|3.15. Prior to the 1995 elections there had been a possibility that the Legislative Council elected that year would be allowed to serve its normal 4 year term, notwithstanding the transfer of sovereignty in 1997. This possible scenario was known as " the through train". However when the
arrangements for the election were announced China stated that it would not permit the through train, and would dismantle all elected governmental bodies in Hong Kong with effect from 1 July 1997, and replace them with "provisional" appointed bodies which would function until new elections could be held.
3.16. That plan was carried out. Between the Handover on 1 July 1997 and the convening of the Legislative Council elected on 24 May 1998 Hong Kong had an appointed legislative body, the Provisional Legislative Council. The Urban and Regional Councils and District Boards have been also replaced by Provisional bodies of the same name. Existing elected members of the local government bodies have been permitted to retain their seats, but additional members have been appointed, in many cases resulting in previous pro-democracy majorities being turned into minorities. In the case of the Provisional Legislative Council, no pro-democracy member applied for membership because of doubts about the legality of such a body (which is not mentioned in the Basic Law). In a controversial judgment on 29 July 1997 the Hong Kong Court of Appeal held that the Provisional Legislative Council was legal, but that it was not a Legislative Council as provided for in the Basic Law, but merely a preparatory body charged with implementing legislation necessary for a smooth transfer of sovereignty.
3.17. The election on 24 May 1998 was therefore the election for the First Legislative Council of the Hong Kong Special Administrative Region of the People's Republic of China. The first term of the new Legislative Council began on 1 July 1998.
4. The present electoral system
4.01 The Legislative Council consists of 60 members.
4.02. 20 directly-elected members are returned from 5 geographical constituencies. The constituencies with the number of members each returns are:-
Hong Kong Island (4)
Kowloon West (3)
Kowloon East (3)
New Territories West (5)
New Territories East (5)
4.03. The voting system used for these constituencies in this election was a proportional representation system with party lists. The quota of votes required to elect a candidate was 25% in Hong Kong Island, 33 and 1/3rd% in Kowloon, and 20% in the New Territories. Seats not filled by candidates who obtained a quota are filled from the list or lists with the highest remainder number of votes.
4.04 The functional constituencies for the election were:-
(1) Provisional Urban Council;
(2) Provisional Regional Council;
(3) Heung Yee Kuk ( rural villagers association);
(4) Agriculture and Fisheries;
(11) Health services;
(13) Architecture, Surveying and Planning;
(15) Social Welfare;
(16) Real Estate;
(18) Commercial (First) (Hong Kong General Chamber of Commerce);
(19) Commercial (Second) (Chinese General Chamber of Commerce);
(20) Industrial (First) (Federation of Hong Kong Industries);
(21) Industrial (Second) (Chinese Manufacturers Association);
(23) Financial Services;
(24) Sports, performing arts, culture and publication;
(25) Import and Export;
(26) Textiles & Garments;
(27) Wholesale & Retail;
(28) Information Technology.
4.05 The Labour constituency returns 3 members. The others are single member seats. This gives a total of 30 members returned from functional constituencies.
4.06. Election for the first 6 functional constituencies listed above is by a preferential voting system (single transferable vote). Election for the other functional constituencies is by the first past the post method.
4.07. The electorates for the functional constituencies have a number of startling features. In some, e.g. legal, the electorate consists of individual members of the Bar and the Law Society. In others voting is either by individuals or by companies This applies, for example, in the commercial and industrial constituencies and the real estate constituency. In others all the votes are cast by companies. This applies in the Finance constituency, where the voters are either banks or licensed deposit taking companies. In others all the votes are cast by named organizations listed in the enabling legislation. This applies to most of those "new functional constituencies" created by the Patten reforms for the 1995 elections. Previously these had very large electorates of individuals. These have now been replaced by selected trade organizations alleged to be representative of the economic sector which the constituency is intended to represent (the one exception is the new Information Technology constituency, where both individuals and companies can vote).
4.08. 10 members are returned by the Election Committee. The Election Committee consists of 800 members, who are alleged to be representative of 4 sectors, each composed of 200 members, and in turn divided into subsectors. Most of the members of the Election Committee were themselves elected in a separate election committee election on 2 April 1998.
4.09. The arrangements for the election of the election committee are very complex, with considerable overlap between the electorates for the election committee and the electorates for the functional constituencies. Members of the Provisional Legislative Council are ex-officio members as are Hong Kong delegates to the National People's Congress. All of the functional constituencies except for education and tourism are also constituencies (known as subsectors) for the election of the election committee, with the same electorate. The education and tourism subsectors are to be elected by organizations specified in the enabling legislation. Additional subsectors are to be elected by named organizations representing Chinese traditional medicine, hotels, businesses which are members of the Hong Kong Chinese Enterprises Association, higher education institutions, organizations representing caterers, and members of the Hong Kong Employer's Federation. Finally the "religious subsector" consists of nominated representatives of
the Catholic Diocese of Hong Kong, the Chinese Muslim Cultural and Fraternal Association, the Hong Kong Christian Council, the Hong Kong Taoist Association, the Confucian Academy, and the Hong Kong Buddhist Association. The Hong Kong Christian Council held an internal election for its nominee, at which most church members were entitled to vote, although it was not obliged to do this by law.
4.10 It is noteworthy that the effect of the duplication of the functional constituencies as subsectors for the election committee election is that a voter who has a vote in a functional constituency automatically also has a vote for the election committee election. People with votes in the functional constituencies therefore have a total of at least 3 votes in the Legislative Council election, one in their geographical constituency, one in their functional constituency, and one for the election committee. This contrasts with the great majority of the electorate who have one vote only. This system therefore exaggerates and makes even more gross the gross breach of the International Covenant on Civil and Political Rights already condemned by the United Nations in relation to the 1995 election.
4.11. The election was by secret ballot. Electoral arrangements were overseen by a statutory Electoral Affairs Commission chaired by a High Court Judge, Mr Justice Woo Kwok-Hing. There is no provision for postal or proxy votes. Corporations are required to select an authorised representative to vote on their behalf. There are however no rules whatsoever as to how the corporations are to undertake that selection. There are strict laws against bribery and treating which are strictly enforced.
5. Changes between the electoral arrangements in 1995 and 1998
5.01. The Tung administration has made extensive changes to the system used for the 1995 Legislative Council elections. These changes have been systematically designed to reduce the representation of pro-democracy candidates.
5.02. The Tung administration has abolished the 9 new functional constituencies created by Patten and replaced them with functional constituencies with a very limited franchise. For most of these constituencies he has entirely abolished voting by individuals and replaced it by voting by associations and corporations. In only one of the new constituencies, information technology, has voting by individuals been allowed (in conjunction with voting by corporations) and it is significant that this was the only one of this group of constituencies which was won by a pro-democracy candidate in 1998 (see results at Appendix 9 below).
5.03. The Tung arrangements for the election committee also involve election of an 800 strong committee from a restricted franchise composed of electors in the functional constituencies and authorised representatives of designated community organizations. A full list of the election committee electorate is at Appendix 4.
