Unbridled executive usurpation and spurious accusations – Hong Kong Democratic Foundation’s response to the consultation paper on Arrangements for Filling Vacancies in the Legislative Council
The government’s rationale for changing Hong Kong’s long-existing by-election system
- According to the consultation paper, the prime rationale for changing the existing by-election system for filling casual vacancies in the Legislative Council is to prevent legislators from forcing a by-election through resignation and then seeking re-election in the by-election.
- In the consultation paper, while recognizing views that see it as a way of conveying political messages, the government accuses that legislators’ act of “forcing a by-election by resignation and seeking re-election”
- is “an abuse of process” and a “mischief”. (para. 1.04)
- will deprive the Legislative Council of the service of a member. (para. 1.05)
- will deprive constituents of the service of a legislator as their representative. (para. 1.05)
- will drain significant public resources. (para. 3.06)
- And that if this act becomes a common occurrence, it will
- adversely affect the operation of the Legislative Council. (para. 1.05)
- undermine the integrity of the legislature. (para. 1.05)
- lower public respect for the electoral process. (para. 1.05)
- Characterizing the act of “forcing a by-election by resignation and seeking re-election” in this way, the government considers that there is a loophole in the existing system for filling casual vacancies in the Legislative Council and that the loophole has to be plugged. (para. 4.06)
Unbridled executive usurpation
- In abstraction, the government argument takes the following logical form:
- A legislator conducts a certain act.
- The legislator in question and some of his/her constituents consider that such an act conveys political messages and serves certain political functions which are relevant to the duties of the legislator.
- The government however finds such an act condemnable.
- The government therefore considers that measures have to be taken to restrict it.
- Viewed in an abstract form, the government argument amounts to holding the legislature and its electorates accountable for their actions.
- The government appears to perceive the accountability arrow as flowing from the electorates and the legislature to the executive!
- If this is the case, we regard such an accountability direction as an unbridled exertion of executive domination over the legislature and its electorates.
- We take it as a categorical imperative that in democracies, the executive is accountable to the legislature while the legislature is in turn accountable to the electorates.
- Although Hong Kong is not a full democracy, Article 64 of the Basic Law provides that “The Government of the Hong Kong Special Administration Region must abide by the law and be accountable to the Legislative Council of the Region …”.
- Only the electorates can hold the legislature accountable for its actions.
- The executive do not have the right to usurp the electorates’ power to hold the legislature accountable for its actions.
- Whether a legislator’s act of “forcing a by-election by resignation and seeking re-election” is acceptable remains a judgement for the electorate to make, and a judgement for the electorate alone. The electorate will indicate their judgement at the ballot box.
- We strongly condemn the Hong Kong Government’s blatant attempt to usurp the electorates’ sovereignty over the legislature and its actions.
- Opinion surveys conducted in June and July 2011 show that
- 58% of the respondents strongly agreed/agreed that resigning legislators should be prohibited from standing in a by-election in the same term, while 29% strongly disagreed/disagreed.
- 56% of the respondents considered legislation necessary to prevent legislators from resigning for the purpose of instigating a referendum, while 34% disagreed with legislation.
- Earlier opinion surveys conducted between November 2009 and May 2010 show that around 50% to 58% of the respondents were against the “de-facto referendum”, while around 24% to 30% were supportive of it.
- The government may therefore appear to be in a position to argue that
- its accusations are made on behalf of the general public and are not an exertion of executive domination;
- its proposal to scrap by-elections or to prevent resigning legislators from standing in a by-election in the same term is a response to public demand.
- In this regard, we urge the government not to overlook the other side of the survey findings above:
- Significant percentages of the public did not agree that resigning legislators should be prohibited from standing in a by-election in the same term.
- Similarly, a significant portion of the public was supportive of the “de-facto referendum”.
- In other words, more than two million Hong Kong people (taking the average of 30% of respondents in the surveys above) actually approve of a legislator’s act of “resigning and seeking re-election” or at least do not find it problematic.
- We also urge the government to note that the act of “resigning and seeking re-election” is not misconduct or impeachable behavior.
- Indeed, it is but one way of expressing and conveying political messages.
- There is no lack of precedents in other democratic countries of putting this way of communicating political messages to good use.
- Like other forms of symbolic acts, such as refusing to salute the national flag or burning a draft card, even if there is a general dislike in society of the act of “resigning and seeking re-election”, a general societal dislike is far from constituting a sufficient reason for legally banning a certain act.
- Saluting the national flag is a form of utterance, refusing to salute the national flag is also a form of utterance; treating the two forms of utterance differently requires sufficient justifications.
- We are strongly of the view that people’s choice of forms of expression should be respected rather than suppressed or condemned as “an abuse of process” and a “mischief”.
- Far stronger reasons are mandatory when a particular form of expression is to be restricted.
- Regrettably, the government’s arguments mentioned in the consultation paper for supporting its accusations against, and its proposal to restrict, the act of “resigning and seeking re-election” either do not stand or remain to be proved.
- On the argument of “depriving the constituents of the service of a legislator as their representative”:
- Our counter argument is that supporters of the act of “resigning and seeking re-election” would in principle also support a resigning legislator with an intention to seek re-election. They will not take the resigning legislator as depriving them of a service, rather the converse, they will feel that the resigning legislator is exactly in the act of representing them, only through a particular form of expression.
