

15

25

29

2

2

1

3

5

Kowloon West

2

1

1

3

2

Kowloon East

1

1

2

2

2

New Territories West

2

2

3

3

6

New Territories East

2

4

2

3

6 21

Sub-total

9

10

9

14

Hong Kong Island

4

7

3

4

4

Kowloon West

1

0

2

5

3

Kowloon East

1

2

0

0

3

New Territories West

5

1

4

3

2

New Territories East Sub-total Total

2008

Hong Kong Island

New Territories East

Independents

2004

Kowloon West

Sub-total Pro-Beijing

2000

2

2

2

2

5

13

12

11

14

18

34

36

35

53

67

in 1998 and 2000 the Democratic Alliance for the Betterment of Hong Kong (DAB) was the chief force representing the conservatives. After 2004, there were two trends of development. The Federation of Trade Unions (FTU), the pro-Beijing trade union federation, tried to field its own lists, instead of putting its weight behind DAB. The 2004 election marked the first time the FTU fielded a separate list from the DAB in Kowloon East. In 2008 and 2012, the FTU fielded two and four lists respectively. The second trend was that there were more moderate conservative candidates, catering for middle-class moderate voters. These included Regina Ip and her New People’s Party (NPP) since 2008, candidates such as Priscilla Leung and Paul Tse in 2008 and 2012, and various rural leaders in 2012. The major

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pro-business party, the Liberal Party, is invariably hesitant in participating in popular elections. After their election setback in 2008, several members left the LP to form the Economic Synergy. Different political groupings with different voter base thought that by capturing the conservative votes that belonged to their own segment of the spectrum, they stood a chance of getting elected with a greater district magnitude. This created a splintering effect within the pro-Beijing camp. The split within the pro-democracy camp was even more obvious. The pro-democracy camp had never been a unified force since the democracy movement started in the 1980s. The 1995 election saw a much better coordination of the pro-democracy forces, since they needed to prevent vote-splitting under FPTP. They managed to field only one pro-democracy candidate in 16 out of 20 constituencies. After PR was introduced in 1998, the pro-democracy camp gradually split into more and more groups and lists. The largest pro-democracy opposition party, the Democratic Party (DP), first experienced factional infighting starting from 1998, with some radical elements and disgruntled members leaving the party from 2000 to 2004. With the gradual decline of DP after 2000, other new prodemocracy parties tried to fill the political void, creating a more pluralistic spectrum. In 2006, a group of barristers and professionals formed the Civic Party (CP), which (initially) was inclined to a more moderate position to attract middle-class and professional supporters. A group of more radical democrats, including some former radical-wing DP members, formed the League of Social Democrats (LSD) in 2006. The LSD underwent a serious split in 2010, with former Chairman Raymond Wong leaving to form the People’s Power party. The pro-democracy camp underwent a serious split in 2010, over different strategies for the democracy movement. In 2010, the democrats were deeply divided over how to force the government to promise universal suffrage, or at least put forward a more progressive reform proposal for the 2012 CE and LegCo elections. The CP and LSD joined hands to instigate the “de facto referendum” in a bid to maximize public

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opinion pressure.13 The DP and other moderate democrats disagreed and refused to join the “de facto referendum,” forming a new Alliance for Universal Suffrage (AUS) to try to initiate dialogue with the central government. The DP and AUS in the end struck a compromise deal with central government representatives, with many of them supporting the revised government proposal which offered minimal democratic progress. This entailed vehement criticism from the radical wing and many liberal civil society groups, who saw DP as betraying the democratic cause and collaborating with Beijing and the Hong Kong government. After the 2010 political reform episode, the pro-democracy camp was deeply split between the moderate democrats who had refused to join the “de facto referendum” and voted for the government proposal in 2010, and those who supported the “de facto referendum” and voted against the government proposal. Following this split, other new pro-democracy parties/groups were formed, including the Labour Party and the NeoDemocrats in 2011. By 2010, there were two sub-cleavages within the two major political camps. On the pro-Beijing side, the DAB, the largest pro-government party, was the chief force representing the traditional pro-Beijing position. They could largely be counted on to support the central government and the SAR government. There were other conservative groups who tried to take a more pragmatic and moderate line, which might choose to oppose government policy if there was clear opposition to it in public opinion or when “core values” were at stake. These included the Liberal Party, the New People’s Party, and some other independent conservatives (e.g., Paul Tse). The pro-democracy camp was divided between those who supported the 2010 government reform (mostly represented by the DP and the ADPL), and those who did not. The latter was further divided between the more radical groups such as the People’s Power and the LSD, and other