5.04. A further peculiar innovation for the vote for the election committee which has not been widely publicised is that to cast a valid vote it was necessary for a voter to vote for 10 candidates, one for each of the 10 election committee seats. A voter who ticked the names of 9 or less candidates on the ballot paper was treated as having spoiled their paper. To discourage voters from spoiling their papers all election committee voters were asked to place their ballot paper in a computer after voting. After they had done so the computer would bleep if they had filled in less or more than 10 names. In this event the voter would be allowed to treat the paper as spoiled and obtain another one from a member of the polling station staff.
5.05. The reason for the requirement to vote for 10 candidates does not appear ever to have been explained by the Government. It has been suggested that the reason was to ensure that some important but unpopular members of pro-Beijing parties might otherwise stand a lower chance of election, since even their ostensible supporters might fail to cast their vote for them if they had the option of casting a smaller number of valid votes only for those other candidates whom they positively supported. In the event no pro-democracy candidates were returned by the election committee (few pro-democracy candidates put themselves forward because of the undemocratic nature of the election committee).
5.06. In addition to these changes Tung altered the voting system for the geographical constituencies from first past the post to single remainder proportional representation with a list system. (An explanation of the various types of voting system commonly used for democratic elections is at Appendix 5). In principle proportional representation is fairer than first past the post, since it ensures that representation in the legislature does reflect the popular vote, instead of the largest party gaining a disproportionate number of seats because it comes first in each constituency. However prior to 1998 the disproportionate number of seats gained by pro-democracy candidates in the 20 geographical seats went a small way to balance out the disproportionately low representation of pro-democracy candidates in the 60 seat legislature as a whole. The effect of introducing the change to proportional representation was therefore to reduce further the pro-democracy representation at the time when it was already being substantially reduced by the other changes set out above.
5.07. It will be apparent that these changes made by the Tung administration, far from being a continuation of the “gradual and orderly progress towards full democracy ” enjoined by the Basic Law, are a regression away from democracy. They are therefore arguably unconstitutional in that they are in breach of the Basic Law.
5.08. The Tung administration also made other changes designed to hamper the pro-democracy parties, and permitted a further change introduced by the Provisional Legislative Council.
5.09. Prior to the 1998 elections it was permissible for political parties to identify their candidates by a symbol next to the candidate’s name on the ballot paper. By far the most well-known of such symbols was the Dove representing the Democratic Party. The Tung administration banned the use of symbols on the ballot paper. Since the election the Electoral Affairs Commission responsible for oversight of the election has produced a report on the election recommending that the banning of symbols be reconsidered for the 2000 elections. It remains to be seen whether this recommendation will be accepted.
5.10. Article 67 of the Basic Law restricts the number of members of the Legislative Council who are not Chinese citizens or who hold foreign passports to 20% of the total membership of the Legislative Council, i.e. 12 members in a 60 member Legislative Council. This provision affects many people, since many in Hong Kong still hold British passports, and it is estimated that there are about 500,000 people who hold or are eligible for non-Chinese passports.
5.11. The Basic Law does not provide any indication as to whether there should be a restriction built into the electoral law to make it impossible for more than 12 such foreign passport holders to be elected. It would have been open to the administration to leave it to the Legislative Council to make rules as to who should be disqualified if more than 12 foreign passport holders were elected, or to make such rules itself, or to provide that up to 6 foreign passport holders could be elected from the functional constituencies, 4 from the geographical constituencies, and 2 from the election committee, so reflecting the numerical strengths of each of these components of the Council. However the administration did none of these things, but instead provided that foreign passport holders could only be candidates in 12 specified functional constituencies. As the geographical constituencies are dominated by pro-democracy legislators the effect of this provision was to force most of those pro-democracy politicians who held foreign passports to relinquish them or retire from politics, while permitting their opponents who dominate the functional constituencies to become Legislative Council members while still holding foreign passports. Among those forced to relinquish British passports as a result of this provision were the leader of the Frontier, Emily Lau, and the leader of the Citizen’s Party, Christine Loh. A popular Democratic party legislator, Albert Chan, was unable to continue as a candidate because Canadian administrative procedures did not enable him to relinquish his Canadian citizenship in time. The popular former Secretary for Health of the Hong Kong Government, Elizabeth Wong, who had been elected in 1995 in the Health Services workers functional constituency, a new large franchise constituency created under the Patten reforms, abandoned Hong Kong politics rather than renounce her New Zealand passport. Attempts have been made to justify this system by claiming that a genuine commitment to Hong Kong should require a candidate to relinquish a foreign passport. However the hypocrisy of this claim is evident from study of some of the functional constituencies, which actually have a majority of foreign companies making up their electorate (see Section 9).
5.12. During the passage of the legislation for the 1998 elections through the Beijing appointed Provisional Legislative Council the Council passed an amendment, supported by the two main pro-Beijing parties, the Democratic Alliance for the Betterment of Hong Kong and the Hong Kong Progressive Alliance, altering the electorate for the Social Welfare functional constituency. Prior to this amendment the electorate since the creation of that functional constituency had consisted of social workers, who have tended to support the Democratic Party, returning a democrat, Dr Law Chi-Kwong, with a large majority. The amendment extended the franchise in this constitutency to include representatives of Kaifongs. Kaifongs ( literally “street corners” are traditional Chinese self-help neighbourhood associations which pre-date the development of modern social work. Those Kaifongs which remain in existence in Hong Kong tend to be socially conservative and strongly pro-Beijing. This proposed change was strongly opposed by pro-democracy forces and by social workers who regarded it as a dilution of their professional status. It was also opposed by the administration on the practical ground that there was no legal definition of a kaifong nor any legal rules governing the structure or organization of a kaifong so that it was extremely difficult to devise a workable definition of the type of organization or person to whom the franchise was being extended. Nevertheless when the amendment was carried the Government did not seek to have it reversed.
5.13. In the event the number of kaifong representatives registered in the social welfare constituency did not come near the level at which Dr Law Chi-Kwong’s large majority could have been eroded. Possibly because of this no candidate chose to stand against Dr Law and he was elected unopposed.
6. The Ballot
6.01. Contrary to accepted international practice, Human Rights Monitor and the international observer teams were banned from entering polling stations on election day, although we were permitted to visit 2 polling stations on an “open day” the day before the poll to see the arrangements which had been made for it. This ban is discussed further in Chapter 7.
6.02. On polling day three teams each consisting of international observers with members of Human Rights Monitor acting as guides and translators spent the day visiting polling stations. As we were not allowed to enter the stations our teams visited the entry of each polling station, observed the location and spoke to as many voters and party workers from different parties as possible. In most polling stations we also spoke to presiding officers or their staff.
6.03. Polling day proved to be a day of drenching torrential rain which at one point threatened to necessitate the postponement of all or part of the poll, a special emergency meeting being held by the Electoral Affairs Commission to consider this possibility. As planned the observers spoke outside polling stations to a large number of voters and party workers, despite the severe weather. Nevertheless the requirement for the observers, who included a distinguished elderly Appeal Court judge from Sri Lanka, to remain out of doors in such weather conditions was a poor reflection on Hong Kong’s hospitality.
