THE GOVERNMENT'S ATTACK ON DEMOCRACY
BY REVIVING THE APPOINTMENT SYSTEM.
International human rights standards
- The rights to run for public office and to elect one's representative are enshrined in the International Covenant on Civil and Political Rights (ICCPR) and other international human rights instruments. A Bill which has impacts on rights in respect of elections necessarily have human rights implications and must comply with Article 39 of the Basic Law. The Article requires that all restrictions of rights should not be contrary to the ICCPR as applied to Hong Kong.
- Article 25 of the ICCPR provides,
"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;
(c) To have access, on general terms of equality, to public service in his country."
- Public affairs are not restricted to those at the national or regional levels and "[t]he conduct of public affairs
is a broad concept
It covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels
" (Para. 5 in General Comment 25 (57) of the International Covenant on Civil and Political Rights issued by the United Nations Human Rights Committee) although "the representatives exercise only those powers which are allocated to them in accordance with constitutional provisions." (General Comment 25 (57), Para 7).
- The General Comment explains that "Citizens may participate directly by taking part in popular assemblies which have the power to make decisions about local issues or about the affairs of a particular community and in bodies established to represent citizens in consultation with government. Where a mode of direct participation by citizens is established, no distinction should be made between citizens as regards their participation on the grounds mentioned in article 2, paragraph 1, and no unreasonable restrictions should be imposed." (General Comment 25 (57), Para. 6).
- In any case, the ICCPR lays down only the minimum standards for various states and territories.
Revival of the appointment system -- A violation to the right to public life
- The appointment system in District Boards was abolished in Hong Kong in 1994 after years of successive reduction in the number of appointed members to the District Boards. The Government seeks to re-introduce the appointment system and provides for the appointment system a statutory basis by the inclusion of provisions in the District Council Bill to this effect.
- The appointment system is an affront to democracy and has ignored the fact that Article 25 lies at the core of democratic government based on the consent of the people.
- Human Rights Monitor considers the revival of the appointment system an unreasonable and unnecessary restriction of the rights of the public to participate in public life directly or indirectly.
- The re-introduction of appointed members into an elected assembly responsible for certain public affairs is a dilution of the power and influence of the elected members in the deliberation and voting of such a body. It therefore constitutes a direct attack on the rights of such elected representatives to participate in public life and undermines their ability to influence the decisions as representatives of the voters.
- The re-introduction is also a distortion of the will of the voters expressed in the District Council election. With the will of the voters distorted and their representation diluted, the rights of the voters to participate in public life through elected representatives are also violated. This is especially true when the Government's expressed intention is to use the appointment system to establish a "more balanced" assembly.
- The electorate has a greater freedom to decide on who is going to represent them by casting their votes in an election than leaving this to the Chief Executive, the selection of whom they have no right to participate in.
- The most valuable function of an election is the power of voters to remove the worst candidates by voting him out peacefully. With the revival of an appointment system, this power is partly usurped by the Government.
- The revival of the appointment system thus represents an attack on the limited democracy Hong Kong people have realized.
- In case of doubt, the Government should consult the technical assistance services available from the Office of the UN High Commissioner for Human Rights.
The Executive's power to appoint District Council Members is a bad constitutional design
- The Executive's power to appoint District Council Members is not simply a violation of the rights of the people to participate in public life, it is also a bad constitutional design, giving the Executive more power to manipulate the political system at the local and central levels in Hong Kong:
- Until the Basic Law is amended, Members of District Councils will probably have a special role in the selection of some Members to the Election Committee or Nominating Committee responsible for the selection of the Chief Executive. Give the Chief Executive a power to appoint Members to the District Council is in fact to give the Executive power to influence his own re-selection.
- To have the Executive to influence who should scrutinize the government at the district level by an appointment system would weaken the District Council's role in scrutinizing government policies and actions.
Political control by appointing members to an elected body
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- The SAR Government has a bad record of appointing pro-Beijing politicians or persons discarded by voters to distort the representation of elected representatives.
- The fact that a person is pro-Beijing falls within the domain of freedom of political belief. But upsetting the representation of elected assemblies by replacing such bodies with new ones, by appointing a members to distort the original political representation, is a violation of the rights to participate in public life.
- According to a newspaper report, 96 new members have been appointed to the Provisional District Boards at the Handover, and their political outlook is largely pro-Beijing. Among them 53 were, at that time, District Advisors. 15 were members of the DAB and 7 of them were members to the Progressive Alliance. Some of these members either have not attempted to seek their mandates through participating in the 1994 District Board elections or have lost their elections. 41 of them had been appointed members at least before 1994 and 14 had lost in the 1994 District Board elections. None of them was from the democratic lobby.