- For non-supporters of the act of “resigning and seeking re-election”, if they feel that the resignation constitutes a serious disservice and that the resigning legislator is not discharging his/her duties properly and is disappointing, the resignation provides a good opportunity for these voters to elect a new representative.
- Thus, the government’s argument on this front does not really stand.
- On the argument of “depriving the Legislative Council of the service of a member”:
- Our reply is that legislators are in the legislature to service their constituents, not to service the entity called the Legislative Council. Legislators are first and foremost accountable to their constituents, not to their fellow legislators.
- If constituents do not find their legislators doing a disservice to them, no third party can trump the constituents’ judgement.
- On the argument of “draining significant public resources”:
- We have to point out that many forms of expression, such as rallies, demonstrations and National Day parades, involve significant social costs either in terms of inconvenience caused to the general public or police resources for maintaining public order.
- That different forms of expression may incur social resources is not a trumping justification for unduly restricting them.
- The same logic applies to the case of restricting the act of “resigning and seeking re-election”.
- On the argument of long term consequences resulting from the act of “resigning and seeking re-election”, such as “affecting the operation of the Legislative Council” and “undermining the integrity of the Legislature”:
- Our response is that this argument is highly unspecific and speculative.
- No evidence whatsoever has been provided by the government regarding how and in what ways the act of “resigning and seeking re-election” will actually affect the operation of the Legislative Council or will undermine its integrity.
- A convincing case remains to be made.
- On the argument of “depriving the constituents of the service of a legislator as their representative”:
- Last but not least, we would like to remind the government of the following:
- The surveys conducted in June and July 2011 referred to at the beginning of this section also show that the proportion of the general public supportive of keeping by-elections ranges from 58% to 66%.
- In any case, certain fundamental civil and political rights, which are the foundations of democracy and which act to protect individual freedom and choice against collective preferences, are beyond the reach of majority decision.
- In our present context, the rights to elect and be elected are two such fundamental civil and political rights.
- That scrapping by-elections or prohibiting resigning legislators from standing in a by-election in the same term will seriously deprive citizens’ rights to elect and be elected and may be unconstitutional has been pinpointed by the Hong Kong Bar Association.
- We will not repeat the Bar’s analyses here but the government should consider them seriously.
A possible legitimate justification for not holding by-elections
- Admittedly, the government also mentions in the consultation paper that apart from the “mischief” of legislators’ act of “resigning and seeking re-election”, there exists another shortcoming in the existing mechanism for filling casual vacancies in the Legislative Council which needs to be addressed.
- The shortcoming is:
- “holding a by-election would mean the “de facto” adoption of the first-past-the-post system, which is at odds with the list proportional representation system used in the general election.” (para. 3.06a)
- This can “result in an unfair shift in the political balance in the legislature” (para. 1.10)
- We agree that addressing this shortcoming may be a legitimate justification for not holding by-elections.
- We suspect that this may be a reason why many democracies with proportional representation systems do not hold by-elections.
- Regrettably, the present consultation is not conducted along this dimension. The public has not been given the opportunity to deliberate the merits and demerits of not holding by-elections in a proportional representation system.
- The focus of the consultation is solely on preventing future acts of legislators “resigning and seeking re-election”.
- The options in the consultation paper for changing the existing by-election system for filling casual vacancies in the Legislative Council are put forward with the only intention of preventing resigning legislators from standing in a by-election in the same term.
- Only option 4 offers any opportunity of resolving the problem of a “de facto” first-past-the-post system being embedded in a proportional representation system. In option 4, a mid-term vacancy will be filled by a candidate who has not been elected but who is from the same list as that of the vacating member.
- In options 1 and 3, a by-election will still be held when a vacancy arises mid-term in the Legislative Council.
- In option 2, although it is very unlikely that a by-election will be held, the issue of an unfair shift in the political balance in the legislature may remain. This is because if no candidate on the vacating legislator’s list is eligible or all the candidates on the list are not willing to fill the vacancy, the vacancy will be filled by using the precedence list.
- To conclude, in view of the considerations we explicated in the preceding paragraphs, we:
- do not consider there is any loophole to be filled;
- urge that the status quo be maintained;
- invite the government to withdraw the current consultation which we think has been “much ado about nothing” and
- suggest that if the government is seriously bothered by the embedment of a “first-past-the-post” system in a proportional representation system, it should launch a new consultation and direct public attention and discussions to this issue.
Hong Kong Democratic Foundation (香港民主促進會)
9 September 2011
 The survey was conducted in June 2011 by the University of Hong Kong’s Public Opinion Poll Programme and was commissioned by South China Morning Post. For the survey results, see <http://hkupop.hku.hk/chinese/report/scmp11legco/index.html> (accessed on 7 Sept 2011).
 The survey was conducted in July 2011 by the University of Hong Kong’s Public Opinion Poll Programme and was commissioned by Apple Daily. For the survey results, see <http://hkupop.hku.hk/chinese/report/appledaily11/index.html> (accessed on 7 Sept 2011).
 See footnote 1 on page 1 of the Consultation Paper for the sources of data.
 See Hong Kong Bar Association’s response to the Consultation Paper on Arrangements for Filling Vacancies in the Legislative Council released on 31 August 2011. Available at <http://www.hkba.org/whatsnew/press-release/20110831e.pdf> (accessed on 7 Sept 2011).