Consultation Document on the Methods for Selecting the Chief Executive and for Forming the Legislative Council

in 2012
An independent view Lawrence Cheung, 19 February 2010

VISION STATEMENT:
We must incorporate Beijing’s reported desire for an “Executive led” government for Hong
Kong. It is currency in many countries; a notable example of Executive led” government is the
United States of America. I envisage the Chief Executive Hong Kong will be the
democratically elected head of government, empowered to constitute a cabinet of his/her
choosing. I envisage the whole of the legislature should be returned by popular vote.
Democracies are not without problems, thus we must ensure power and responsibilities of the
Executive branch are shared with the Legislature, which may or may not be of the same
political “colour” as the Chief Executive, and the judiciary, which needs to be totally
independent of the executive and legislative branches. The cohabitation which is likely to
occur at least some of the time under this governance model is a valuable constituent of the
checks and balances on the power of government. This separation of roles and the
independence of the judiciary from the political influence are key pillars which safeguard
individual liberties against abusive state power. Full democratic accountability of government
within the shortest framework possible must be the aim

DEFINITIONS
As none of the terms appear to be sufficiently clearly defined within the consultation
paper, it is important to first clearly position key terminology. In addition, many of the
variables are not specified, so I will make my own assumptions:
R
“ o a d m a p ” to universal suffrage is the strategy for Hong Kong to achieve
representative democracy in 2017/2020. Such a strategy must include a SWOT
analysis of the current situation and the advantages which full democracy will bring.
In addition, it should anticipate the difficulties which lie in the way, and include clear
ideas of how to overcome same.
“Universal suffrage” is to mean the universally accepted concept of “one man, one
vote” in a multi-party environment regardless of property requirements or other
measures of wealth; I would exclude tiered, weighted or differential-voting whether in
the form of corporate or other bloc-voting as being incompatible with this definition.
“broadly representative” means the representation of people of all sectors of
society, irrespective of income groups or social status.

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Consultation Document on the Methods for Selecting the Chief Executive and for Forming the Legislative Council in 2012
An independent view Lawrence Cheung, 19 February 2010

PREAMBLE
Hong Kong can be described as a mature, post-industrial society. Like other such
societies, it has democratic aspirations. Whilst on the surface, and thanks to support
from the Motherland and general adherence to the principle of “one country, two
systems”, Hong Kong enjoys economic prosperity; there are trends and
undercurrents which suggest that Hong Kong people are not at ease with
themselves. The unease is translated into people’s sensitivity to the great disparities
of economic and political power within various groups, and the propensity to rally to
“causes” as a means of venting their frustrations.
The stakes are high for societal harmony because such causes become lightning
rods of the accumulated discontent in the absence of a government which they feel
represents them and not the powerful business interests which already control the
commanding heights of our economy. The generation which marched peacefully to
reject codification of Article 23 of the Hong Kong Basic Law (“The Basic Law”) has
aged; the younger generation which replaced it in popular protests feels a visibly
deeper disenchantment with the society’s values of today. This makes them more
inclined to more radical forms of protests we have witnessed in recent months. As
such, the society is not arguably “harmonious”. The lack of harmony is further
testified to by the easily with which everyday issues are politicised; international
journalists have noted the escalating tide of protest at government actions/inactions
has been the result of unvented frustration of the lack of democratic accountability.
The public is also extremely sensitive to all appearances, real or imagined, of
collusive practices between government and business – such notions are difficult to
dispel with the existence of the current “institutionalised corruption” of the Functional
Constituencies (“FC”) – because the government relies on their support in LegCo.
The current legislature is half-popular and half institutional, and there is provision
within the Basic Law for eventual universal suffrage. The Government of the Hong
Kong SAR recognises the democratic aspirations and the concerns of the people,
and as such has declared to propose electoral reforms which move in the direction of
universal suffrage. The HK government proposed some ideas in its consultative
document in November 2009 based on its previous proposals of 2007, although this
has to be achieved through “gradual and orderly progress”- a key proviso of the
NPCSC.
The Standing Committee of the NPC (NPCSC) has endorsed ultimately allowing
universal suffrage in the CE elections in 2017, and the LegCo elections in 2020.
However, the NPCSC laid down a number of other constraints which include no
change in the ratio of functional to geographical constituencies, and adherence to
existing voting procedures within LegCo. I would agree with the consultation
document assertion that there is still scope for a meaningful increment in democracy
within the current proposal cycle.

