Hong kong human rights monitor report on 1998 Legislative Council Elections



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HONG KONG HUMAN RIGHTS MONITOR
Report on 1998 Legislative Council Elections

December 1998


Contents




  1. Introduction




  1. Social and political background of Hong Kong




  1. Elections in Hong Kong before 1998




  1. The present election system




  1. Changes between the electoral arrangements in 1995 and 1998




  1. The ballot




  1. The role of the Electoral Affairs Commission and the exclusion of international observers from polling stations




  1. The results




  1. Corporate voting and functional constituencies




  1. The future – the 2000 and 2003 elections according to the Basic Law

11. Conclusion

Room 104, First Floor, Corn Yan Centre, 3 Jupiter Street, North Point, Hong Kong

Phone: (852) 2811-4488 Fax: (852) 2802-6012

Email: HKHRM@HKNET.COM Home page: MEMBERS.HKNET.COM/~HKHRM

Chairperson: Dr. Stephen Ng Deputy Chairpersons: Philip J. Dykes Q.C., S.C. & Raymond Tsui Secretary: Bernardine Huang Treasurer: Yvonne Ho

Director: Law Yuk Kai Research Officer: Belinda Winterbourne Executive Officer: Wong Hung Hung

Founder members: Johannes Chan John Kamm Phillip Ross Ho Hei Wah Andrew Byrnes Charles Mok Paul Harris Christine Loh

Appendices

1. Hong Kong Human Rights Monitor


2. The election observers
3. Guidelines given to international observers
4. Election Committee electorate
5. Types of voting system
6. Letter from Chief Election Commissioner of New Zealand
7.Voter turnout by constituency
8. Share of the vote
9. Vote count and results
10. Registration of electors in the functional constituencies
11. Multiple voter registration in Real Estate functional constituency

