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WEEK 11 - Right to Political Participation
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11. RIGHT TO POLITICAL PARTICIPATION AND POLITICAL REFORM1. RIGHT TO POLITICAL PARTICIPATION
1A. Basic Law Provisions
Chief Executive Provisions
25 All Hong Kong residents shall be equal before the law.
26 Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right
to stand for election in accordance with law.
45 The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through
consultations held locally and be appointed by the Central People’s Government.
The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong
Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The
ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly
representative nominating committee in accordance with democratic procedures.
The specific method for selecting the Chief Executive is prescribed in Annex I “Method for the Selection of the
Chief Executive of the Hong Kong Special Administrative Region”.
LegCo Provisions
68 The Legislative Council of the Hong Kong Special Administrative Region shall be constituted by election.
The method for forming the Legislative Council shall be specified in the light of the actual situation in the Hong
Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The
ultimate aim is the election of all the members of the Legislative Council by universal suffrage.
The specific method for forming the Legislative Council and its procedures for voting on bills and motions are
prescribed in Annex II: "Method for the Formation of the Legislative Council of the Hong Kong Special
Administrative Region and Its Voting Procedures".
Types of Constituencies
Functional Members of professional/other sectoral groups that are eligible to elect representatives to LegCo
Geographical Residents of geographically defined groups who elect their representatives to the LegCo
Issues with Functional Constituencies
v Inequality between functional and geographic constituencies ANND between different functional constituencies
v Different sizes; Corporate voting; Not transparent.
v Conglomerate – multiple constituencies or multiple votes in same constituency
v Membership – umbrella organizations/sometimes restricted to key office-holders rather than members as a whole
v Since 2012 – 5 new seats elected from district councils representing more than 3 million voters, but they have
proportionately less influence than voters in older, smaller functional constituencies.
Election committee that elects CE:
v Basic design – BL, but details Chief Executive v Committee elected through system similar to f.c.
Election Ordinance; based on f.c. system v Limits number and type of candidates that can
Ø F.C. constituencies rearranged into 38 emerge
subsectors, with a specified no. of committee v Voter turnout for elections – 2000- 19%; 2006 – 27%
members for each v Closed system – how do you apply to get in?
Ø Elections to fill seats in each sector – corporate v Contested seats? 2006 – 36% EC seats uncontested
and individual voters.
v Design of sub-sectors – e.g. agriculture has 60 seats, v 1200 members in 4 sectors, 38 sub-sectors
more than finance + insurance whereas hotel
subsector – 101 voters
1B. ICCPR/Bill of Rights Ordinance
ICCPR
25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2*
and without unreasonable restrictions:
a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and
shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
Reservation to Article 25 of ICCPR – The Government of the UK reserves the right not apply sub-paragraph (b) of article
25 in so far as it may require the establishment of an elected Executive or Legislative Council in Hong Kong
BORO
A21 Every permanent resident shall have the right and the opportunity, without any of the distinctions mentioned
s.8 in article 1(1) and without unreasonable restrictions-
a) to take part in the conduct of public affairs, directly or through freely chosen representatives;
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, b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and
shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
S13 Article 21 does not require the establishment of an elected Executive or Legislative Council in Hong Kong.
UN Human Rights Committee:
“...once an elected Legislative Council is established, its election must conform to article 25 of the Covenant...the
Committee still considers that the electoral system in Hong Kong does not meet the requirements of article 25, as well
as articles 2, paragraph 1 and 26 of the Covenant. Furthermore, the Committee is concerned that the implementation
of the procedure for interpretation of the Basic Law, such as on electoral and public affairs issues, does not include
adequate arrangements to ensure that such interpretations are in compliance with the Covenant (articles 2, 25, 26).
All necessary measures should be taken whereby the Legislative Council is elected by universal and equal suffrage. It
should be ensured that all interpretations of the Basic Law, including on electoral and public affairs issues, are in
compliance with the Covenant.”
Different views on the current effect of the UK’s reservation to Article 25 of the ICCPR:
v HKSAR government: reservation to article 25 of the ICCPR is valid, so Article 25 is not constitutionally relevant to
the issue of political reform
v Pan-democrats rely on the view of UN Human Rights Committee in 1995: the UK’s reservation does not require
establishment of an elected legislature. But once an elected legislature is established, the legislature must comply
with Article 25. Hence there is a constitutional obligation to introduce universal and equal suffrage under Article
25 of the ICCPR which takes effect via Article 39 of the Basic Law.
v PRC is not a party to the ICCPR
Ø Signed in 1998, but hasn’t ratified (brought into force)
Ø If/when it ratifies, can enter new reservations that may further limit suffrage in the HKSAR
2. POLITICAL REFORM EXERCISES FROM 2003-2017
v LegCo and CE
v First constitutional reform exercise of 2004-2005 – To amend electoral methods for the 2007 CE election and the
2008 LegCo election
v Second constitutional reform exercise of 2009-2010 – To amend electoral methods for the CE and LegCo elections
in 2012
v Third constitutional reform exercise of 2013-2015 – to amend electoral methods for the CE in elections in 2017
B1. First Constitutional Reform Exercise
v 1 July 2003: massive public protest
v 7 January 2004: Then-CE, Tung Chee-Hwa, establishes the Constitutional Development Task Force
Ø PRC statement – must discuss with Central authorities
Ø Task force publishes 5 reports
v 6 April 2004: NPCSC issues its interpretation of Article 7 oof Annex I and Article III of Annex II to the Basic Law,
stating that amendments require the following steps:
1. CE shall make a report to NPCSC as to whether there needs to be an amendment
2. NPCSC shall, in accordance with Article 45 and 68, make a determination in light of actual situation
in HKSAR and in accordance with the principle of gradual and orderly progress
3. Two-thirds of LegCo members must endorse an amendment bill introduced by the Government
4. Chief Executive must consent
5. Amendment must be reported to the NPCSC for approval or for the record
v Political Reform procedure after SC interpretation:
1. Government consults the public
2. CE reports to the NPCSC, summarises consultation results, expresses a view
3. NPCSC makes a decision
a. Is reforme needed? (If yes, then…)
b. Features of the reform
4. Government presents Bill for amending selection/election method of LegCo
5. Amendments need a 2/3 “supermajority”
v CE Tung submits report to NPCSC
v Second report of Task Force says, among other things:
(iii) no proposed amendments shall affect the substantive power of appointment of the Chief Executive by
the Central Authorities;
(iv) any proposed amendments must aim at consolidating the executive-led system headed by the Chief
Executive and must not deviate from this principle of design;
“Hong Kong people ruling Hong Kong” refers to patriots forming the main body of people responsible for
managing Hong Kong affairs. Hong Kong’s “high degree of autonomy” is exercised under authorisation by the
Chloe T 48
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