6.04. Polling stations visited were
Hong Kong Island
1. A1201 Sheung Wan Sheung Wan Post Office
2. C0201 Tai Koo Shing East Delia Memorial School
3. C1701 City Garden Covered Carpark at Govt. Supplies Dept.
4. C2001 North Point Estate U.C. Java Rd. Complex Indoor Games Hall
5. E0801 Tai Kok Tsui C.C.C. Kei Tsun Primary School
6. F0801 Lai Kok Lai Kok Community Hall
7. F1101 Mei Foo Mei Foo Sun Chuen Community Centre
8. G1301 To Kwa Wan To Kwa Wan Complex Indoor Games Room
New Territories West
9. L0102 Tuen Mun Town Centre Tuen Mun Town Hall
10. M0301 Nam Ping Long Ping Community Hall
11. M1901 Kam Tin Kam Tin Mung Yeung
12. S1901 Cheung Ching The Hong Kong Sze Yarp Commercial & Industrial
Association Chan Lai So Chun Memorial School
13. S2201 Shing Hong Lok Sin Tong Leung Chik Wai Memorial School
New Territories East
14. P0601 Yee Fu Fu Shin Community Hall
15. P1202 Lam Tsuen Valley Lam Tsuen Public School
16. R0401 City One Baptist Lui Ming Choi Primary School
17. U701 Butterfly Bay Community Centre
ZEC02 Hong Kong Convention Centre
6.05. On the whole as expected the poll itself appeared to be well organised and honestly conducted. At most of the polling stations visited polling was taking place entirely in accordance with the approved electoral arrangements and voters were casting secret ballots without interference or intimidation. This was not however invariably the case.
6.06. Serious irregularities were witnessed at the polling station at Kam Tin in the New Territories North West Constituency, involving intimidatory canvassing within the precincts of the polling station. The polling station was within a school, and the school playground and the area of the adjacent road were designated as a “no canvassing” area within which canvassing was not permitted. The area so designated was marked on a map displayed at the entrance to the playground. The observers saw some 7 or 8 supporters of the Rural Alliance candidate, Lam Wai-Keung, in defiance of this prohibition of canvassing, standing across the entrance to the playground, in the restricted area, to canvass voters. Most of these canvassers were wearing armbands or other emblems which clearly identified their affiliation, as recommended in the official guidelines issued by the Electoral Affairs Commission. One of them however, who was not wearing anything to identify her, was not merely standing in the entrance to the playground, but was accosting each voter who appeared and then walking with the voter across the length of the playground up to the door of the room in which voting took place, arguing with them. A policeman was present watching this activity but taking no action. When Human Rights Monitor observers asked the policeman to take action to prevent this interference with the poll he refused to do so, and also refused to give any reason for his refusal. Members of the Monitor then asked to see the Presiding Officer and explained the position to him. The Presiding Officer then spoke to the policeman who detained the woman concerned. As Monitor and international observers left in a mini-bus the woman broke away and tried to break a window of the mini-bus with her umbrella.
6.07. These intimidatory tactics may have influenced voter turnout or possibly even voter preference in the Kam Tin area. It is not known for how long before the arrival of the observers at about 12.00 midday the intimidation had been going on not whether it resumed after the observers left. In the view of the observers the degree of pressure being exercised by the canvassers would have been a serious nuisance to any voter and might well have frightened some, particularly if the canvassers were known to them personally, as is more likely in a rural area such as Kam Tin. More serious was the complete refusal of the policeman responsible for order at the polling station to take any action to prevent the unlawful canvassing until spoken to by the presiding officer.
6.08. It is difficult to assess how serious the problem seen at Kam Tin is. Kam Tin, a group of large New Territories villages, has enjoyed a reputation for truculent independence ( it was the one place where there were serious armed resistance to the British invasion in 1898). In the New Territories West constituency which includes Kam Tin, there was a hard-fought battle for the last place in the 5 member constituency between Lam Wai-Keung and the pro-democracy activist Leung Yiu Chung, who was in the event successful. While Kam Tin was in a sense an obvious potential trouble spot, it seems unlikely that it was the only polling station at which intimidatory tactics were being used. Similar tactics occurred at a number of rural polling stations at previous elections and it seems likely that Kam Tin was representative of a number of other rural polling stations in this election also.
6.09 The observers did not witness any intimidatory canvassing in the urban areas where the large majority of the population live. However the Electoral Affairs Commission in its report to the Chief Executive on the election records that it received 244 complaints of illegal canvassing in polling stations or in no canvassing zones.
6.10. A very different issue arose in the Sham Sui Po polling area in Kowloon. Sham Sui Po has traditionally been a stronghold of the Association for Democracy and People’s Livelihood led by Frederick Fung Kin Kee. On this occasion in the proportional representation election for the Kowloon West geographical constituency there was a close contest for the last seat between Mr Fung and the leader of the pro-Beijing DAB, Tsang Yok-Sing, who in the event defeated him. The organiser for the ADPL in Sham Sui Po alleged to the observers that she was in an impossible position in trying to fight the campaign because while she had 20 helpers, who were genuine volunteers, the DAB had hundreds, who were not real volunteers but persons employed by pro-Beijing firms who were expected to assist as part of their employment.
6.11. This type of allegation has been made previously in Hong Kong elections in relation to the DAB. It is one that it easy to make and hard to prove. It should be noted that the election was on a Sunday, and many offices will therefore have been closed. It is therefore unlikely that many firms instructed their employees to work for the DAB on election day instead of reporting to their normal place of work. If there was an informal understanding in some firms that employees were expected to do so this may never have been recorded.
6.12. The count, which was open to the public, appeared to run relatively smoothly. There was no repetition of the scandal which had occurred in the Kowloon South East Constituency at the previous election in 1995, when 1000 votes were mistakenly deducted from the total of the winning candidate, and the mistake only discovered when the loser of what because of the mistake appeared to be a close race, demanded a recount.
6.13 Some delays and difficulties occurred in the count for the Election Committee election on 2 April. According to the report on the election prepared for the Chief Executive by the Electoral Affairs Commission these problems in April enabled the Commission to take additional steps to ensure that the main count in May ran smoothly.
7. The role of the Electoral Affairs Commission and the exclusion of international observers from polling stations
7.01. The Electoral Affairs Commission had three members, a core staff complement of about 100, and about 13,500 temporary staff for the election. It was chaired by Mr Justice Woo Kwok-Hing who had carried out a similar job in relation to the 1995 election. The other two Commission members were Mr Norman Leung and Mrs Elizabeth Shing. Mr Justice Woo is widely respected in Hong Kong as a figure of integrity and political impartiality, and as a person of great energy and commitment to duty. The relative efficiency of the registration exercise, the poll and the count undoubtedly owe a good deal to his efforts and those of his staff, and Hong Kong was fortunate to have him in post. However it would be wrong for a watchdog organization such as Human Rights Monitor to ignore or gloss over some serious mistakes which we believe were made by the Commission.