1. Introduction


1.01. This report by Hong Kong Human Rights Monitor sets out the results of our observation of the 1998 Hong Kong Legislative Council Election. This was the first Legislative Council election in Hong Kong after the transfer of sovereignty over Hong Kong from the United Kingdom to the People’s Republic of China on 1 July 1997, indeed the first election to any Governmental body in Hong Kong since that date. It was also the first election of a legislature in the history of the People’s Republic of China. It was therefore of considerable importance in the history of Hong Kong and of China.
1.02. Hong Kong Human Rights Monitor is an independent Hong Kong human rights organization. Information about our organization is set out at Appendix 1. Because of the importance of the election Human Rights Monitor invited international observers to join it in carrying our observations. A total of 13 members of Human Rights Monitor and 20 international observers participated in the exercise. The international observers included 8 members of the European Parliament from 6 countries; 6 representatives of the Regional Working Group for an ASEAN Human Rights Mechanism representing 4 Asian countries, 3 observers from Sri Lanka, and two from Germany. Details of these observers are set out at Appendix 2.
1.03. Human Rights Monitor’s basic aim and the reason for our existence is to ensure that international human rights law, as set out in the Universal Declaration of Human Rights and the various United Nations treaties on human rights which have been extended to Hong Kong, are fully respected in Hong Kong. In observing the Hong Kong elections we have done so in the knowledge that the method of election used in Hong Kong has already been condemned by the United Nations. In 1995 the United Nations Human Rights Committee called on the Hong Kong Government to take immediate steps to bring Hong Kong’s electoral law into compliance with the International Covenant on Civil and Political Rights (ICCPR), and in November 1996, the President of the United Nations Human Rights Committee condemned the failure of the Hong Kong Government to respond to its previous criticisms. The Committee found that the use of “functional constituencies” in Hong Kong, whereby business or professional groups elect a member of the Legislative Council to represent their interests on a special restricted franchise, was a breach of Article 25 of the ICCPR which states that all people have the right to elect their representatives by universal and equal suffrage. Since 1996, in blatant disregard of the findings of the United Nations, the new post-1997 administration of Hong Kong has not merely continued the functional constituency system but has modified it in ways which mean that it reflects the popular will even less than the system previously in use (full details of the 1995 and 1998 systems are set out in Section 5 below).
1.04. As a result the present election observation exercise has differed from many such exercises in other countries where the main issue for the observers has been whether the election would prove at the conclusion of the campaign and the poll to have been free and fair. In Hong Kong we knew before the election campaign began that the election would not be free and fair, as we knew that under the electoral law adopted for the election a minority of electors would be allowed multiple votes. We also knew before the start of the election campaign that however the electorate voted on polling day, the extent of the multiple voting by that minority would ensure that the most popular political parties (on past electoral performance) could not win the election.
1.05. Despite this pre-determined electoral conclusion we considered that we should nevertheless devote much effort to observing and monitoring the election, for 3 reasons. Firstly, to establish whether the actual ballot was procedurally fair. Secondly, to focus attention more closely on the manner in which the electoral law used for the election worked in practice, including in particular the manner in which the functional constituencies and the Election Committee constituencies operated, to contribute to the debate on what election arrangements should be used in future elections, and thirdly to establish the principle, in the face of strong discouragement from the Hong Kong Government, that there would be observers, including international observers, at Hong Kong elections. Appendix 3 of the report contains the information which was given to the international observers as to the objectives of the observation exercise and how best to undertake it.
1.06. The report is intended both for Hong Kong readers familiar with the basic constitutional arrangements in Hong Kong and for overseas readers who may be less familiar. The first chapters therefore describe Hong Kong’s social and political background, its constitutional system and the electoral arrangements prior to 1997.
1.07. The second part of the report deals with the 1998 election. It reviews the changes made to the electoral system by the present Hong Kong administration, and the actual conduct of the poll. This part also deals with the attitude of the Hong Kong Government towards international observers. Appendices 7 to 9 set out in full the election results, showing how despite gaining close to 2/3rds of the popular vote the democratic parties only gained 19 of the 60 seats.
1.08. Chapter 8 of the report looks in more detail at the electorates in some of the functional constituencies. It shows just how rotten some of these rotten boroughs are, with one individual controlling 5% of the votes in one constituency and numerous other examples of manipulation of corporate voting to give multiple votes to single commercial organizations.
1.09. The third and final part of the report looks to the future. It considers the likely effect of an election held under the existing system when the next Legislative Council elections are due in 2000 and 2003, in accordance with minor modifications already set out in the Basic Law. It then briefly considers the prospects for faster introduction of genuine democracy.
2. Social and political background of Hong Kong
2.01. Hong Kong's constitutional position is highly unusual. Before 1841 it was a small and sparsely populated area of the Chinese Empire. From 1841 to 1997 it was a British colony (apart from 1941 to 1945 when it was under Japanese war-time occupation). During the British colonial period Hong Kong grew to its present size as a city-state of 6.8 million people. Since 1 July 1997 Hong Kong has become a Special Administrative Region of the People's Republic of China, created under special powers contained in Article 31 of the Chinese Constitution. It has a high degree of autonomy, including its own law-making and tax-raising powers, and separate membership of many international organizations. Under the Sino-British Joint Declaration of 1984, which is registered at the United Nations as a treaty, Hong Kong is guaranteed the right to maintain a capitalist economic system and its previous economic, legal and social systems for a period of 50 years after 1997. These rights are set out in the Basic Law of the Hong Kong Special Administrative Region, which is sometimes referred to as Hong Kong's mini-constitution.
2.02. Hong Kong has a land area and population about the same as Greater London. However much of this territory is sea, and much of the remainder is steeply mountainous. The population is therefore concentrated in relatively small and very densely populated urban areas.
2.03. About 96% of the population of Hong Kong is ethnically Chinese, and about 92% are Chinese citizens, the remaining 4% being people of Chinese origin who have acquired other nationalities, principally British, Canadian, US and Australian. About 89% speak Cantonese as their first language, and about 70% are Hong Kong born. The largest non-Chinese minority are Filipinos, most of whom are domestic helpers on short term contracts with no residence rights and no voting rights. There are about 40,000 persons whose families originate from the Indian sub-continent, many of whom have lived in Hong Kong for generations. There are similar numbers of Europeans, but few of these are Hong Kong born.
2.04. In 1939 Hong Kong's population was about 1.5 million. At the end of the Second World War it had fallen to about half a million, but rapidly returned to its pre-war level as people who had fled Hong Kong under the Japanese occupation returned. However the population increased dramatically in the following decades because of massive influxes of refugees from Mainland China. There were particularly large influxes at the end of the 1940's when the Communists won the civil war and gained control of all of the Mainland; in the early 1960s at the time of the famine which followed Mao's "Great Leap Forward"; during the Cultural Revolution in the late 1960's; and in the late 1970s at the time of the relaxation which followed the death of Mao and the arrest of the Gang of 4. Although the majority of Hong Kong people today were born in the territory, most are the children or grandchildren of refugees.
2.05. Hong Kong developed as a major port and trading entrepot because of its remarkable natural harbour. It is today the world's largest container port. Between the early 1950’s and the mid 1980's Hong Kong became a major producer of textiles, plastics and other light industrial products. With the opening up of China in the 1980s many Hong Kong enterprises moved their factories to southern China to take advantage of the lower labour and land costs and today the industrial sector within Hong Kong, apart from the port, is much smaller than previously. Hong Kong has however become a major service centre for the Far Eastern Region. Its economy is therefore relatively diversified.
2.06. Hong Kong is a prosperous city. Incomes are high by world standards, taxation is low, and the Government has some of the largest financial reserves of any Government in the world, backing a currency pegged to the US dollar. However there are striking disparities of income and there are some signs that these are getting worse. Although Hong Kong has not been as badly affected by the regional economic crisis as most Asian countries the economy is in recession and unemployment is rising, exacerbated by a sharp downturn in the important tourism industry following record years prior to the Handover.
2.07. The Tien An Men massacre in Beijing on 4 June 1989 was a watershed in Hong Kong's history. In 1989 there was massive popular support for the democracy movement in the Mainland. Over a million people demonstrated in the street in Hong Kong in their support in 2 occasions in the weeks before the massacre. Since then attitudes to the Mainland Government and to the issues of democracy in Hong Kong and in the Mainland have been key political divides. The 3 main political camps are loosely referred to as "pro-democracy", "pro-business" and "pro-Beijing". Over the years between 1989 and 1997, as the handover approached, there was a gradual increase in expressions of support for the Chinese Government and some prominent people who had been active supporters of the democracy movement became associated with its opponents in the other 2 camps. However opinion polls and the 1995 election showed popular support for the democrats at a consistently high level.

