Hong Kong Special Administrative Region (HKSAR)
Transition to Democracy
September 2003

In an historical march, more than half a million people voted with their feet expressing their discontent with the government on the sixth anniversary of Hong Kong's reunion with the People's Republic of China (1 July 2003). Although the banners and voices came from different sectors of the community, the common demand was clear: shelve the controversial national security bill and speed up democratic development.

A three-month public consultation regarding a bill to introduce national security legislation in fulfillment of Article 23 of the Hong Kong Special Administrative Region's Basic Law ended on 24 December 2002. The government's rush to enact this 'Article 23 legislation', and its turning a deaf ear to the voices of the people, generated widespread anxiety in Hong Kong society. A key concern was the lack of democratic checks and balances on the exercise of state powers: the Chief Executive and legislature are not all democratically elected or accountable to the people. It is possible for legislation to be passed in Hong Kong without the consent of the people expressed through elected representatives.

The Basic Law, which serves as a 'mini-constitution' for Hong Kong, sets out fundamental rights to be guaranteed in the Special Administrative Region (SAR), and a schedule for its transition to full democracy. During the six years since Hong Kong's return to Chinese soveriengty, under the "One Country, Two Systems" philosophy, there has been little progress towards democracy.

This Hotline Backgrounder briefly presents the concept of democracy. It then reviews policies and events that have impacted significantly on the democratic development of Hong Kong. It will also make some observations on the legal system and civil and political rights which play an important role in Hong Kong's political development.

DEMOCRACY

The term 'democracy' comes from the Greek word meaning 'rule of the people'. In ancient Greece, the small populations of its city-states made it possible for citizens to meet periodically to discuss issues, adopt policies, enact laws and appoint officials. This was called 'direct democracy'. In modern states where direct democracy can no longer be practised because of the larger populations and more complex policy issues, 'representative democracy' developed. Under this system, all eligible citizens choose representatives to rule on their behalf.

Key Principles

In contemporary practice, democractic forms of government are organised in accordance with four principles:

1. Popular Sovereignty: which requires that the power to make political decisions is vested in all the people, instead of in only some, or even one, of them. Under representative democracy, people delegate the power to rule to elected representatives, who should safeguard the people's interests and be accountable to the people.
2. Political Equality: which requires that each individual has the same opportunity and equal right to participate in the political decision-making process. The catchphrase 'one person, one vote' is an expression of this principle.
3. Popular Consultation: which requires that there should be some kind of institutional machinery for public officials to learn about people's preferences and opinions on public policies, and that public officials must put such preferences into effect.
4. Majority Rule: which requires that when the people disagree on an issue or policy, the government should act according to the wishes of the larger number. The interests of the minority, however, should still be protected to avoid tyranny by the majority.

International Standards

The right to participate in public affairs is affirmed in the International Convention on Civil and Political Rights, Article 25:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
1. To take part in the conduct of public affairs, directly or through freely chosen representatives;
2. To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
3. To have access, on general terms of equality, to public service in his country.

Church Teaching

Until relatively recent times, the Church placed great stress on the preservation of the social order and saw rulers as not to be challenged because they excercise authority delegated by God - a view summed up in the expression 'the divine right of Kings'. The Church was initially cautious about democratic ideas, partly because of the secularist and anti clerical movements with which they were associated.

Pope Pius XII made a significant contribution to the development of the Church's thinking about the modern state in his 'Easter trilogy' of encylical letters, issued in 1937, which critiqued nazism, communisim and the infringement of religious and civil liberties by the State. Citizens had a right and a duty to oppose unjust laws and actions by the State. In his Christmas Radio Messages during the Second World War, Pius XII looked forward to post war social reconstruction and established much of the philosophical and juridical framework for contemporary Catholic thinking on the State.

Catholic teaching sees the role of the State as structuring and organising the common good. It does not endorse a single form of state but critiques all states against the standards of human dignity and the common good.

While the Catholic Church is not democratically structured internaly, the democratic system is valued as a system that facilitates people's participation in the political life of the societies in which they live. This view is put clearly by John Paul II in the 1991 encyclical letter Centesimus Annus:

The Church values the democratic system inasmuch as it ensures the participation of citizens in making political choices, guarantees to the governed the possibility both of electing and holding accountable those who govern them, and of replacing them through peaceful means when appropriate. Authentic democracy is possible only in a State ruled by law, and on the basis of a correct conception of the human person. It requires that the necessary conditions be present for the advancement both of the individual through education and formation in true ideals, and of the "subjectivity" of society through the creation of structures of participation and shared responsibility .