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Consultation Document on the Methods for Selecting the Chief Executive and for Forming the Legislative Council in 2012
An independent view Lawrence Cheung, 19 February 2010

DECONSTRUCTION OF FUNDAMENTAL ISSUES:

For the purposes of this paper, I assume that key elements of the Government’s
vision for democracy comprises the 1) ultimate goal of universal suffrage in the CE
elections in 2017, 2) choice of CE subject to nomination by a broadly representative
nominating committee (“NOMCOM”), and 3) full direct elections by universal suffrage
for a unicameral legislature in 2020 – that is to say, the ultimate elimination of FCs
and other undemocratic elements.
It is further assumed that the current mechanism for geographical constituencies’
elections remains unchanged, although I would not exclude that as a possibility. I
would assume adoption of the proposal would increase the number of seats in each
geographical constituency by one.
As there is no roadmap, per my definition above, I will comment on elements I regard
as ‘fundamental’.
1. “gradual and orderly progress”
Could any change at this intermediate stage, however small, constitute “gradual and
orderly progress”? The answer lies perhaps in the likely number of stages of electoral
change before 2017/2020. The proposed changes fall considerably short of a ‘half-
way house’ to universal suffrage. While the proposals are undoubtedly “too gradual”,
given there are to be only two elections scheduled or likely to be scheduled between
today and those dates, it fails the “and orderly” test miserably. I would argue that the
change needs to be significant for it to be gradual and orderly. If the current
proposals are adopted, a great proportion of the work towards the desired level of
democratic participation will be back-end-loaded as a result of the modesty of the
proposals.
The consultation document proposes an increase in the number of LegCo seats by
10 arguing for a benchmarked ‘per capita’ representation; 5 seats will be considered
‘Functional’ and be elected indirectly through elected District Council representatives.
The increase in 5 FC seats, albeit indirectly elected, fails to meet the objective of
“gradual and orderly progress” in any meaningful way.
Not only does this change create a potential conflict of interest for elected
representatives at the District Council level, this indirect method of electing LegCo
members must be considered transitory (one-off) if we are to arrive ultimately at a
legislature constituted by one man, one vote in direct election. Creating five
indirectly elected FC seats is akin to travelling at high speed down a cul de sac.
Indirectly-elected seats are incompatible with the stated aim, and will be a diversion
from the ultimate goal, at best. At worst, it is a situation which would need to be
undone come 2020. In the interim, it will cause disruption as voters get to grips with
what it means for them and for the District Councillors. For this reason, the
disadvantages of this change outweigh the benefits.

2. Broad representativeness
NOMCOM
The proposal includes the question of whether the NOMCOM members should be
returned by Directors or corporate votes. I would suggest that this is totally the
wrong question. One of the aims of the reform proposal is to achieve greater
democracy, and it is the explicitly stated desire for the nominating committee of the
Chief Executive to be “broadly representative.”
However, the committee as currently constituted is totally devoid of
representativeness. The body is made up of members of sectors whose general

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Consultation Document on the Methods for Selecting the Chief Executive and for Forming the Legislative Council in 2012
An independent view Lawrence Cheung, 19 February 2010

representativeness cannot be demonstrated, at worst. At best, procedures which

operate among different sectors are heterogeneous. Seats are under the control of
capital-owning or professional classes – an elite. Votes based on corporations can be
stacked by creating companies; votes based on Directors can be stacked by creating
directorships. Changing from corporate to directors’ votes is mere window-dressing,
and will not change representativeness one iota.
Legislative Council
I have not a great deal to say about the representation for the Geographical
constituencies. However, the issue of FCs needs to be addressed urgently if reform
is to be serious, and seen to be serious. In most cases, appointments involve
exclusively corporate votes; legislators are returned in the same elitist way as
NOMCOM. Non-professionals, non-capital-owning and non-unionist individuals have
little or no representation, thus representation at the grass roots level is sub-optimal.