2.08. The main political parties are:-


(A) Pro-democracy

1. Democratic Party (Leader: Martin Lee)


2. The Frontier (Leader: Emily Lau)
3. Citizens Party (Leader: Christine Loh)
(B) Pro-business
4. Liberal Party (Leader: James Tien)
(C) Pro-Beijing
5. Democratic Alliance for the Betterment of Hong Kong

(Leader: Tsang Yok-Sing)


6. Hong Kong Progressive Alliance ( Leader: Ambrose Lau)
7. Federation of Trade Unions (Leader: Cheng Yiu-Tong)
(D) Originally pro-democracy but no longer consistently so
8. Association for Democracy and People's Livelihood

(Leader: Frederick Fung Kin-Kee)


2.09. Hong Kong has a Chief Executive, Mr Tung Chee-hwa, who is appointed by the Chinese Government (officially described as the Central People's Government), on the advice of a Selection Committee of local notables which was in its turn selected by a Beijing appointed committee called the Preparatory Committee.
2.10. Mr Tung has an Executive Council, the Hong Kong equivalent of a cabinet, which advises him on policy decisions. The members of the Council are selected by him. Although some are politicians, they are members of the Executive Council not by virtue of their political support but because they are personally favoured by the Chief Executive. There are no pro-democracy politicians on the Executive Council.
2.11. Hong Kong has a non-party political career civil service on the British model. It is headed by the Chief Secretary, Mrs Anson Chan, who deputises for the Chief Executive in his absence overseas. The Secretary for Justice, Ms Elsie Leung, is a pro-Beijing lawyer appointed from outside the administration. This appointment is in line with a British tradition of recruiting candidates for this post (previously known as Attorney-General) from lawyers in private practice.
2.12. Hong Kong's legal system is the English common-law system with only very minor differences. As in England the legal profession is divided into barristers and solicitors, each represented by their independent professional bodies, the Bar and the Law Society. English remains the language of the higher and middle level courts. Judges are appointed by a Judicial Services Commission which contains both Government representatives and representatives of the Bar, the Law Society and the public (in the form of a small number of community figures).
3. Elections in Hong Kong up to 1997
3.01. Although Hong Kong has many of the attributes of a free society, it has never had full democracy.
3.02. For most of the colonial period the existence of the British Parliament scrutinising the activities of the British Government meant that there was some limited element of democratic pressure which could be brought to bear on the actions of the British administration in Hong Kong. However Britain was extremely slow to introduce any democratic elements into the government of Hong Kong itself. Plans to introduce elections after the Second World War were abandoned, partly because of British fears that the elections would cause heightened tension and violence between Chinese Communist and Nationalist supporters, and partly because of objections from Mainland China. Elections to Hong Kong’s Urban Council began under a limited franchise in 1952, but it was not until 1985 that any sort of election was held to the Hong Kong Legislative Council.
3.03. The first elections to the Legislative Council in 1985 were "indirect elections" whereby certain professions and interest groups elected one of their members to represent them. Only a minority of seats were chosen in this way. The majority of the seats in the Legislative Council were still appointed by the colonial Governor. Elections under this system were again held in 1988.
3.04. The first direct elections were held in 1991. However these were again only partial elections. The make-up of the Legislative Council in 1991 was that 18 seats were directly elected, 21 were indirectly elected by the same system as in 1985 ( known as the "functional constituency" system), 18 were appointed by the Governor, and 3 were described as ex-officio, being the 3 most senior civil servants in the administration, the Chief Secretary to the Government, the Financial Secretary and the Attorney-General.
3.05. The last election under British colonial rule was held in 1995. The democratic element in this election was much larger than in previous elections. In 1993 and 1994 there were extensive negotiations between the British and Chinese Governments as to the exact method of election to be used for the 1995 Legislative Council elections. After 17 unsuccessful rounds of talks the British Government broke off the negotiations and Governor Patten unilaterally put before the Legislative Council proposals for the 1995 elections. These were subsequently narrowly approved by the Legislative Council, against fierce opposition from pro-Beijing groups, and were used in those elections. The changes made by the 1995 elections are referred to below as the Patten reforms. These changes, which were implemented against a background of opposition from elements in the Hong Kong business community and in the British Government, as well as from China, attempted to make the elections as democratic as possible while still being consistent with the arrangements planned by China for the first post-Handover Legislative Council, which were by then set out in an appendix to the Basic Law for the Hong Kong Special Administrative Region of the People's Republic of China ("the Basic Law"), which had been enacted by the Chinese National People's Congress in 1991.
3.06. For the first elections under Chinese rule the Basic Law provides for a 60 seat Legislative Council with 20 seats directly elected, 30 indirectly elected and 10 elected by a body known as the election committee. It does not specify how the election committee is to be constituted.
3.07. Under the Patten reforms the number of directly elected seats, previously 18, was increased to 20 in line with the Basic Law. The number of functional constituencies was increased to 30 (previously 21) again in line with the Basic Law, and provision was made for the remaining 10 seats to be elected by an election committee. The reforms therefore complied with the letter of the Basic Law.
3.08. There remains much controversy as to whether the Patten reforms could be said to have complied with the “spirit” of the Basic Law. The Basic Law provides for “gradual and orderly progress towards full democracy”. The Patten reforms were undoubtedly aimed at greater democracy. Some have argued that they went too far too fast. However as compared with the introduction of elections in 1985, and the introduction of direct elections in 1991, the Patten reforms were relatively minor.
3.09. Patten firstly abolished the 3 ex officio seats held by the Chief Secretary of the Government, the Financial Secretary and the Attorney-General. He also abolished the 18 appointed seats. It was the abolition of these seats that made it possible to increase the number of functional constituency seats and provide for the election committee seats while keeping the total number of seats at 60 as before.
3.10. With regard to the functional constituencies the main change made by the Patten reforms was to expand their electorate so that every person in paid employment received a vote in a functional constituency as well as their vote in one of the 20 directly elected geographical constituencies. This was done by creating the 9 new functional constituencies with very large electorates. The electorates for the 9 Patten functional constituencies were :