HONG KONG AS A BRITISH COLONY

Although the governance of Hong Kong during the century of British colonial rule was undemocratic, liberty and the rule of law were observed. Towards the end of British rule, key events that resulted in significant changes in the government structure and policies opened some space for the people's participation in politics.

Alerted by the 1967 riots, the colonial administration could no longer ignore the cries of the people and started to move from a 'one-way system' to 'rule by consultation'. It introduced district offices and developed advisory bodies in almost every government department.

China's decision in 1979 to resume its sovereignty over Hong Kong promoted a second set of steps towards representative government. Direct elections were introduced for district boards in 1981 and indirect elections were introduced for the Legislative Council or Legco in 1985. These measures were introduced in spite of strong objections and pressure from the Chinese Government.

The Tiananmen Square Incident of 1989 was another turning point in the democratic development of Hong Kong. It created an unprecedented crisis of confidence among the Hong Kong people and, at the same time, a demand for a faster pace of democratisation. Britian's policy of appeasing China meant that there was no further progress on democratisation until Chris Patten was appointed the last Governor in 1992.

While the intentions and actions of the British Government towards the development of a democratic system in Hong Kong are not beyond question, the fully elected legislature formed in 1995 and the idea of an open and accountable government, together with other reform proposals did provide a foundation for future democratic development.

THE BASIC LAW : A PROMISE

The Basic Law is the constitutional document for the Hong Kong SAR. It was drafted by a Committee composed of members from both Hong Kong and the People's Republic of China, and was adopted on 4 April 1990 by the Seventh National People's Congress of the Chinese Government and came into effect on 1 July 1997.

The Basic Law defines the powers of the Central Government and the Hong Kong SAR Government respectively, the political system of the SAR, and the rights and obligations of Chinese citizens in the SAR. Enshrined in the Basic Law are the concepts of 'One Country, Two Systems', 'a high degree of autonomy' and 'Hong Kong People ruling Hong Kong'.

The Basic Law also provides a blueprint for the political development of the SAR. It allows for the electoral methods for selecting the Chief Executive and the Legislative Council to change after 2007. It also holds a promise that both will eventually be selected by universal suffrage:

The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures. (Article 45) The Legislative Council of the Hong Kong Special Administrative Region shall be constituted by election. The method for forming the Legislative Council shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the election of all the members of the Legislative Council by universal suffrage. (Article 68)

 

AFTER 1997 : A MOVE FOWARD OR BACK?

"Our demonstration on July 1 is both a concrete and symbolic sign of our sovereighty," Dr. Rose Wu of the Hong Kong Christian Institute wrote just before the sixth anniversary of the handover. The large turnout of people - more than 500,000 - not only indicated that the government had failed to address the people's concerns, but also showed that people were feeling helpless in the face of a political system in which government officials and many legislators were not representing them. They felt that they had no choice but to express their views through action.

No Right to Select the Chief Executive:

The end of British colonial administration marked the begining of a system of 'Hong Kong People ruling Hong Kong', but it did not entail the right to elect the head of the SAR. Before 1997, the British Government appointed a British official as the Governor of Hong Kong. Because Hong Kong is now a local administrative region of China, the Basic Law requires that the Chief Executive "shall be selected by election or through consultations held locally and be appointed by the Central People's Government" (Article 45).

The power to select the Chief Executive is now held by a 800-member Selection Committee, which represents only certain sectors of the community rather than all the people. This has been criticised by pro-democracy activists as undemocratic. Furthermore, the Beijing-appointed Chief Exectutive is not accountable to the Hong Kong people, but rather to the Central Government and the National People's Congress.

Ministers Not Accountable to the People

Under the colonial system, policies were mainly made by foreign policy-makers operating within the British democratic system, and implemented by civil servants within the local governance system in Hong Kong. The Principal Officials Accountability System, or ministerial system, which was introduced on 1 July 2002, again separates those who make policy from those who implement policy within the governance system.

This new system seems to conform with certain principles of democracy, because it requires the Principal Officials to be held responsible for the success or failure of their policies. According to the Chief Executive's Annual Policy Address in 2001, however, these Officials are accountable directly to the Chief Executive instead of to the Legislature, who are the elected representatives of the people:

135. These officials would each be responsible for policy areas designated by the Chief Executive and would lead the departments within their particular portfolios. Responsibilities would include formulating and explaining policies, defending policies, canvassing support from the Legislative Council and the public, and be answerable to the Chief Executive for the success or failure of their policies. They would attend meetings of the Legislative Council to answer questions, move bills and take part in motion debates.

There have been many criticisms of this year old system. It is feared that a Chief Executive who is not directly elected could become authoritarian. In fact, because of the way in which a range of issues and events have been handled under the accountability system since its introduction, the new system has failed to gain the trust of the people.

