Hong Kong Human Rights Monitor

Reviving the Appointment System is an Attack on Democracy

After the regression in democracy caused by various Government measures in the First Legislative Council Election after the handover, such as reducing the electorate in functional constituencies by 88%, and reviving the corporate voting system, the decision to abolish the elected Municipal Councils, namely the Urban Council and the Regional Council was made, to have their powers taken back by an attempt to re-introduce the appointment system and to provide for the appointment system a statutory basis by the inclusion of such provisions in the District Councils Bill. In light of all these attacks, it seems appropriate to accuse the Chief Executive Tung Chee-hwa and his SAR Government of being enemies of democracy.

The most recent attack has been targeted at the District Boards (to be re-named District Councils in 2000). These local elected assemblies are responsible for minor environmental improvement works, provision of cultural and entertainment activities and advising the Government on local and community issues including public policies. They therefore have very limited powers. But the Government still wants to weaken such elected assemblies.

The appointment system for District Boards was abolished in Hong Kong in 1994 by the colonical government after years of successive reduction in the number of appointed members to the District Boards. Human Rights Monitor considers the appointment system an affront to democracy, and strongly opposes this decision as it violates the ICCPR as well as the Basic Law.

Article 25 of the ICCPR provides,

E"Every citizen shall have the right and the opportunity, without any of the distinctions mention 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."

Article 25 lies at the core of democratic government based on the consent of the people. However, the appointment system results in an unreasonable and unnecessary restriction of the rights of the public to participate in public life. 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 directly 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 Councils election. With the will of the voters distorted and their representation diluted, the rights of the voters to participate indirectly in public life through elected representatives of their own choice 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 most valuable function of an election is the power of voters to remove an unsatisfactory incumbent by voting him out peacefully. With the revival of an appointment system, this power is substantially usurped by the Government.

From an institutional perspective, the Executive's power to appoint District Council Members is 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 responsible for the selection of the Chief Executive. Thus, giving the Chief Executive a power to appoint Members to the District Councils is in fact giving him the power to influence his own re-selection.

The SAR Government has a bad record of appointing pro-Beijing politicians or persons discarded by voters to distort the representation of elected representatives. According to a newspaper report, 96 new members have been appointed to the Provisional District Boards at the Handover to join those who had mandate from the people, through winning their election in 1994. The new appointees* political outlook is largely pro-Beijing. Among them 53 were, at that time, District Advisors who have been commended for being "patriotic and loving Hong Kong" by the Chinese authorities. 15 were members of the DAB and 7 of them were members of the Progressive Alliance. Some of these members either have not attempted to seek their mandates through participating in the 1994 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 were from the democratic lobby.

One of the ABCs of political studies 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 is expected to 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 HKSAR Government, the Government may be desperate to generate apparent support of its policies 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. Such a measure will only further deepen the confidence and legitimacy crisis.

After the abolition of the appointment system for District Boards in 1994, the Boards have been functioning well. There is no need to revive the appointment system and reverse the process of democratization 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 Chief Executive, his SAR Government, the District Councils, the Legislative Council and the whole of Hong Kong.

Ex offico Members should not be maintained because of the unfairness inherent in the present system, especially in the election of Villages Representatives who form 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.

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. There is no reason to have affirmative measures in favour of such a population. Moreover, they do not suffer from special socio-economic disadvantages (except for certain women) which justify reserving seats in the District Councils for them. Like everyone else, they are already represented in the election of elected members.

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 measure for protecting rural interests according to international human rights jurisprudence is the tolerance of a greater discrepancy from the electoral quota (17,000 persons for a District Council 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 the electorate in a sparsely populated area.

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 expert committees. Alternatively, the Government can always appoint advisors or non-voting members to District Councils giving them the right to voice their opinions without diluting the representation of the elected Councils.

Human Rights Monitor is also 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. For instance, 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.

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.

1999 (c) Hong Kong Human Rights Monitor