13 Ma Ngok, “Hong Kong Democrats Divide,” Journal of Democracy 22(1) January (2011): 54–67.

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more “mainstream” democrats such as CP, the Labour Party and other smaller pro-democracy groups. This change in the political spectrum gave rise to unprecedented chaos in campaigning for the 2012 elections.

4. When PRLR Becomes SNTV The Hong Kong PR system adopted a largest remainder system and the Hare quota. Back at its inception in 1998, the district magnitude of the Hong Kong PR was relatively small, ranging from three to five. As the total number of directly elected seats gradually increased, and the boundaries of the constituencies remained unchanged, the DM gradually increased from five to nine in 2012. The 2012 election was also special in the sense that ten new seats were added to the LegCo, including five directly-elected seats and five new District Council (II) FC seats. The new seats created extra opportunities for new challengers, encouraging more small parties and independents to run in the election. The larger district magnitude means that the effective threshold for winning a seat is lower, creating a splintering effect. In addition, since five LegCo incumbents have chosen to run in the new District Council (II) FC in 2012, it also created new open seats on the direct election battlefront, encouraging more new participants. These parameters for the Hong Kong PR system brought about a fragmentation effect in various ways. The Largest Remainder and Hare quota are both parameters that favor small parties.14 They make it difficult for larger parties to win the extra seat. The problem is compounded by the small-to-medium DM. With an average DM of about five to six, it usually takes at least 10–15% of the vote for a list or candidate to win a seat. It is usually quite difficult for parties to get enough votes to win a second seat by dint of their remainders. Strategically they will be better served if they split into different lists to maximize their chances of winning extra seats.

14 Arend Lijphart, “Degrees of Proportionality of Proportional Representation Formula,” in Electoral Laws and their Political Consequences, ed. Bernard Grofman and Arend Lijphart, 170–79. New York: Agathon Press, 2003.

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This of course created extra centrifugal forces both within parties and within the two camps. Because of the aforesaid institutional effects, we have witnessed in past elections that parties, candidates and voters in Hong Kong have behaved in ways resembling those under the single-non-transferable vote (SNTV) system. These strategies/behaviors included: (1) Large parties splitting into different lists to try to win extra seats (2) Factionalism within large parties (3) Parties undertake strategies to induce strategic voting and/or vote division (4) Visible strategic voting behavior on the part of the voters, including deserting “runway” candidates.15 The Democratic Party (DP) was the first party to experiment with splitting of lists in 2000. Since then it has tested different means for effective vote division or inducing strategic voting, and discovered that vote division by “responsibility zones” for different candidate lists was the most effective method. Since 2000, the DP has fielded more than one list in different constituencies, with mixed results. The DP also was the first party to experience factionalism, partly due to disputes over candidate ranking under PR. This started off a series of splits within the party since 1998, severely damaging its solidarity and strength.16 On the pro-Beijing side, since 2004 the FTU has been trying to field its own lists, partly because of a disagreement with DAB over labor policies. The year 2012 marked the first time DAB split into different lists in different constituencies to try to maximize the seats it might win. Studies on strategic voting have been overwhelmingly focused on single-member first-past-the-post (FPTP) systems and the single-nontransferable vote system (SNTV) formerly adopted in Japan and Taiwan.

15 Ma and Choy, Political Consequences of Electoral Systems, 155–66, 172–87. 16 See Ma, “Factionalism in the Democratic Party and the 2000 Election.”