3. Question of number of representatives

On the general point of number of representatives, both for the CE nominating
committee (“NOMCOM “) and for LegCo, representation is not necessarily improved
by increasing numbers of representatives. What is more important is how they are
selected/elected. I am not resolutely opposed to increasing the size of the legislature
or of NOMCOM.
NOMCOM
I feel that changes need to address fundamental issues of accountability – thus it
must be ensured elected are done so in a broadly representative manner. Increasing
the number of those NOMCOM or LegCo members may increase representing
marginal views, but that remains a big “if”. Much would depend on the execution.
Given that the NSCSC envisages a nomination committee going forwards, the best
solution would be to broaden the electoral base which underpins them. To comply
with the principle of gradual and orderly progress, procedures need to be adopted
now to widen eligibility criteria for both nomination and the electorate so as to include
all segments of society, and people of all income groups. As argued above,
NOMCOM is undemocratic, yet there is substantial scope for amending its
composition.
Recommendation:
In addition to other broadening measures, I would therefore propose that at least
20% of seats would be distributed to the political parties in direct proportion of their
votes received in the last legislative elections, subject to a threshold of 5% in the
polls. Alternatively, they would be allocated in direct ratio to the number of LegCo
seats secured in direct elections.
Legislative Council
The consultation paper cites Hong Kong’s level of representation per capita as being
below international norms. Taking the British regional assemblies as a benchmark,
we can see the Welsh Assembly has one MP per 37 thousand people (1:37,200); the
Scottish Assembly has a ratio of 1:16,500 and the Northern Irish Assembly has a
ratio of 1:10,200. On the other hand, the London Assembly, without legislative
powers, has a ratio of 1:200,000. Hong Kong’s registered voter base of some 3.37
million – a representation ratio of 1:112,000 – does appear to indicate quite severe
under-representation. If Functional Constituencies can be given a popular mandate,
the representation ratio would halve immediately. However, under-representation in
itself is a side issue, as there are fundamental structural issues.

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A number of legislators in FCs are returned unopposed. To comply with the principle
of gradual and orderly progress, there is the urgent need to widen eligibility criteria
for nomination of these members to ensure there is healthy competition for the seats.
The representativeness of their electorate ought also to be broadened in line with
declared aims, to include all segments of society, and people of all income groups.
In order to increase democratic accountability to the general population, the FCs
would need to be somehow “morphed” into geographical constituencies between now
and 2020; alternatively, these could become a ‘transversal’ group of legislators in the
interim, but subject to a popular mandate.
Recommendation:
As a suggestion, each voter would be given, in addition to their GC vote, a second
vote in the FCs. I would propose to give each Hong Kong citizen a vote in an FC of
their choice would be a good way forward – they would be encouraged to register to
vote in the FC in which their (or their spouse’s) employment is based, but would be
free to register in another sector if they desired. However, reform of this nature will
still require cooperation of the unelected legislature. (please refer to “inertia” of
vested interests in LegCo section below)
4.Screening by NOMCOM
Today, NOMCOM operates as de facto acceptability test of the candidate to ‘the
establishment’. The threshold to gain nomination (of one-eighth) is undemocratic, I
would even say ‘anti-democratic’ as it sets an artificially high bar which gives certain
vested interests a veto of candidates otherwise potentially worthy to certain sections
of the population.
The consultation paper implies that this committee will operate only once, in the 2012
CE elections. However, the NPCSC envisages a nominating committee under the
proviso of Article 45 of the Basic Law, thus it needs to be retained. So being, its
composition needs to be made “broadly representative”.
Recommendation:
Note that there is no committee for nomination to LegCo, I believe none should exist
for the CE. I hope to see NOMCOM abolished ultimately, when the candidates to CE
should be nominated in no more restrictive a manner as candidates to Legco. In the
meantime, not only should eligibility to membership be broadened per above, the
nomination threshold should be significantly lowered to ensure a widest pool of talent
is at the disposition of the voting public.
In many democratic societies, representation at legislative level is generally accorded
when public support for a political party reaches between two and ten percent. On
the same basis, assuming that NOMCOM is made ‘broadly representative’, the
nomination endorsement by between 16 and 80 members will be sufficient to rule out
frivolous candidatures – I think 40 members (or 5% of the electorate) will be a good
balance.

