Hong Kong Human Rights Monitor

"Rotten Boroughs" in the Making Corporate Voting & Functional Constituencies

(This is a report released as a response to the Consultative Document on the Delineation of the Electorate for the New Functional Constituencies and the Election Committee for the First Legislative Council Election of the HKSAR.)

Hong Kong Human Rights Monitor is committed to the full observance of the rights set out in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. In particular we are committed to respect for Article 25 of the International Covenant on Civil and Political Rights, which provides that "every citizen shall have the right to vote and be elected at genuine periodic elections which shall be by universal and equal suffrage" It follows that we believe that the Hong Kong Legislative Council should not contain members elected by functional constituencies or members elected by election committees, as such electoral arrangements give undue influence to certain groups of people at the expense of others. We urge that Hong Kong proceed as fast as practicable to a fully directly elected Legislative Council.

Article 68 of the Basic Law which is now Hong Kong's mini-constitution provides that the ultimate aim is the election of all the members of the Legislative Council by universal suffrage. It states that the method for forming the Legislative Council shall be specified in accordance with the principle of gradual and orderly progress. We strongly believe that Hong Kong society is sufficiently mature, orderly and responsible to proceed to fully democratic elections in 1998 , and that the Basic Law should be amended to permit this, rather than postponing fully direct elections until sometime after 2007 as envisaged in Annex 2 to the Basic Law. Opinion surveys have repeatedly shown that this is what most Hong Kong people want.

If the Government will not proceed with these reforms it must at least comply with the existing provisions of the Basic Law. Compliance with the Basic Law necessitates, at the very least, the maintenance, in the seats with limited franchises, of franchises as wide as they were in the previous election and preferably some progress in widening those franchises. Any narrowing of the franchises would not be progress but regress, and so would be in breach of Article 68.

The Consultative Document refers (paragraph 3) to having "followed the traditional concept and criteria for the delineation of functional constituency electorate". This appears to be a reference to the manner in which functional constituency electorates were delineated before the 1994 reforms which abolished corporate voting.

The intention to revert to this so-called traditional concept is deeply objectionable on grounds of law, public policy and fairness.

Firstly it takes no account of the Basic Law, which was not part of Hong Kong law when the "traditional concept" was in existence. The gradual and orderly progress towards universal suffrage required by the Basic Law in fact reflects the reality of the progress that took place from the first election to the Legislative Council in 1985. In 1988 the proportion of elected members was increased. In 1991 direct elections were introduced for the first time in some seats. In 1995 the number of directly elected seats was increased, appointed members were abolished, and the franchise for the indirectly elected seats was widened. If the franchise for the 9 "new" functional constituencies which were introduced in 1995 to replace the appointed seats is narrowed, this will be the first time since 1985 that progress towards universal suffrage has actually been put into reverse.

In addition to the breach of Article 68 of the Basic Law involved in introducing regressive changes to the electoral arrangements such changes would be a breach of Article 39 of the Basic Law, which provides that the International Covenant on Civil and Political Rights as applied to Hong Kong shall remain in force. Article 25 of the ICCPR is not fully in force in Hong Kong because of the continued existence of legislative council seats which are not directly elected. However it is in force to the extent that there are elections by equal suffrage, therefore making the elections more unequal than before by narrowing the franchise and/or introducing corporate voting would be a breach of the rights under Article 25 of the ICCPR as applied to Hong Kong on 1 July 1997.

Functional constituencies were themselves subject to challenge in Lee Miu Ling v Attorney-General. That case was brought on the basis that the existence of functional constituencies breached Article 21 of Hong Kong's Bill of Rights, which is in the same terms as Article 25 of the ICCPR. It was eventually rejected after the British Government had, after the start of the case, amended the Letters Patent - at that date Hong Kong's nearest equivalent to a constitutional document - specifically to exclude from it any duty to hold elections by equal suffrage.

The legal position has been transformed since Lee Miu Ling by the disappearance of the Letters Patent from Hong Kong’s's law and the activation of the Basic Law. An attempt to narrow the franchise as proposed in the consultative document would be very likely to attract a further legal challenge as being unconstitutional.

Secondly, public policy requires that, if the Legislative Council cannot be elected entirely by universal suffrage it should at least be balanced so that it reflects public opinion in the community and gives some idea to Government of what changes would or would not be publicly acceptable.

Before 1995 the Legislative Council was very heavily weighted towards big business interests. The 1995 reforms still left business over-represented, but not as dramatically as before. Those who argue that because Hong Kong is a "business city" business should be given precedence forget that social harmony requires that all sections of the community feel that they have a voice. Hong Kong is currently a relatively harmonious society by world standards, but this has not always been the case in the past, and cannot be taken for granted in the future. In times of stress a properly representative Legislative Council is a critical safety valve for public pressure.

