Maximizing democracy under constraints: considerations on reforming the methods for selecting the Chief Executive and forming the Legislative Council in 2012 through local legislation
- On 24 and 25 June 2010, the Legislative Council (LegCo) passed by two-thirds majorities motions sponsored by the HKSAR Government concerning amendments to the methods for the selection of the Chief Executive (CE) and the formation of LegCo in 2012.
- The approved amendments nonetheless did not contain details and it was agreed that specific arrangements under the two methods would be decided through local legislation at a later stage.
- We are of the view that the stage of local legislation represents one more opportunity for furthering democracy in Hong Kong. Local legislation means that it is the HKSAR Government and the Hong Kong people who will decide what specific changes and arrangements under the two methods should be made.
- In other words, it is entirely up to the HKSAR Government and the Hong Kong people to decide how much more democratic the two electoral systems will be in 2012 within the framework of the amendments passed in June.
- The following spells out our considerations in this regard.
Amendments endorsed by LegCo in June 2010
- Regarding the method for selecting the CE in 2012, the following amendments have been made to Annex I of the Basic Law:
- The number of members of the four sectors of the Election Committee will be increased from 200 to 300 each. (The total number of the Election Committee will be increased from 800 to 1,200)
- Nominations by members of the Election Committee required for being a CE candidate will be increased from 100 to 150.
- Regarding the methods for forming LegCo in 2012, the following amendments have been made to Annex II of the Basic Law:
- The number of members of LegCo returned by functional constituencies (FCs) will be increased from 30 to 35.
- The number of members of LegCo returned by geographical constituencies (GCs) through direct elections will be increased from 30 to 35.
- As can be seen, not much regarding the methods for selecting the CE and forming LegCo has been touched.
- Specific arrangements relating to the amendments remain to be decided.
- Most importantly, the absence of changes to the methods for selecting the CE and forming LegCo suggests there may be room for amending existing arrangements through local legislation to further democracy in 2012.
The scope of local legislation
- According to the Basic Law and the established practice, the following are to be prescribed by local legislation regarding the method for selecting the CE:
- the delimitation of various subsectors;
- the electorate bases of individual subsectors for returning Election Committee members;
- the voting methods in individual subsectors for returning Election Committee members.
- Regarding the method for forming LegCo, the following are to be prescribed by local legislation:
- the delimitation of geographical constituencies and the voting method for direct elections;
- the delimitation of functional sectors and their seat allocation;
- the electorate bases of individual functional constituencies;
- the voting methods in individual FC elections.
Democratizing the method for selecting the Chief Executive
- It has been decided that the number of members of each of the four sectors of the Election Committee will be increased from 200 to 300.
- Yet, decisions on how the newly-added memberships are to be allocated and how the members are to be returned remain to be made.
- It is obvious that simply adding in new subsectors or reallocating the quotas among different subsectors will not do much to democratize the CE election.
- Only when the electorate bases for returning Election Committee members are substantially expanded can the CE election be made more democratic.
- We therefore propose that, at the stage of local legislation, the focus should be on expanding the electorate bases for returning Election Committee members as widely as possible, ideally aiming at including all registered voters.
- Specific arrangements along this line can be as follows:
- Add new subsectors to the first two EC sectors while including retired persons, persons not in employment, homemakers, and students in the third sector so that the first three sectors of the Election Committee include all registered voters.
- Distribute the seats of the first three EC sectors in proportion to the working/relevant populations of the subsectors so as to equalize the voting weight of each subsector.
- Admittedly including all registered voters in the elections of Election Committee members may face a great number of hurdles in reality.
- Some other possibilities for expanding the electorate bases of Election Committee elections include: 1) replacing corporate voters with directors/office bearers of organizations; 2) extending voting rights to “qualified persons”, such as registered insurance agents in the Insurance subsector.
- Although these possibilities may in the end not be able to bring much democratization in the CE election, it signifies a significant albeit small step away from the present highly exclusive corporate-vote system for electing the CE.
