Checks and balances
Christine Loh Kung-wai wrote recently in the South China Morning Post that the Basic Law is unique among the world's jurisdictions in entrenching specific interests, such as those of capitalists, in the electoral system. But are electoral arrangements to entrench special interests really so unique? History is actually replete with examples of electoral arrangements designed to entrench special interests, especially those of the rich, through restricting the franchise or screening out candidates.
For example, in 1710, a property qualification - higher than that for electors - was established for British MPs. In the constitutional debate in the American colonies, delegates favoured a property qualification for candidates not to favour the rich, but with the view that economic independence would lessen corruption.
Some might think such electoral restrictions have no relevance today because they were abolished long ago. But that's not so: franchise restrictions survived in other forms, particularly those on women. In the US, the 19th amendment to the constitution, allowing women to vote, was not approved until 1920. In Britain, women over 30 won the right to vote in 1918, but it was not extended to all women until 1928. France and Switzerland did not grant women the right to vote until 1944 and 1971, respectively.
In Hong Kong, as Oxford historian Steve Tsang points out, two problems of representation held back the development of democracy in the 19th century. They were the representation of the Chinese community in politics, and the demands from the much smaller community of transient British taxpayers or ratepayers to be represented in a local council.
Whitehall was content with the appointment of local Chinese, but electing them was a totally different proposition: popular elections could not guarantee sound and trusted members, they thought. Eventually, both the imperial and colonial governments decided Hong Kong would be better off with career diplomats or bureaucrats functioning as the custodians of the public interest.
According to Dr Tsang, at the end of the second world war, then-governor Sir Mark Young tried to put Hong Kong on the path of gradual transformation into a parliamentary democracy. Yet his plan was abandoned by governor Sir Alexander Grantham, who felt Hong Kong's unique circumstances, as a part of China, made the conventional democratisation process unviable. After the riots of 1966 and 1967, Sir David Trench came to the same conclusion; rather than introduce direct elections to Legco, he introduced the City District Officer Scheme to bring government closer to the people.
Hong Kong's current representational problem is how to replace all functional constituencies with directly elected seats in Legco. It ought to be seen against the historical need to fashion a system appropriate to the city's unique circumstances. Such a system would retain checks and balances to safeguard the efficacy of the government; ensure fairness, openness and accountability; and be in keeping with Hong Kong's status as a special administrative region of China.
It is far from unusual for modern parliaments to retain appointed members representing special interests. Britain's House of Lords can speak with the utmost freedom, independent of the need to kowtow to mass sentiment. It provides a powerful platform for ventilating points of principle relating to the national interest.
Hong Kong needs to tackle the phenomenon of 'representation without taxation', which lessens the pressure on voters to think hard about resource and taxation implications before clamouring for more tax-based services and facilities. A system with checks and balances is necessary, not to protect special interests, but to ensure the thorough debate and consideration of matters of general interest pertaining to Hong Kong's long-term welfare. In this lies Hong Kong's unique constitutional challenge.
Regina Ip Lau Suk-yee is chairperson of the Savantas Policy Institute