7.02. The Electoral Affairs Commission is not of course in any way responsible for the anti-democratic electoral law which has been promulgated. The Chairman has moreover been punctilious in avoiding any situation in which a possible imputation of political bias could be made. Nevertheless we consider that two mistakes were made by the Commission which had a damaging effect on the election’s credibility, particularly overseas. These are the banning of international observers from polling stations, and the banning of logos of political parties from the ballot paper. In addition we consider that the rules for display of election advertisements (both in this election and in 1995) were so restrictive as to constitute an unacceptable infringement of free speech. The provision of polling stations for the election committee election was clearly inadequate. The decision of the commission to issue private guidelines to returning officers which mis-stated the law and were in conflict with the official published guidelines has led to litigation and a by-election. Finally, the chairman of the Commission played an active part in encouraging voter registration in the functional and election committee constituencies as well as in the geographical constituencies, a controversial move in view of the opposition of the majority of the electorate to the existence of the former.
7.03. The Electoral Affairs Commission has submitted a substantial report on the elections to the Chief Executive. This addresses some of the issues mentioned in the previous paragraph, and we respond in the next section to the points made in that report.
Banning of international observers from polling stations
7.04. At an early stage before the election campaign the Chief Executive Tung Chee Hwa stated his opposition to observation of the Hong Kong election by outsiders. When he met a delegation of visitors to Hong Kong from the European Parliament, led by Graham Watson MEP, on 2 November 1997, he told them that they would not be permitted to return as a delegation to watch the elections. It is not clear on what legal basis Mr Tung made this statement, as all European Community nationals are permitted visa –free visitors entry to Hong Kong.
7.05. The Hong Kong Government subsequently tried to defend its decision by stating that “observers” were welcome but that “monitors” would not be tolerated. This distinction appears to have been based on the supposition that monitors would actually intervene in the electoral process if something occurred of which they disapproved. That would obviously be quite wrong and an abuse, but is certainly not what Mr Watson meant by monitoring. Mr Watson, a British Liberal Democrat MEP with a long-standing involvement with Hong Kong, was well-known to Mr Tung, and it should have been obvious to Mr Tung and his advisers that Mr Watson had no intention of doing anything other than observing and commenting in the manner which has become traditional for international observers in most countries at election time.
7.06. The suggestion that “observers” were “welcome” although “ monitors” were not, was not borne out by the attitude of the Electoral Affairs Commission to the issue of whether such observers would be permitted to enter polling stations.
7.07. Although the Commission claims to act wholly independently, it followed Mr Tung’s lead in taking the very unusual step of banning foreign observers from visiting polling stations. This ban was announced in February 1998. On 19 March when meeting a delegation from the United States National Endowment for Democracy, Mr Justice Woo said that overseas election observers were tampering with the principle of Hong Kong people ruling Hong Kong by demanding access to polling stations. He told the NDI delegation, which consisted of the former US Attorney-General Dick Thornburgh, the former Foreign Minister of Bangladesh Dr Kamal Hussein, and Chomlai Somlaor of Thailand “ You are also usurping my function and that’s going against the law”. He added that there was adequate monitoring of the poll by the candidates. When pressed further by journalists as to his ban on access for foreign observers Mr Justice Woo commented that people would think he was “as stupid as a pig” if he allowed foreign observers to attend.
7.08. The strength of the Government’s and the Electoral Affairs Commission’s refusal to permit foreign observers to attend was very surprising in view of the fact that there was no reason to think that the Government would have anything to hide in relation to the ballot. In the short period that Hong Kong had elections before 1998 there had been no history of improper interference with the ballot by either the Government or any political group. The registration of electors, the poll and the count had generally been conducted in a professional and impartial manner in the elections held in 1985, 1988, 1991 and 1995.
7.09. Human Rights Monitor formally requested Mr Justice Woo to reconsider his decision at a meeting on 20 April 1990. Mr Justice Woo refused to do so, stating that other countries did not allow such observers, and citing as an alleged example New Zealand. Human Rights Monitor made inquiries in New Zealand and received a letter from the Chief Electoral Commissioner of New Zealand (Mr Justice Woo’s opposite number there) stating that international observers are permitted to enter polling stations in New Zealand, that a number had attended the last New Zealand elections and that this had presented no problems and “was a common event throughout the world” (copy letter at Appendix 6 ). Unfortunately this letter was only received in time to put it before Mr Justice Woo the day before the poll, when it was too late to reverse the whole Commission’s decision, and the ban on foreign observers entering the polling stations was maintained.
7.10. Human Rights Monitor despite extensive enquiries has not been able to find any other country with even the most limited pretensions to freedom where foreign observers are banned from entering the polling stations. Not only do foreign observers frequently attend the elections in well-established democracies such as the United States and the United Kingdom, and in less well-established democracies such as South Africa. Such observers are also usually permitted even in countries where the election itself does not meet international standards of freedom and fairness, as hitherto in Indonesia and in Nigeria. To exclude foreign observers from the polls would normally be associated with the most extreme forms of election rigging and /or intimidation.
7.11. In the event, as expected, there was no evidence of polling or counting impropriety in the Hong Kong elections. There was limited evidence of intimidation in rural areas ( see previous section) but no evidence that it was in any way organised by the Government, which we consider utterly unlikely. In these circumstances the attitude of the Government and of the Electoral Affairs Commission is bizarre, and has done wholly unnecessary damage to Hong Kong’s reputation as a free society.
7.12. The motive for the Commission’s decision can be discerned from the post-election report prepared by the Commission for the Chief Executive. The Commission appears to be obsessed with the idea that the sight of international observers could be interpreted by the public as meaning that the observers were there to interfere with the election, and it takes the view that this danger outweighs the danger of giving the impression of having something to hide by not letting observers in. No evidence is presented that any section of the public does hold the view that international observers are there to interfere with the election. Even if that could be shown, the correct course in that situation would be to explain the true position, as the Commission does in relation to many other aspects of the election.
7.13. Underlying the Commission’s stance appears to be a completely misguided belief that having such observers is in some way a sign of weakness and of failing to achieve an end to colonial rule. At the meeting on 20 April with the Monitor to discuss the issue Mr Justice Woo suggested to the then chairman of Human Rights Monitor (who is British) that he really wanted colonial rule to continue. Mr Justice Woo appears to have wrongly assumed that observers would invariably be from Western countries. The regrettable result of this prejudiced attitude has been to damage the Commission's own credibility quite unnecessarily.
Logos and team names
7.14. The Commission appears to have taken the decision to ban logos and team names from the ballot paper though it is possible that this decision was prompted informally by Government.
7.15. The Commission’s reasoning for banning logos and team names is set out in its report to the Chief Executive which we quote in full below:-
“If team names on the ballot paper are allowed there could not be any justifiable reason to deny independent candidates describing themselves as “independent”. If there are more than one independent candidate contesting the same constituency, allowing all such candidates to describe themselves on the ballot paper similarly as “ independent” would confuse the electors.”(page 62)
The Commission appears to recognise the weakness of this argument as it has recommended that this issue should be reconsidered for the 2000 election.
7.16. By law election advertisements may only be displayed in a certain number of designated locations. Approval of the locations is first done by the Electoral Affairs Commission. If they are on private property approval of the owner must then be obtained. The aim of the provision appears to be to limit candidates or parties to a roughly equal number of advertising posters. However if supporters of a candidate wish to put up posters for that candidate on their own property that is their right, and it would seem to be a restriction of their freedom of expression to prevent them from doing so on the basis that the candidate they support already has his quota of display locations, or that the supporter’s window is not a designated location.