  1. Primary Production, Power and Construction;

  2. Textiles and Garments;

  3. Manufacturing;

  4. Import and Export;

  5. Wholesale & Retail;

  6. Hotels & Catering;

  7. Transport and Communication;

  8. Financing, Insurance, Real estate and Business;

  9. Community, Social and Personal Services.

3.11. It will be seen that practically all paid jobs could be brought within the definition of one or other of these 9 constituencies. The effect of this change was therefore that in 1995 almost all persons in paid employment had 2 votes, one in one of the 20 geographically based directly elected constituencies, and one in one of the 30 functional constituencies based on occupation. This system still discriminated against retired people, home-makers, the unemployed and students, but was much more representative of the community as a whole than the system which had been used in the previous elections.


3.12. With regard to the election committee the electorate was composed of the members of the District Boards. These are lower tier local government bodies. Unlike the Urban and Regional Councils, which have direct executive authority, the District Boards are advisory. Like the Urban and Regional Councils, these Boards had previously consisted of a mixture of elected and appointed members, but earlier changes under Governor Patten’s governorship had changed the District Boards in the urban areas into wholly elected bodies, and increased the proportion of elected members on the District Boards in rural areas. The 18 Districts Boards consisted of a total of 338 members. The electorate for the election committee election was therefore 338 mainly elected local government representatives.
3.13. The overall effect of the Patten reforms as applied in the 1995 Legislative Council election was to increase the pro-democracy representation in the 60 strong 1995 Legislative Council from the previous 19 to 29. Of the 20 geographical constituencies 16 out of 20 were won by pro-democracy candidates. 6 pro-democracy candidates were elected from the old functional constituencies, 4 were elected from the 9 new functional constituencies, and 4 from the Election Committee.
3.14. This result still seriously distorted the election result as the pro-democracy parties with about 2/3rds of the popular vote still obtained less than half the seats. The retention of the old functional constituencies with very small electorates also meant that the pro-business Liberal Party, which rarely stood in the geographical constituencies and commanded about 10% electoral support, was grossly over-represented, with 13 seats. The Government moreover remained an "executive-led" government. It was not formed by the leader of the largest party in the Legislative Council, but continued to be a non-elected colonial administration headed by the Governor. The changes did however constitute substantial progress towards greater democracy.
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