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Strategic voting, here defined as the behavior of “voting for a less-preferred candidate that one believes is stronger, rather than a more-preferred (or first-choice) candidate who is weaker,” 17 is widely assumed to be weak in PR systems because of its proportional allocation of seats according to vote shares. Duverger (1955) was the first to claim that “sophisticated voting” would not happen under PR. However, Leys (1959) and Sartori (1968) thought that as long as voters tried to make a calculating use of their votes, strategic voting will still exist under PR.18 Cox claimed that strategic voting will exist in PR in two forms: voters will give up on hopeless lists, or desert leading lists that have “excess” votes, and cast their votes for marginal candidates or lists.19 The experience of Hong Kong showed that strategic voting could exist in PR, especially within Hong Kong’s peculiar institutional context. Fieldwork observation showed that, since 1998, various parties/candidates have tried to induce strategic voting. They tried to lure voters to desert “hopeless” lists, or claimed that some leading candidates have more than enough votes to win, thus voters should divert their votes from them.20 Again these strategies had mixed results. The voters might not believe in the election publicity. Even if they want to vote strategically, they may have their own strategic calculations. A survey after the 2000 LegCo election estimated about 5% of voters voted strategically in the 2000 election.21 There are several structural factors that create extra incentives for strategic voting in Hong Kong, making it different from other

17 Gary Cox, Making Votes Count: Strategic Coordination in the World’s Electoral Systems. New York: Cambridge University Press, 1997. 18 Maurice Duverger, Political Parties. New York: Riley, 1955; Colin Leys, “Models, Theories and the Theory of Political Parties,” Political Studies 7 (1959): 127–46; Giovanni Sartori, “Political Development and Political Engineering,” in Public Policy, ed. John Montgomery and Albert Hirschman, 261–98. Cambridge: Cambridge University Press, 1968. 19 Cox, Making Votes Count. 20 Ma and Choy, Political Consequences of Electoral Systems. 21 Ma Ngok, “Strategic Voting in the 2000 Legislative Council Elections: An Empirical Study. Hong Kong Institute of Asia-Pacific Studies,” Occasional Paper No. 132, 2002.

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parliamentary democracies that adopt PR. Firstly, Hong Kong’s elections do not bring about a change in government. The popular elections only determine the composition of half of the LegCo. This takes away one of the biggest incentives of voting for large parties common in PR democracies, which is to help one’s favorite party to become the governing party. When Hong Kong voters understand that the government or the legislative majority will not change with their vote, they are more inclined to select by calibers and personalities of individual candidates than by party platforms. This has reinforced the tendency of candidate-centered voting in Hong Kong, which in turn also weakens party development. Secondly, the small DM lowers the proportionality of the system. It is possible that the changes of 3–5% of the vote will not affect a large party’s seat gain, creating incentives for voters to divert their votes from “must win” candidates to marginal candidates. The small DM also means that the voters have better information about the relative chances of different candidates. The splitting of lists by major parties, induced by the PRLR system, drove more voters to think about how to use their votes to maximize the seat obtained by their favored party/parties. All in all, the PRLR system in Hong Kong created SNTV-like effects. These effects reinforced the personalistic politics in Hong Kong, and weakened party development. Since vote division by responsibility zones is a preferred strategy, major parties (most notably DAB and DP) would focus on constituency services to enhance their capacity for vote division. The system also gave rise to factional politics and created disincentives for voters to vote for large parties. All these hampered party development in Hong Kong.

5. The 2012 Election and the New Party System The 2012 election saw an unprecedented number of candidate lists in the geographical elections. A total of 67 lists competed for the 35 seats, an average of 1.9 lists per seat. For both the pro-democracy and proBeijing camps, the number of lists in each district exceeded the seats that