Election Committee polling stations
7.17. The election on 24 May was held on a Sunday. The election for the Election Committee on 2 April was held on a working day. For many of the subsectors there were only two polling stations, one in Hong Kong and one in Kowloon. This made it extremely difficult for a working person to vote. Many democratically minded people would argue that the election committee, with its appointed members and corporate voting, is such a farcical arrangement that having proper polling for it hardly matters. Nevertheless it is the responsibility of the Commission to make adequate arrangements to enable those who wish to vote to do so. The problems in this area are acknowledged by the Commission in its report.
The internal guidelines and the Regional Council Functional Constituency ballot
7.18. The Commission is not primarily to blame for the difficulties which have arisen in the Regional Council functional constituency. This constituency is one of the two smallest, with only 50 voters. It has a tradition of impropriety. Following the 1991 election the elected member, Gilbert Leung, was found guilty of corruption in relation to his election and imprisoned. Following the 1998 election in which Dr Tang Siu-Tong was elected by one vote, the defeated runner-up Anne Chiang petitioned the High Court on the basis that the returning officer had wrongly allowed certain ballot papers as valid which were marked with a tick and not with a number as required by the electoral regulations. In the course of the hearing it transpired that as well as the official guidelines published by the Electoral Affairs Commission which stated that only a number was acceptable for the casting of a valid vote there were also unofficial guidelines to returning officers, also issued by the Commission, which stated that a tick was an acceptable alternative. The judge hearing the petition found that the requirement that only a number was acceptable was a mandatory requirement, that the ballot papers with ticks should not have been allowed, and that, as the result, after the deduction of the invalid votes was a dead heat, the election of Dr Tang was therefore invalid. The judge found that there was in fact no doubt that the voters who marked their ballot papers with ticks intended those ticks as votes for the candidates next to whose names they had placed them. At the subsequent by-election in October 1998 Dr Tang was comfortably re-elected.
7.19. The result of this chain of events was that the will of the voters was frustrated, since it is a fact that the majority of the voters first time round, favoured Dr Tang. Common-sense and fairness suggest that where the intention of the voter is clear the vote should be treated as a valid vote. The fact that Hong Kong law does not allow this is a defect in the law which should be amended. The effect of the Commission issuing guidelines which did not reflect the law, albeit with the laudable intention of applying common-sense to the voting procedure, has had the unfortunate effect of leading to an annulment and a by-election. It is not known whether the Commission’s internal guidelines were issued after obtaining legal advice. It is quite possible that this was obtained, since the subsequent decision in the election petition was not one that could necessarily have been predicted.
8. The Results
8.01. In the first SAR election there was a record turnout of 53% or 1.49 million voters. This was the first time that the turnout in a Hong Kong election had exceeded 50%. This high turnout was not predicted by any political commentators. On the contrary it had been widely suspected that turnout would be lower than in 1995 because of voter apathy or disillusionment. Equally no satisfactory explanation has yet been given for the high turnout which occurred so unexpectedly. One possible factor is that the election was fought on a much more up-to-date register than in the past and that unlike in previous elections a large number of names of people who had in fact moved, emigrated or died were removed from the register. However this cleaning up of the electoral register could not alone account for an increase of over 10% on the turnout figure for 1995. Part of the reason may be that some people who had not been interested in voting for a colonial Legislative Council did choose to vote in the historic first election for the Hong Kong Special Administrative Region of the People’s Republic of China. Equally it is possible that many voters, aware that they have little say over the activities of an executive led government, wanted to express their feelings in one of the few ways open to them of exerting some political pressure by turning out to vote for legislators who might exert some control over the government, especially at a time when the Government was being severely criticised for failing to maintain the economy. It has also been suggested that a high turnout was encouraged by the decision of the Electoral Affairs Commission to issue two commemorative voter cards one of which would be sent to each elector, and the second of which would be issued to those who had voted. After this decision had been taken some businesses offered consumers small discounts on production of both of these cards. The Hong Kong public are traditionally known to be very bargain-conscious and it was suggested this could have increased the turn-out. Subsequent opinion research by the Hong Kong Transition Project team at the Hong Kong Baptist University shows that these cards in fact played a very limited part in the election. On a scale of 0 to 9 of importance to the voter, getting the commemorative cards scored at 2.26, as compared with “Exercising my rights as a citizen” which scored at 7.58. As a person responding to this survey would not be restricted to a single reason for voting but might be expected to give several the number of mentions for the cards is so low that they probably cannot account for the increase in turn-out. Previous research by the same team at the Baptist University has suggested that up to 15% of the electorate had rejected participation in the colonial era elections because they were colonial and/or undemocratic. The present election was not colonial and should therefore have attracted the votes of those who previously abstained for that reason. If there was such an effect one might expect an increase in the size of the vote for pro-Beijing parties, which in fact occurred. However the present election was less democratic than the 1995 Patten election, so those who previously did not vote because they rejected the system as undemocratic might have been expected to stay away. In the absence of more detailed research on voters’ reasons for voting it is impossible to say with certainty how significant any of the above factors were but in our assessment it is likely that each of them played some part.
8.02 Voting figures by constituency are set out in Appendix 7.
8.03. More than 60 % of the vote in the direct elections went to pro-democracy candidates, who under the proportional system won 14 of the 20 directly elected seats. The Democratic Party won 42% of the popular vote and 9 directly elected seats. The Frontier with just over 10% of the vote won 3 directly elected seats. One directly elected seat was won by a former member of the Frontier running the banner of a local community organization, and one seat was won by the leader of the Citizen’s Party. Of the pro-democracy groups only the Association for Democracy and People’s Livelihood narrowly failed to obtain representation. The overall percentage of the vote won by pro-democracy candidates was very similar to the 1995 election.
8.04. 25% of the vote was won by the pro Beijing Democratic Alliance for the Betterment of Hong Kong, which won 5 of the directly elected seats. This was an increase in support over 1995 and confirms the DAB as a major political force in the territory. However the extent of the increase in the DAB vote is less than it appears at first. On paper the DAB only won 15% of the vote in 1995 and has increased its vote by 10%. In fact in 1995 not all DAB supported candidates officially stood under the DAB banner. Some, such as Mrs Elsie Tu, were officially independents but received strong DAB support. When account is taken of these 1995 candidates the DAB’s share of the 1995 vote is 22%. The increase of 3% in 1998 is therefore significant but not dramatic.
8.05. The pro-business Liberal party performed poorly, winning less than 4% of the popular vote, with its leader, Allen Lee, losing the party’s only previous directly elected seat.
8.06. The only remaining directly elected seat was won by a non-aligned independent, the former speaker of the colonial Legislative Council, Andrew Wong Wang-fat.