5.Political affiliation of the Chief Executive

I am opposed to limiting political membership of the Chief Executive.
An unelected CE should act open and impartially, like a civil servant; it is highly
problematical for him/her to act in an overtly partisan manner without popular
endorsement or mandate. Party memberships are superficial and the lack of an overt
affiliation does not mean the absence of partisan bias.

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I believe that the people will prefer a CE whose colours are “nailed to the mast”, so to
speak. If the CE is elected democratically (i.e. has a mandate for his/her stated
platform), his/her accountability will transcend his/her party allegiances.

6.“inertia” of vested interests in LegCo

One important issue which has escaped attention in the consultation paper is the in-
built veto of the FCs. Their voting power would need to be dealt with in the transition.
The functional constituencies represent powerful interest groups but have little public
support. Together as a block, they act as a de facto second chamber, with powers of
veto over any reform legislation through the current voting arrangement. In LegCo,
legislation only succeeds if it receives a double majority of functional and
geographical constituency representatives. What is more, this vote on a constitutional
matter needs a supermajority in LegCo. This mechanism, not envisaged by the
NPCSC to be changed in any way, is likely to become a significant impediment to
reform if our leaders do not manifest strong and resolute leadership.
Under the current limited proposals, hailed as being “a step forward” by the
Government and the DAB, the vested interests will retain their power going forwards,
with no transitory mechanism for its eventual surrender. In reality, this issue needs to
be addressed sooner or later. We have to recognise that, philosophically, this group
will cede power voluntarily as proverbial turkeys will welcome Christmas.
Representatives of FCs will undoubtedly exercise their veto en bloc when the time
comes unless there is a strong champion for the cause. The process will become
stalled at “stage 3” of the proposals if we do not come up with concrete solutions.
In order for the objective of universal suffrage to be achieved by 2020, bold and
visionary leadership is much needed from our Chief Executive. A clear signal of this
government’s intent is the only way I see progress being made. Failure would mean
the rather unsatisfactory default option (i.e. the current arrangement) will prevail
indefinitely going forwards.
In order to avoid a similar popular revolt that Britain was faced with in the 17th
century, Hong Kong needs to "take effectual Measures for correcting diverse Abuses
that have long prevailed in the Choice of Members to serve in the Legislative Council
of Hong Kong." (after ‘Reform Act 1832’)

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CONCLUSION
The extent of reforms suggested under current reform proposals will perpetuate
popular speculation that the Government has neither the will nor the determination to
tackle the powerful vested interests in Hong Kong, and demonstrate that the
government is failing to act for its people.
The government under Donald Tsang, and the next CE, needs to strengthen the
vision, courage, leadership and commitment, and take bold steps and not half-
measures towards genuine democracy. There is the serious risk that, through not
addressing fundamental issues about our democracy and our society’s needs and
aspirations, the government declared objective of achieving universal suffrage by
2020 will be but a pipedream.