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could possibly be won by their respective vote shares. This represented a failure of strategic coordination in both camps. In the pro-democracy camp, several major parties/political groups fielded at least one list in every constituency. The DP fielded a total of eight lists in five districts, choosing to split lists in two constituencies. The CP and People’s Power both fielded one list in each constituency (five lists each). Other parties fielded a list in most districts, including the LSD (four lists) and Labour Party (three lists). Other pro-democracy minor groups and independents took up a total of other eight lists. As most expected the democrats’ vote share to not exceed 60%, giving them at most 21 out of the 35 seats in proportion under PR, this total of 33 lists in five districts means that quite a few of them were going to lose out. On the pro-Beijing side, the 2012 election marked the first time when the DAB experimented with splitting of lists in three districts, fielding a total of nine lists in five districts. The FTU fielded one list in four districts (four lists). The other more significant conservative forces included the Liberal Party (two lists), New People’s Party (two lists), rural conservatives (three lists), and other smaller conservative groups and independents (six other lists). Again if we go by the expected vote share, this total of 26 lists, competing for around 40% of the vote share for the conservative camp, means that quite a few of the conservatives would lose out. This proliferation of lists signified a pluralization of the political spectrum at both ends, and competition within both camps. In the prodemocracy camp, it was first and foremost divided between the negotiating democrats (led by DP),22 and the radicals (led by People’s Power and LSD). The main thrust of the People’s Power’s campaign was to attack the DP for betraying the democrats in 2010. The CP and Labour Party were both opposed to the 2010 political reform deal, but did not adopt a critical

22 The Association of Democracy and People’s Livelihood (ADPL) also participated in the negotiations and voted for the government proposal in 2010. However, in the 2012 election it only had one list in the geographical constituencies and was not a major force.

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position towards the DP during the campaign. Some other democrats also attacked the DP relentlessly over the 2010 compromise, including the NeoDemocrats and some other independents such as Mandy Tam and Mak Yip Sing. A secondary sub-cleavage within the pro-democracy camp was one of class divisions, with some parties/groups adopting a clear pro-labor position. These included the Labour Party, the Neighbourhood Workers Service Centre (NWSC), the LSD and the ADPL. The pro-Beijing camp also became more diversified in their appeals. The DAB was still the flag bearer of the pro-Beijing forces. The FTU ran on a mostly pro-labor and largely non-political platform. The LP, NPP and some other conservatives (e.g., Scarlett Pong and Priscilla Leung) tried to appeal to moderate middle-class voters. They tried to portray themselves as less diehard loyalists or tried to disguise their pro-Beijing positions, by projecting a more professional and moderate image. While some of these conservatives still enjoyed strong support from the pro-Beijing organizations (most notably Paul Tse and Priscilla Leung), their splitting was designed to attract a small proportion of conservative or middle-ofthe-road voters. Even with this pluralization in both camps, the 2012 election was one of the most polarized campaigns in recent years. Hong Kong has seen a marked rise of anti-China sentiment, brought about by the increased political and economic influence of China on Hong Kong, heightened sensitivity and skepticism about the impacts of the influx of mainland tourists and capital, and the deterioration of human rights conditions in mainland China. Since 2003, there have been signs of increased intervention from Beijing, represented by various maneuvers of the Central Government Liaison Office (CGLO) in local politics. The election of C. Y. Leung, widely suspected to be an underground party member of the Chinese Communist Party, as chief executive in March 2012, brought these worries to a head. Many people in Hong Kong, especially the prodemocracy groups and their supporters, worried that Leung’s reign would be one of increasing control from Beijing, at the expense of civil liberties and rule of law in Hong Kong. As a result, the democrats were almost

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unified in their campaign themes in the 2012 election, namely to oppose more intervention from Beijing so as to defend the “core values” of Hong Kong. During the 2012 election campaign, the major campaign issues included attitude to increased intervention from Beijing, civil liberty issues, and the controversial national education curriculum.23 The pro-democracy candidates spared no pains to expose the pro-Beijing political positions of the conservative candidates. In particular, they tried their best to label the “independents” or other moderate conservatives such as Paul Tse and Scarlett Pong as CGLO’s protégés and expose their conservative stands. Throughout the electoral campaign, in almost all the broadcast election forums there were only two central themes. Firstly, the democrats mostly tried to expose and attack the unpopular political positions of the proBeijing candidates, such as forcing them to defend Beijing’s human rights record and the unpopular national education curriculum, and accusing them of helping CGLO to control Hong Kong. The second theme was the mutual criticisms among the democrats. This entailed the People’s Power (PP) and some other democrats criticizing the DP for betraying the democratic cause by negotiating with CGLO officials in 2010. The DP rebutted this by accusing the PP of being CGLO’s spy to divide the democrats, as the PP accepted donations from pro-Beijing figures. The election campaign saw few serious discussions of political or policy issues; most election forums degenerated into noisy quarrels and bitter accusations between rival politicians. As far as voting behavior was concerned, there was much discussion about strategic voting or “vote division” strategies on the Internet and the