The 1995 electoral changes were introduced by former Governor Patten and were the subject of much political controversy between Britain and China. We urge the Government to examine any changes to measures introduced in 1995 on their merits and not in a spirit of reversing them simply because they were introduced by Mr Patten. That would be irresponsible and a betrayal of trust.

Thirdly, in the absence of equal suffrage the new functional constituencies reduce to some extent the inherent unfairness of a functional constituency system, in that they mean that most employed people now have a vote based on their occupation as well as on their geographical location. As the new functional constituencies give votes to many manual or clerical workers who did not have votes in the old functional constituencies they help to provide balance as compared with the extreme over-representation in Legco of the wealthier sections of the community which existed prior to 1995.

The extent of the unfairness of the pre-1995 electoral arrangements is not widely known. It is possible that the Government itself is unaware of some of the research which has been done on this subject, such as the study of functional constituencies by Mr Yau Shing Mu of the Economic Times. Set out below are some of his findings of that study.

In the last election in Hong Kong in which corporate voting was permitted, in 1991, Mr Lee Shau Kee, the chairman of Henderson Land Company Limited and other companies, controlled 21 votes in the Real Estate constituency. He had a personal vote, and then another 20 votes through companies in which he had a controlling interest. In most of these companies his controlling interest was 100% and in none of them was it less than 72% . The total number of registered votes in the constituency was only 373. Mr Lee with his 21 votes therefore controlled over 5% of all the votes in that constituency.

Mr Lee Shau Kee was not however the man with most votes. Another Hong Kong tycoon, Mr Lee Ka Shing, had majority control of 25 companies in various functional constituencies, as well again as his own personal vote, giving him control of 26 votes in a legislative council election.

The Swire Group controlled 15 corporate votes, 13 of them in the one constituency (General Chamber of Commerce). These examples, although dramatic, almost certainly under-estimate the extent to which corporate membership distorts and perverts the operation of elections in constituencies where it exists. If companies are controlled by nominees it can be very difficult to know who the real owners are.

Where someone controls a bloc of votes in a small constituency the risk must exist that that bloc of votes will be "sold" as part of a political or business deal. Where the existence of the bloc of votes is hidden because of use of nominees it may be difficult or impossible to detect that the election is in fact being manipulated by a small number of individuals.

The situation in the pre-1995 functional constituencies was similar to the situation in the Westminster Parliament in the United Kingdom before the Reform Act of 1832 in that both involved small electorates which were easily open to manipulation. The "rotten boroughs" with tiny electorates in pre-1832 England were bought and sold for favours by "borough mongers" like the Duke of Newcastle. It was this similarity that led former Governor Patten to describe the functional constituencies as "rotten boroughs". We endorse that description of constituencies where election is by corporate voting.

In Hong Kong too the existence of small constituencies has led to corruption. The legislator elected in the smallest constituency in 1991, Mr Gilbert Leung was subsequently convicted of corruption related offences in relation to his election campaign, deprived of his seat and sentenced to a period of imprisonment. The electorate in his constituency consisted of just 36 voters.

The effect of the Government's proposals in relation to the new functional constituencies would be to reduce the electorate in these constituencies from over 2 million to about 10,000. They will therefore greatly increase the scope for corrupt practices.

Corporate voting is an anachronism, a throw back to a previous historic era. It has no more place in the modern world than stovepipe hats or foot-binding. It was abolished in Britain ( where it never accounted for more than 4 seats in a Parliament of over 600 seats) in 1948. It has never existed in the United States. It was used in Italy under the Fascist dictator Mussolini but was abolished with the return of democracy there. It does not now exist anywhere. Its abolition in Hong Kong in 1994 marked its extinction in the world.

Where electorates have in the past been disproportionately weighted in favour of business the effect has been to protect the interests of a small minority of the wealthier citizens at the direct expense of the majority, to make the elected body unresponsive to pressures of social discontent, and to create a bitter and divided society. The classic example of this phenomenon is the Municipal Council of the International Settlement in Shanghai before the Second World War. In Shanghai it was the Europeans who controlled the Council with a restricted franchise that ensured that the Chinese majority would never gain control. The business community prospered, but at the same time Shanghai of the 1920s and 1930s became a by-word for gross inequality and exploitation, the Council of the International Settlement lacked all legitimacy among the general population, and the existence of the settlement was a symbol of foreign oppression of China which contributed to the rise of the Communist party. When Communism triumphed the most successful members of the Shanghai business community were forced to flee the city - in many cases to Hong Kong. It is deeply ironic that it should be one of those whose family fled Shanghai then, Mr C.H. Tung, who is now trying to reintroduce in Hong Kong the neo-colonialist practice of a legislature heavily weighted in favour of business interests.

The Government states in paragraph 7 of the Consultative Document that its objective is that the first Legislative Council election should be open, fair and honest. The proposed return to corporate voting is a giant step backwards towards a voting system that is secret, unfair and dishonest. We urge the Government to reconsider its view on corporate voting and not introduce this retrograde and corrupt practice.


1998 (c) Hong Kong Human Rights Monitor