Political Inequality

In the 2000 Legco elections, only 24 members of the 60-member legislature were directly elected while in the next election, to be held in 2004, only half (30) will be returned by direct elections. The remainder will be elected by functional constituencies and an Election Committee.

Under this system some people have more than one vote - one in geographical constituency elections, and one in functional constituency elections.

Among the thirty functional constituency seats in the 2000 elections, 28 Legco members were elected to represent the commercial and professional sectors of society while only two represent labour unions. This system not only violates the principle of political equality - one person one vote - but is also biased towards the interests of the business and professional sectors.

Ignoring Public Opinion:

"Through the Article 23 legislation, some people can see clearly the Hong Kong government is ignoring the voice of the public," Ms Christine Loh Kung-wai, the Chief Executive of Civic Exchange, a Hong Kong-based public policy think tank, said addressing the media. She believed that the controversial legislation could play an important role in arousing people's desire for greater democracy.

The three-month consultation on the national security legislation was criticised for not providing a White Bill to allow comment on the actual text of proposed legislation, for not providing sufficient time and opportunties for the public to express their views, and for misrepresenting submissions made to the consultative process. From the introduction of the proposal, the government presented an impression of positive public support for the legislation whereas a survey conducted by the public opinion programme of the University of Hong Kong in late June 2003 found that, out of 1,032 interviewees, 55.3% opposed the enactment of Article 23 legislation, and only 16.4% supported it. These findings clearly contradict the government's claim of overwhelming public support for the legislation.

There were strong calls, especially from legal professionals, for more time to debate such important legislation, and for the issueing of a White bill (a draft of the legislation that allows for a period of consultation) . The government, however, refused to open more space for public consultation and continued to try to pass the legislation according to its schedule by 9 July 2003. Such insensitivity to the opinions of the people caused widespread anger at the government and eventually forced the government to withdraw the draft legislation.

THE LEGAL SYSTEM : BACKBONE OF THE HONG KONG SOCIETY

Hong Kong has enjoyed judicial independence, which is essential to maintain a trusted legal system and to protect the rights of all citizens. During the British Administration, the Privy Council in the United Kingdom held the final adjudication power for Hong Kong. Since 1 July 1997 this power has been vested in the Court of Final Appeal in the Hong Kong SAR.

As provided in the Basic Law, the court is free from any government influence. Judges are appointed by the SAR Government, but can only be removed according to stringent procedures. They are therefore able to decide cases on the basis of law without having the need to consider the views of any outside body.

Concern regarding judicial independence has been growing since June 1999, when the SAR Government sought reinterpretation of the Basic Law by the National People's Council to overturn Judgment 129 made by the Court of Final Appeal on the question of the right of abode for the mainland born children of Hong Kong residents . The Government was criticised for usurping the authority of Hong Kong's highest court and seriously damaging the rule of law. More than 600 members of the legal sector including barristers, solicitors and law students staged a silent protest against the government's actions.

CIVIL & POLITICAL RIGHTS : MORE OR LESS?)

The media provide important means of expression of views and channels for providing information. It also plays a 'watchdog' role, monitoring the government to ensure that it has not abused its power or enaged in maladministration. Freedom of expression through the media has been respected in the Hong Kong SAR as promised by the Basic Law. There is no censorship, although there has been some concern regarding self-censorship.

Certain incidents have placed pressure on the freedom of expression, especially in criticising the government. On 14 June 2003 the Broadcasting Authority issued a warning to a radio talk-show host, ruling that the host had used language that could adversely affect the reputations of two government officials, and which had resulted in 157 complaints to the authority. Local newspaer, Ming Pao responded by issueing a proposed code of conduct on 24 June, which would require its journalists not to become involved in any protests or petitions in order to maintain their political neutrality. The Chairperson of the Hong Kong Journalists Association, Mak Yin-ting, responded that the proposed code of conduct would impinge on the freedoms of journalists and was put forward at an inappropriate time.

The issue of censorship has generated much discussion, especially among journalists, academics and legal experts commenting on the proposed Article 23 legisation . It is feared that self-censorship could result from the proposed legislation. In a questionnaire distributed by the Hong Kong News Executives' Association to 16 media organisations, 80% of respondents felt that the national security bill would affect freedom of reporting and 81% did not accept the government's refusal to introduce a "public interest" defence against the offense of disclosure of official secrets.