23 Since the rally on July 1, 2003, there has been pressure on the Hong Kong government to adopt a curriculum of national education in schools. Beijing considered many Hong Kong people to be not “patriotic” enough after they demonstrated such strong opposition to the national security legislation. The Hong Kong government hence prepared a “national education” curriculum, due to be launched in all schools in autumn 2012. The summer of 2012 saw a massive movement of opposition to this curriculum, initiated by students and parents, calling for its abrogation. The democrats and the opposition groups dismissed the curriculum as an attempt of the government to “brainwash” the young generation.

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mainstream media. In most of the constituencies, there were too many prodemocracy candidate lists that somebody had to lose. Other than diehard supporters of selected parties or candidates, there was often a segment of pro-democracy voters whose paramount concern was to maximize the seats obtained by the pro-democracy camp. They tried on their own to devise means to distribute their votes effectively, within their families or friend circles, among different pro-democracy lists. It was generally believed that the pro-Beijing camp could do a much better job at vote division, because they had strong organizational networks that could effectively mobilize their loyal supporters and apportion different organizational votes to different candidate lists. There was also much media discussion about how DAB and DP distributed their votes among their lists in the same constituency. As it turned out, although the overall political climate was not favorable to the pro-Beijing camp, it struck a handsome victory by remarkable vote division, in particular the DAB. Table 6.4 summarizes the results of the 2012 LegCo election, including the vote shares and seat shares of various parties and of the two rival political camps in 2012. The most remarkable observation is that all the major pro-Beijing parties were over-represented in the 2012 election, with DAB and NPP the biggest winners. On the whole, due to effective vote division, the pro-Beijing camp won 48.6% of the seats with 41.3% of the popular vote share, having a 7% over-representation. In contrast, the prodemocracy camp was under-represented, winning 51.4% of the seats by their 56.1% vote share, thus being under-represented by about 5%. Compared with the results of the 2008 election, we can clearly see that although the relative vote shares of the two rival camps did not change much, there was a big difference in terms of seat representation. The proBeijing camp as a whole was under-represented in 2008, with the Liberal Party the biggest loser. In contrast the pro-democracy camp as a whole was over-represented by about 6% in 2008. The comparison also showed greater vote dispersion within the two camps in 2012. Though DAB was regarded as the big winner of the 2012 election, it actually got 3% fewer votes than in 2008. The vote dispersion in the pro-democracy camp was more salient: the DP, which had been in decline since 2000, lost about 7%

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Table 6.4 Results of the 2012 election, vote shares and seat shares of parties Total votes

Vote share

Total seats

Seat share

Seat share/ Vote share

DAB

366,129

20.28%

9

25.7%

1.267

FTU

127,857

7.08%

3

8.6%

1.214

NPP

68,097

3.77%

2

5.7%

1.511

Party/Group

LP

48,712

2.70%

1

2.86%

1.059

All pro-Beijing camp

747,892

41.3%

17

48.57%

1.176

CP

254,937

14.12%

5

14.29%

1.012

DP

247,220

13.69%

4

11.43%

0.834

PP

176,250

9.77%

3

8.6%

0.880

Labour Party

112,140

6.21%

3

8.6%

1.385

87997

4.87%

1

2.86%

0.587

1,015,264

56.1%

18

51.43%

0.916

LSD All pro-democrats

Key: DAB: Democratic Alliance for the Betterment and Progress of Hong Kong FTU: Federation of Trade Unions NPP: New People’s Party LP: Liberal Party CP: Citizens’ Party DP: Democratic Party PP: People’s Power LSD: League of Social Democrats Note: Seat Share/Vote Share >1 = over-representation Seat Share/Vote Share