8.07. As was known in advance, however, the overall composition of the Legislative Council was dramatically different because of the impact of the functional constituencies and the election committee. The Democratic party obtained an additional 4 Legco members from functional constituencies giving it a total of 13 seats. One other pro-democracy independent, Ms Margaret Ng, was elected from the Legal functional constituency, giving the pro-democracy forces a total of 19 seats out of 60 ( the same as in 1991). The Liberal Party had 7 legislators elected from functional constituencies and one by the Election Committee, giving it 8 seats. The DAB, which gained 5 seats in the geographical constituencies, gained a further 3 seats from functional constituencies and a further 3 from the Election Committee giving it a total strength of 11. The pro-Beijing Hong Kong Progressive Alliance which did not contest any directly elected seats won one seat from the Import and Export Functional constituency and 4 seats from the election committee giving it a total strength of 5. The remaining seats were won by candidates who were officially non-affiliated, although many of them are in fact known for their pro-Beijing stance.
8.08. A detailed breakdown of the share of the vote won by different parties is at Appendix 8, and the full results for each constituency are at Appendix 9.
9. Voting by corporations
9.01. As part of its study of the election Human Rights Monitor has carried out a detailed examination of the registration of corporations in some of the functional constituencies. Figures for elector registration for each of the functional constituencies are at Appendix 10. It will be seen that there are very great differences in the size of these electorates. The largest, the Education Functional Constituency, has 61,290 registered electors. The smallest, the Urban and Regional Councils, had 50 each. As might be expected the largest functional constituencies tend to be those with individual as opposed to corporate voters. Second largest is the Health Services constituency with 27,487 registered voters. Third is accountancy with 9902, followed by Medical with 6709, Engineering with 5353, Legal with 3567, Architecture with 3218, Social Welfare with 3209 and Information technology with 3147. It is significant that it is among this group of functional constituencies that all the constituencies which elected pro-democracy candidates are to be found.
9.02. In contrast the majority of the functional constituencies have electorates of less than 1500 voters, and among this group many have corporate voting. The five smallest constituencies apart from the Urban and Regional Councils are the Heung Yee Kuk rural organization with 132 voters; Agriculture and Fisheries with 165; insurance with 196; transport with 137; and Finance with 207. Apart from the Heung Yee Kuk these electors are all corporations. Between them these 837 electors elect the same number of Legislative Council members as one quarter of the total registered electorate of Hong Kong – 698,843 people - in the geographical constituencies.
9.03. However these simple figures do not convey the true picture because the real electorates of these small functional constituencies are actually even smaller than the official figures. This is because manipulation of the corporate veil enables a single organization to have more than one vote. Thus in the banking functional constituency many banks have two votes, one through their banking company and one through their finance company. Some do not stop at 2. The Hong Kong and Shanghai Bank, the Kincheng Tokyo Bank, the Hang Seng Bank and the Bank of East Asia each have 3 corporate votes through different subsidiaries. As the Hang Seng Bank is itself a subsidiary of the Hong Kong Bank the Hong Kong Bank group has 6 votes in this constituency. The member elected for this constituency, Mr David Li, is the chief executive of the Bank of East Asia and so is in a position to control 3 votes for himself through organizations he controls. ( In addition Mr Lee of course has control of a further 3 votes in the banking subs-sector of the election committee, as well as his personal vote in the geographical constituency, so he controls a total of at least 7 votes in the Legco election). If second or third votes by companies which are obviously part of the same group are discounted, the real electorate of the banking constituency drops from 207 to no more than 178.
9.04. A similar phenomenon operates in the insurance constituency, where many insurance groups have votes for separate companies dealing with different aspects of their insurance business. 19 insurance groups have registered more than one company and so have more than one vote. Eagle Star, the Winterthur group and the Axa group have three each. The Hong Kong and Shanghai Bank insurance arm has 5. When this double, treble and quintuple voting is discounted the real number of organizations controlling votes in the insurance constituency falls from 196 to 169.
9.05. However the lower figure after this reduction still does not give the true figure for the number of organizations controlling votes because many commercial groups through their subsidiary companies control votes in more than one functional constituency. Thus as indicated above the Hong Kong and Shanghai Bank controls 6 votes in the banking constituency and a further 5 votes in the insurance constituency giving it control of 11 votes in these two constituencies alone. A total of 9 other banks have insurance subsidiaries registered as electors in the insurance constituency, with 2 of them, Bank of China and Sumitomo, having two companies registered. If these banking subsidiaries are disregarded the electorate of the insurance constituency falls further to 158.
9.06. This type of multiple voting can be discerned by simply examining the electoral register. What cannot be taken into account without an encyclopaedic knowledge of company ownership is the number of companies which have no connection on their face but which are in fact in common ownership. It is common knowledge that the Hang Seng Bank is part of the Hong Kong Bank group. However there must logically be a large number of other registered corporate electors which are part of a group of companies and not independent. The true number of genuinely separate entities among the registered corporate voters is therefore certainly considerably lower than even the lowest figures set out above. Unfortunately the true figure can only be established by exhaustive research.
9.07. Some research was conducted into multiple voting in functional constituencies after the 1991 Legislative Council election for the ADPL by Mr Yau Shing Mu ( now of the Economic Times newspaper. This revealed that Mr Lee Shau Kee the owner of Henderson Land Co, one of Hong Kong's largest property developers, had a total of 21 votes under his control in the Real Estate constituency. He had a personal vote, the vote of his flagship company, Henderson Land Development Ltd, and the votes of 19 subsidiary companies. In addition another subsidiary, Henderson Development Limited was registered in the Commerce One Constituency, and another, Henderson International Finance Limited, was registered in the Finance constituency. This was one of a number of similar instances discovered by Mr Yau.
9.08. Human Rights Monitor has attempted to identify some of the more obvious examples of multiple voting by looking at the registered addresses of electors in the real estate constituency. Appendix 11 lists the electors in this constituency which are registered at the same address. Once these same address companies are discounted the electorate in this constituency falls from 410 to 354. Moreover no less than 17 companies are registered at the Salisbury Road, Tsim Sha Tsui address of the Sino-Land group of companies owned by Mr Robert Ng. Mr Ng who is also entitled to a personal vote in the same functional constituency, thus controls between 3 and 4 % of the official registered electorate in this constituency, and about 5% of the real electorate after allowing for multiple registrations by persons other than himself. This would be equivalent to wielding 15,490 votes in the Hong Kong Island geographical constituency. Mr Ng additionally controls 2 votes in the Tourism constituency, through his hotel management holding company and through his ownership of the City Garden Hotel, both of which are registered voters in that constituency. Mr Ng is therefore known to control 20 votes in the functional constituencies, with their equivalent 20 votes in the election committee election, as well as his personal vote in a geographical constituency, giving him a total of 41 votes in the Legislative Council election.
9.09. Human Rights Monitor has no means of establishing whether there are similar multiple registrations which have been disguised by not registering all the companies at the same address.
9.10 Examination of the small Transport constituency is a little easier than some others because ownership of the major transport operators in Hong Kong is relatively easy to establish. Enquiries have shown that some of the major property developers which hold multiple votes in the real estate constituency have also accumulated additional multiple votes in this functional constituency. Thus Mr Walter Kwok’s Sun Hung Kai group, which holds 13 corporate votes in the real estate constituency, also owns Kowloon Motor Bus and Wilson Car Parks which have votes in the Transport constituency. With his personal vote and his companies' votes in the functional constituencies and election committee subsector elections Mr Kwok controls at least 31 votes in the Legislative Council election. It is possible that he may control still more, as Sun Hung Kai owns 2 hotels, the Royal Park and the Royal Garden, both of which are registered voters in the Tourism functional constituency.