- Regarding the fourth sector of the Election Committee, we propose that no newly-added seats be allocated to the Heung Yee Kuk, the National People’s Congress and the Chinese People’s Political Consultative Conference subsectors. Their political power should not be further entrenched.
- Excluding the seats for the Legislative Council subsector, the remaining newly-added seats of the fourth sector should all be allocated to the District Council subsectors.
Democratizing the method for forming the Legislative Council
- It has been decided that the number of LegCo members returned by functional constituencies (FCs) will be increased from 30 to 35.
- The HKSAR Government is proposing that the five new FC seats be given to District Councils (DCs) under the following conditions:
- Candidates must be elected District Council members.
- Candidates must be nominated by elected District Council members.
- Candidates will be elected by all registered voters, through one-person-one-vote, less those voters who currently have the right to vote in the traditional functional constituencies.
- The government’s proposal and the specific method for returning the five DCFC seats remain to be decided through local legislation.
- As the newly-added LegCo seats are FC seats, we can only accept that turning the seats into District Council seats is a better reform option.
- For returning the five DCFC seats, we propose the following specific arrangements:
- In order to democratize the elections of the five DCFC seats, the right to be elected should be as inclusive as possible. One possibility is to extend the right to former district councilors.
- As regards the voting method of the DCFC elections, the five seats should be returned by single-member first-past-the-post elections (FPTP) rather than territory-wide-multi-seat proportional representation elections.
- No reform proposal has been suggested for the election of traditional FCs.
- It has to be pointed out that the FC system is antithetical to democracy. Even if all voters can vote in all FC elections in such a way that they possess equal numbers of votes while the weight of all votes is proximate, the FC system inevitably limits the outlook of FC legislators and incentivizes them to focus on narrow sectoral interests only. A FC system is incapable of encompassing the possibly infinite range of plausible social, group and individual interests. Some types of social interests, some groups’ interests, and someone’s interests are bound to be excluded by the system.
- Few reform options exist for making the elections of traditional FCs more democratic.
- The reform direction of expanding voting rights in such elections will risk further legitimatizing the system.
- The idea of merging traditional FC sectors into sectors with wider scopes and greater sizes of electorates aiming at broadening the outlook of FC legislators and increasing the competitiveness of FC elections appears to be a promising reform direction at first sight, but is ultimately not workable on closer examination.
- Given all the aforementioned constraints and considerations, we propose the following for reforming traditional FC elections:
- Increase the electorates of FC elections marginally.
- Along this line, any change in the size of FC electorate is acceptable so long as it is workable.
- Allow FCs which were willing to give up their FC seats to merge voluntarily.
- The reform is not to increase the competitiveness of FC elections, nor is it to increase the electorate bases of FC elections.
- It is to express these views: that FCs do not necessarily require representatives from their own sectors to represent them; that representatives from other sectors can do the work of representation equally well; that concerns of a FC sector are common to other FC sectors.
- It could help ridicule FCs which refuse to give up their political privileges.
- Increase the electorates of FC elections marginally.
- The reform directions we propose can be effected through local legislation.
Winston Ng (吳君韻)
Hong Kong Democratic Foundation (香港民主促進會)
1 Oct 2010
 The rationale is that the FPTP system can facilitate the transition of the 2012 LegCo electoral system to a mixed-member electoral system returning the LegCo in 2020. Our view is that a mixed-member system whereby half of LegCo seats returned by closed-list multi-district-multi-seat PR and the other half by single-member constituencies using first-past-the-post (FPTP) is the preferred ultimate system for forming LegCo in 2020 and beyond. The mixed-member system can help maximize effective governance and legislative representativeness in Hong Kong’s essentially presidential political system. On further elaboration of this point, see the paper entitled “Electoral systems for 2012 and beyond: What are the options? How to choose?” by the Hong Kong Democratic Foundation.
 On this point, see ibid.