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Consultation Document on the Methods for Selecting the Chief Executive and for Forming the Legislative Council in 2012
An independent view Lawrence Cheung, 19 February 2010

SUMMARY:
In direct response to the questions raised, the ideas expressed in this paper are
reclassified into the rubrics used in the consultation paper. These are given for
indicative purposes only and not necessarily as simple endorsement or negation of
the reform proposals :
Method for selecting the CE in 2012

1. The number of members of the Election Committee:

(a) Do you agree that the number of members of the Election Committee should be increased
to not more than 1200?
I am largely indifferent to the numbers of members of NOMCOM, although I
believe democracy could be meaningfully strengthened through a change in
the electoral base, as well as allocating 20 percent of seats to political parties
in proportion to their public support.

2. The composition of the Election Committee:

(a) Should the proportion of members of the four sectors remain even or not?
No view

(b) Do you agree that most of the new seats in the fourth sector should be allocated to District
Council members?
They should be allocated directly to political parties in proportion to their
public support in LegCo elections. I would not be opposed to ELECTED
District Council members being included within this tranche.

(c) What should be the extent of increase in the number of seats to be allocated to District
Council members? Do you agree that only elected District Council members should take part
in the election?
20% or more of seats may be allocated directly to political parties in
proportion to their public support in LegCo elections. I would not be opposed
to seats being created to give ELECTED District Council members a say.

3. The electorate base of the Election Committee:

(a) Do you agree that the method of replacing “corporate votes” with “director’s / executive’s /
association’s / individual votes” should not be adopted?
Votes should be strictly individual, coming principally from those employed
within the relevant sector.

(b) Do you agree that the proportion of District Council members in the Election Committee
should be increased to broaden the electorate base?
Per 2 (b) above

4. The arrangements for nominating candidates for the office of the CE:
(a) Do you agree that the nomination threshold should be maintained at the existing level, i.e.
at the ratio of one-eighth of the total membership of the Election Committee?
No, the threshold should lie between 2 and 10 percent of the electorate. I
would propose 5 percent

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Consultation Document on the Methods for Selecting the Chief Executive and for Forming the Legislative Council in 2012
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(b) Do you agree that the arrangement of not setting an upper limit on the number of
subscribers should be maintained?
The upper limit should be set at a low level, say 10%, so that there should be
no ‘hogging’ of NOMCOM votes to squeeze out other potential candidates.

5. Political affiliation of the CE:

(a) Do you agree that the requirement that the CE should not have any political affiliation
should be maintained_
No, you cannot legislate for the CE’s political beliefs.

Method for forming the LegCo in 2012

6. The number of seats in the LegCo :

(a) Do you agree that the number of seats should be increased from 60 to 70?
No, there are better ways of achieving broader representation. Transforming
functional constituencies into directly elected seats in LegCo will half the
representation ratio in one move.

7. The electorate base of the FCs:

(a) Do you agree that the method of replacing “corporate votes” with “director’s / executive’s /
association’s / individual votes” should not be adopted?
Votes should be strictly individual, coming principally from those employed
within the relevant FC sector.

(b) Do you agree that all the five new FC seats and the existing District Council seat should
be returned through election by elected District Council members from among themselves to
broaden the electorate base of the FCs?
No, there are better ways of achieving broader representation without the
disruption this would cause.

8. Nationality requirement of LegCo Members :

(a) Do you agree that the existing arrangement of allowing Hong Kong permanent residents
who are not of Chinese nationality or who have the right of abode in foreign countries to stand
in the LegCo elections for 12 seats should remain unchanged?
Yes, under the principle of ‘no taxation without representation’, LegCo
membership and eligibility to vote for LegCo or the CE should be open to all
permanent residents.

FINAL COMMENT
Whilst this consultation sets out with clearly defined objectives, the paper only treats
a number of important issues in a relatively superficial manner. The discussion points
skirt around fundamental issues, with the very limited number of options proposed
indicates a lack of imagination or ability to think ‘outside the box’. The
recommendations appear weak and half-hearted.

The proposals avoid the difficult issue of the mechanism for abolition of functional
constituencies, principally how those unelected representatives can be persuaded to
renounce their votes in the legislature. To carry through the reforms which the Hong
Kong people need and deserve, greater leadership and vision are required.

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