9.10. Another multiple voter hiding behind the corporate veil in the Transport constituency is the Wheelock/Wharf Group, the family company of Mr Peter Woo, a former candidate for chief executive of Hong Kong. Wharf/Wheelock control the Star Ferry Company, Hong Kong Tramways, the Cross Harbour Tunnel Ltd, Metropark Ltd ( car parks), Modern Terminals Limited, and the Hong Kong School of Motoring, giving the group control of 5 votes, in addition to its 3 votes in the Real Estate constituency. Again, through his personal votes and the votes of his companies in the functional constituencies and the election committee sub-sectors Mr Woo controls at least 17 votes in a Legislative Council election.
9.11. These instances of multiple vote banks controlled by very well known commercial organizations are undoubtedly merely the tip of the iceberg of multiple corporate voting. Provided that the necessary company law formalities are gone through there is no legal barrier to an individual setting up multiple companies in order to gain votes in a functional constituency. The law does prohibit the same person from being both an individual voter and an authorised representative of a corporate voter in a constituency in which both individual and corporate voting is allowed. However there is nothing to prevent a person from registering shelf companies, instructing others, who may be relatives or employees, to be the officers and authorised voting representatives of those companies, and then instructing those authorised representatives to cast their votes in accordance with directions given by the person who is the directing mind of the operation. A spokesman for Sino-Land, the organization controlled by Robert Ng, has denied that any such manipulation was planned by Sino-Land when so many companies were registered at the Sino Land address as voters in the real estate constituency, on the basis that those companies have been registered for 10 years. However the reason for the denial is unconvincing, as functional constituencies have existed for the last 13 years, and there was a Legco election 10 years ago in 1988. Indeed strong suspicions remain that a large scale exercise of registration of shelf companies may have been undertaken in the Commercial (First) constituency in the 1991 Legco Election. The electorate for that constituency was then and is now members of the Hong Kong General Chamber of Commerce, who may be individuals or companies. During the half –year period prior to that election the General Chamber of Commerce enrolled more than 400 companies – 3 times higher than the average annual intake of new members. It has been alleged that some of these 400 companies were formed by Mr Paul Cheng, a candidate in that election, and Mr James Tien, who now represents the constituency, to counter another contender, Mr Jimmy Macgregor. However as far as Human Rights Monitor can establish no steps have ever been taken to investigate this issue.
9.12. The 1998 election did however reveal another instance of the ease with which the functional constituency electorate can be manipulated. This occurred in the Information Technology Functional Constituency, and involved a pro-Beijing candidate, Mr John Tse Si-Yin, who is deputy director of the Hong Kong Hospital authority. Mr Tse was the Vice-Chairman and Honorary Secretary of a society called the Hong Kong Society for Medical Informatics, an organization whose members have voting rights in the Information Technology functional constituency. In January 1998 it cost HK$50 to join that society and unlike many professional bodies, those who joined gained immediate voting rights. In the two months deadline before the Society had to submit its list of members for inclusion in the electoral role, the membership of the society doubled from about 400 to about 800. The total electorate in the Information Technology functional constituency registered for the 1998 election was 3147. According to the chairman of the Society, Dr Wong Chun-Por, about 150 of the 400 new members were subordinates of Mr Tse at the Hospital Authority. The situation came to light after a newspaper revealed that Mr Tse, who was also the convenor of a committee of the Telecommunications Authority (OFTA) had required junior staff at OFTA to send faxes to 50 potential voters urging them to join the Society for Medical Informatics. Ironically Mr Tse was shortly afterwards found to be ineligible to be a candidate in the information technology functional constituency because he held a British passport.
9.13. It would be very surprising if there were not other similar instances which have not come to light.
9.14. Another constituency which seems particularly open to manipulation is the new agriculture constituency. Prior to the present election agriculture formed part of the primary production constituency and every farmer, fisherman or horticulturalist had a vote in it. Since the Tung changes only organizations have a vote, and each organization has one vote irrespective of membership numbers. Agriculture has been a moribund industry in Hong Kong for many years and it is difficult to establish how many of the agricultural organizations registered as electors are in fact functioning organizations and how many are mere relics registered for the purpose of the election. However we note that Po Toi island, which is now believed to have less than 10 households, has two separate fishing co-operatives registered as voters, one of which is not registered on Po Toi. We therefore believe that the electorate for the agriculture constituency is padded out with bodies which are not genuine functioning agricultural organizations.
9.15. It will be apparent that the smaller functional constituencies are not merely “ rotten boroughs”, as they were described by former Governor Patten, but are as rotten as the worst of the 18th century English boroughs for which this term is coined. Indeed the similarity between Po Toi, and Old Sarum which in the early 19th century returned a member of Parliament although it had only 3 inhabitants, is striking. It is contemptible that Mr Patten’s predecessors should have introduced into Hong Kong in the 1980s a system which had been abolished in England in 1832 following civil unrest.
9.16 Finally, as emphasis has been placed by the Government on the necessity that politicians who stand in the geographical constituencies should not have foreign passports, it should be noted that a very substantial proportion of the electors in the banking and insurance constituencies are Hong Kong branches of American, British and other overseas companies. The Government does not appear to see any inconsistency in banning from the election Mrs. Elizabeth Wong, a Hong Konger who spent her working life as a Hong Kong civil servant, because of her New Zealand passport, and at the same time giving special voting advantages in the election to foreign companies.
10. Looking to the future – the 2000 and 2003 elections
10.01. The next Legislative Council election is due in the year 2000, less than 2 years away. As part of the “gradual and orderly progress towards full democracy” to which the Basic Law commits Hong Kong the number of directly elected seats for that election is to be raised from the present 20 to 24 at the expense of the Election Committee whose seats will be reduced from 10 to 6.
10.02. It is worth considering what effect such an arrangement would have had if it had been in place for the present election. None of the persons “elected” in 1998 from the Election Committee are pro-democracy and nearly all are committed supporters of Beijing. If they were replaced by the 4 persons who under the present arrangements in the geographical constituencies were the nearest non-elected runners-up the results would have been as follows. An additional seat in New Territories West would have gone to Lam Wai-Keung of the Rural Alliance. An additional seat in New Territories East would have gone to the defeated Liberal Party leader Allen Lee. An additional seat in Kowloon would have gone to Frederick Fung of the ADPL. An additional seat on Hong Kong Island would have gone to Chong Chan-Yau, an independent candidate who is blind and campaigned in particular to draw attention to the position of persons with disabilities. None of the seats would have gone to persons committed to the pro-democracy group of parties consisting of the Democrats, the Frontier and the Citizens party or to committed pro-democracy independents. The change which is planned for 2000 will therefore, if the voting preferences remain unaltered, do nothing to redress the situation under which pro-democracy candidates gain 2/3rds of the votes and less than 1/3rd of the seats. It will on the contrary increase the representation of the business interests which are already over-represented. (Mr Fung, who would gain a seat, is no longer closely associated with the main pro-democracy group). There will of course always be changes in candidates between one election and the next, and it may be that this assessment proves to be too pessimistic, but it is unlikely that there will be any substantial increase in pro-democracy members.