Organising and participating in public assemblies and demonstrations is another means of expression. According to the Police, there have been more than a thousand public assembly and demonstrations organised each year since the handover. Nevertheless, cases of the denial of the right of assembly are not absent. In 1997, the Public Order Ordinance was tightened. It now requires organisers of assemblies or protests to obtain a "notice of no objection" from the police. In May 2002, a veteran protester was arrested at home for allegedly staging an unauthorised protest in February 2002. Other incidents, such as the confrontation between police and protesters during the Fortune Global Forum in May 2001, the use of pepper spray by the Police to disperse abode claimants protesting outside the Central Government Offices in June 2001, and the handcuffing of reporters during the clearance of abode seekers from Chater Garden in April 2002, have attracted criticism from human rights groups.

PROSPECTS FOR FUTURE DEVELOPMENT

Movement towards democratisation in Hong Kong since its return to Chinese soveriegnty has disappointed not only the academics and politicans, but also the people. Although the Basic Law provides for democratic elections after 2007, little progress has been made towards this goal since 1997. In the first three Annual Policy Addresses there was no mention of democratisation while the fourth and fifth Annual Policy Addresses only addressed the Accountability System. It is commonly believed that the Central Government expects Hong Kong to be an administrative state in which politics is insignificant, and that businesspeople are pressing the administration to go slow on democracy for fear that it might upset the Central Government and adversely affect the investment climate.

In February 2003, a government official declared that public consultation on democratic reform could start as early as year 2004, and legislative amendments could be introduced by 2006 to prepare for changes in the 2007 elections. However a motion urging the administration to amend the Basic Law to speed up the pace of universal suffrage was voted down in the Legco which is dominated by progoverment legislators.

A survey conducted by the Institute of Asia-Pacific Studies of the Chinese University of Hong Kong in March 2003 showed that there is a demand for direct elections in Hong Kong. Among the 1,023 respondents, 77% backed universal suffrage in the election of the Chief Executive and 58% believed that a directly elected leader would be more capable of handling economic issues. Regarding the question of when to implement full democracy, 44% said it should start in 2003, 22.5% opted for 2004, and 20% prefer after 2004.

Political scientists have expressed deep concern over the political uncertainty in Hong Kong after the July 1 demonstration. While many advised the government to move on democratisation in order to ease the crisis, a more pessimistic view that the Central Government's opposition could make a faster pace of democratisation impossible was also expressed.

CONCLUSION

Hong Kong is a modern and cosmopolitian city that has enjoyed a greater measure of freedom than many other parts of Asia in recent times. Much of the international community has been unaware of Hong Kong's struggle for democratisation.

While Hong Kong's Basic Law provides a framework for Hong Kong's transition to full democracy, little progress has been made in the last six years. Recent events, especially the attempt to introduce national security legislation despite widespread concerns about the measures, have given the pro-democracy movement new momentum and a higher international profile.

To campaign for a faster pace of democratic development, a coalition has been formed among more than 30 social and political groups including religious groups and trade unions. Maintaining public pressure for democracy following the sucess of the 1 July march will be a key challenge, and the election of the Chief Executive by universal suffrage has become a strategic objective.

Some of the key concerns of the pro-democarcy movement can be summed up as follows:
· Contrary to the principle of popular soveriegnty, the Chief Executive is not elected by universal sufferage. This is also true of some members of the legislature.
· The combination of geographical and functional constituencies contravenes the principle of political equality as some people have more than one vote.
· Principal officials are accountable to the Chief Executive rather than to the people through their elected representatives.
· Institutional machinery for popular consultation is weak and the Government is able to ignore public opinion.
· Judicial independance is under stress from Hong Kong SAR Government actions in appealing to the Central Government on matters within the competence of the Court of Final Appeal.
· Freedom of expression and of the media are vulnerable under the proposals for national security legislation.

The local Catholic Church, headed by Bishop Joseph Zen, and supported by the Hong Kong Catholic Diocese Justice and Peace Commission, is an active player in the democracy movement. Through the Hotline Asia project, the Asian Center for the Progress of Peoples (ACPP) has sought to assist them by mobilising international solidarity. A country profile on the Hong Kong SAR can be accessed from the ACPP website and can be posted or emailed on request. Urgent Appeals on Hong Kong issues include UA021205(10) concerning the proposed national security legislation; UA020124(2) concerning family reunion and the right of abode; and UA990604(8) concerning the rule of law. Extra information about the Article 23 national security legislation is provided in Additional Information No 26, Analysis of National Security Proposals for Hong Kong, and the most recent developments can be monitored via www.article23.org.hk or www.margaretng.com. For the latest information about solidarity actions that groups and individuals can take on Hong Kong democracy issues, please check our website at www.acpp.org or contact us at Tel +852 2714 5123 or Email hotline@acpp.org.