- It did not seem that any minorities, whether racial, ethnic, or disabled, have been appointed except perhaps political minorities not favoured by majority votes. Such appointments did not even support the Government's claim that appointments helped to return minorities to District Councils.
- One of the ABCs of political study is that the source of power dictates in most cases to whom a politician is answerable and accountable. Appointees by the government tend to speak in favour of the government. The appointment system will normally result in less critical District Councils, making the Government less responsive to public opinion especially on politically sensitive issues.
- At a time of confidence and legitimacy crisis in Government, the Government may be desperate to generate apparent support of its policy by tampering with the political system, including making the District Councils more manageable by the re-introduction of appointed members and thereby creating more apparent support in its policy consultation.
- Human Rights Monitor warns the Government here that important crises the Government faces are firstly the lack of responsiveness and sensitivity towards pubic demands and opinions, and secondly the lack of legitimacy due to its lack of popular mandate. Making the District Councils more manageable by revival of the appointment system will further undermine the legitimacy of the Government and its ability to adapt itself to the rising expectation of the community.
Professionals in District Councils
- The Government claims that it is necessary to re-introduce the appointment system to improve the quality of deliberation in District Councils by making available to such Councils professionals or those familiar with district affairs. With due respect, there are already sufficient professionals and people who know district affairs returned by elections.
- If the Government so treasures the expertise it claims to be lacking at the District councils, it can appoint members to their District Management Committee or other experts committees. Alternatively, the Government can always appoint advisors or non-voting members to District Councils giving them the right to voice their opinion without diluting the representation of the elected Councils.
Bad image to the public and to the international community
- After the abolition of the appointment system in District Boards in 1994, the Boards have been functioning well. There is no need to revive the appointment system and reverse the process of democractization at the expense of the right of the public to participate in public life.
- The re-introduction of an appointment system to District Councils on the first day of the new millenium against the global tide of democracy will unnecessarily tarnish the image of the SAR Government, the District Councils, the Legislative Council and the whole Hong Kong.
Ex officio Members should be abolished
- Ex offico Members should not be maintained because of various unfairness inherent in the present system, especially in the election of Villages Representatives who forms the Rural Committees whose chairmen are ex offico members. Besides the well known issue of discrimination against women in many of the villages, there are problems such as having property ownership as one of the criteria of eligibility in certain village elections. "It is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements." (Para. 11, General Comment)
- Human Rights Monitor finds it dubious to suggest that the New Territories indigenous population, which is identified by descent along the male line from villagers of an established village in 1898, may qualify as a racial or ethnic group within the meaning of the United Nations Convention on the Elimination of All Forms of Racial Discrimination. They do not suffer from special socio-economic disadvantages (except for certain women) which justify reserving seats in the District Councils for them as positive measures. Like everyone else, they are already represented in the election of elected members. Even if the representation of Rural Committees are extended to cover all non-indigenous residents living in their areas, it is still unfair to those voters who not covered by such Rural Committee areas.
- The reservation of seats for indigenous population or rural people in the form of ex officio members is in fact a breach of Article 25 of the ICCPR, in particular the right for every one "to have access, on general terms of equality, to public service". An acceptable exception according to international human rights jurisprudence is the tolerance of a greater discrepancy from the electoral quota (17,000 in the current Bill) which needs to be justified on the ground of easing the special difficulties of their elected member to reach and serve them in a sparsely populated area.
Article 39 of the Basic Law
- Article 39 of the Basic Law provides, The provisions of the ICCPR as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong SAR... It also provides that the rights and freedoms enjoyed by Hong Kong residents "shall not be restricted unless as prescribed by law." Such restrictions must not contravene the provisions of the covenants and conventions as applied to Hong Kong, that is, as modified by the reservations made for Hong Kong by the United Kingdom on accession.
- Measures like the inclusion of appointed or ex officio members which are inconsistent with the ICCPR are contrary to the Basic Law and thereby unlawful and void.
- Human Rights Monitor urges the Chief Executive to withdraw the proposals to have appointed and ex officio members appointed to the District Councils. It also urges the Legislative Council to vote against any such proposals.
Powers and Discretion of the Chief Executive
- Human Rights Monitor is concerned that the Bill provides the Chief Executive with too much power and discretion. Measures should be introduced to narrow down his power and discretion. The determination of the proposed, if not also the final, boundaries of the District Councils should be left to the EAC rather than the Government. Otherwise there may be room for gerrymandering.
1999 (c) Hong Kong Human Rights Monitor