10.03. Looking somewhat further ahead, the situation for the following election, scheduled for 2003, is very much less clear. Under the Basic Law, the Legislative Council to be elected at this election, the third after the handover, is to consist of 30 functional constituencies and 30 directly elected seats. If the Government adheres to this requirement it is possible that the pro-democracy forces would gain a majority in the Legislative Council. Much will depend on the changes in the level of the pro-democracy vote over the considerable intervening period between 1998 and 2003 and prediction over such a long period is obviously difficult. However the stability of the pro-democracy vote going back to 1991 raises at least the possibility that the level of support will remain about the same.
10.04. Assuming the same proportion of the vote for the pro-democracy parties in 2004 as in 1998 about 20 of the 30 directly elected seats would be won by pro-democracy candidates. In addition there would be about 5 pro-democracy candidates elected in the functional constituencies. This therefore does not quite produce a pro-democracy majority, although it gives the pro-democracy groups a much stronger position than at present. In particular, it would mean that no law could be passed against the wishes of the pro-democracy camp, because of the requirement that voting be bicameral, and that a law be passed by a majority of both of the chambers. At present these two chambers are the functional constituencies chamber on the one hand and the geographical constituencies and election committee chamber on the other. When the election committee has disappeared the directly elected chamber is likely to be dominated by pro-democracy forces.
10.05. It would take only a small increase in the strength of the pro-democracy forces for them to gain a majority in 2003. A small increase in their share of the popular vote could bring their share of the geographical constituencies to 23 or 24, giving them 28 or 29 seats with their traditional functional constituency support. If in addition one or two more functional constituencies fell to them, perhaps because of the small electorates being cultivated over the intervening period by pro-democracy individuals, it is not impossible that they would gain a narrow majority.
10.06. It is of course equally possible that the level of support for the pro-democracy camp would fall back slightly and that this would mean that the increase in their number of seats as between 2000 and 2003 would be quite small.
10.07. However as soon as the pro-democracy camp gain a blocking majority in the Legco a constitutional crisis will arise. This is because under the Basic Law Legco votes as two chambers, with one chamber made up of members elected by functional constituencies and the other made up of members elected from geographical constituencies and from the Election Committee. Legislation must be passed by both chambers to become law. If the pro-democracy legislators are able to control just one chamber of the Legco they will be able to block the Government’s programme, but the Government will at the same time be able to block any positive initiatives which they may take. This will paralyse the governmental process with very unpredictable consequences. It might lead to negotiations resulting in a greater say in Government decision making being given to the majority in the Legco. Equally it might, depending on who the Chief Executive is at the time, and on the current political climate in Beijing, be seized on by the authorities as a pretext that “One Country, two Systems” was not working, and as an excuse for repression.
10.08. A further imponderable is the economic situation and how this will affect the political climate. A serious economic crisis badly handled by a non-elected government will increase pressure for democratic accountability.
11.01. The Hong Kong Government is desperately opposed to democracy. This is clear from the elaborate lengths to which it has gone to reduce the franchise and create obstacles for the democratic parties in its framing of the laws for the 1998 election, in breach of the provision of the Basic Law requiring gradual progress towards full democracy. There is some doubt as to how far this opposition is reflecting the wishes of the Central People’s Government, and how far it reflects Mr Tung’s own political views and those of his close associates. Either way the implications for Hong Kong are serious.
11.02. It is quite possible that the Government will succeed in stifling democracy in Hong Kong. Hong Kong is part of a country of 1.2 billion people, with no democratic tradition. Most of Hong Kong's influential business elite are strongly opposed to democracy, and their voice is heard disproportionately in Government. The pro-democracy movement is divided, under-resourced, and having to compete with the Government, with the business lobby, and with the Democratic Alliance for the Betterment of Hong Kong (DAB), a party which apes the policies and style of the Democratic Party while remaining a centrally controlled and pro-Beijing on key issues.
11.03. Victory for the pro-democracy camp is not impossible even in these circumstances. Two-thirds of the population do support them, and most of the Hong Kong electorate is sophisticated enough to distinguish between real and fake democrats. However it is not enough for the pro-democracy camp to simply wait for time and promised constitutional change to give them a share of power. Power is unlikely to come to them unless they have a definite programme for Hong Kong’s constitutional future going far beyond a mere call for democracy. Nor is the policy commitment of the democratic parties to the direct election of the Chief Executive a sufficient policy. This will not even be considered by the authorities until after 2007, unless they are forced to do so earlier by pressure of events. What is needed for democracy to gain more adherents is a detailed programme for how it would operate, dealing with such issues as whether the leader of the majority party in the Legislative Council should be the Chief Executive, or if not what the relationship should be between them; whether there should be a Ministerial system of Government, in which the most important policy secretary posts in the Government were filled by politicians rather than civil servants; whether the Chief Executive’s Executive Council should have the role of a Cabinet; and how the Chief Executive, if not the same person as the leader of the majority party in the Legco, should decide from which political parties to make appointments to the Executive Council.
11.04. The government if it were committed to democracy would be canvassing views on such questions. However it is clear that the government, as it has no commitment to democratic change, will either fail to do this or will devise bogus consultation exercises designed to justify its inaction.
11.05. One way forward may be for the pro-democracy parties to convene a constitutional convention to agree a common programme not merely for the introduction of democracy but for the kind of democratic system which should be introduced. The formula of a constitutional convention has been used successfully as a means of regulating constitutional change in South Africa, Taiwan and Australia. The position in Hong Kong is more difficult because unlike in those countries there is not the Government open-mindedness about change which was present. However the more broadly based such a convention is the more likely it is that it will gather momentum and will indeed serve as a vehicle to bring about change. Our assessment is that this is the best chance of achieving democracy in Hong Kong and that if it is not attempted the prospects for democracy are very doubtful.
THE MONITORING TEAMS
42. The election was observed by the following :-
Human Rights Monitor team members
1. Paul Harris
2. Stephen Ng Kam- Cheung
3. Law Yuk-Kai
4. Mary Ignarski
5. Raymond Tsui
6. Yvonne Ho
7. Lai Wing-Yiu
8. Wilson Lau
9. Yip Tan-Ching
10. Belinda Winterbourne
11. Wong Hung –Hung
12. Victor Miu
13. Kevin Green
International Observers from the Regional Working Group for an ASEAN Human Rights Mechanism:
1. Praphan Hutasingh - Advisor, Parliamentary Committee on Justice and
Human Rights and Chairman of the Thai Working Group.
2. Charnchao Chaiyanukij - Assistant, Attorney General's Office, Thailand.
3. Miel Maraleda - member of the secretariat, Regional Working Group,
4. Carlos Medina - Secretary General, Regional Working Group, Philippines
5. Chandra Kanagasabai - Human Rights Lawyer in Malaysia.
6. Eva Dyson- member of Regional Working Group
International Observers from the Law and Society Trust ( Sri Lanka)
Justice K Palakidnar
2. Navin Perera
3. Rauf Hakim ( for the election committee election on 2 April)