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Lecture 4 - Executive-led government POLITICAL PARALYSIS OF THE BASIC LAW REGIME AND THE POLITICS OF INSTITUTIONAL REFORM IN HONG KONG - Baohui Zhang ● ● ● ● ● ● ● The present constitutional system of Hong Kong is supposedly executive-led.​ In reality, it is a system of “disabled governance.”​ This ...

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Lecture 4 - Executive-led government POLITICAL PARALYSIS OF THE BASIC LAW REGIME AND THE POLITICS OF INSTITUTIONAL REFORM IN HONG KONG - Baohui Zhang ●

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The present constitutional system of Hong Kong is supposedly executive-led. In reality, it is a system of “disabled governance.” This article uses recent institutional theories to reveal the weaknesses of the Basic Law regime. It contends that if Hong Kong democratizes under the Basic Law institutional framework, it will not be able to promote good and effective governance. Few observers have seriously discussed the institutional problems of Hong Kong’s current constitutional framework. This omission could turn out to be a grave mistake because the institutional order of the Basic Law system will render a future democracy unworkable at best. (without an effective institutional regime, democracy could not guarantee social progress and stability) Hong Kong’s constitutional design combines some of the worst institutional attributes that will almost guarantee the failure of a democracy. These problems will be exhibited through a quasi-presidential system in which a non-partisan chief executive is permanently deprived of legislative support, while at the same time Legco remains highly fragmented as a result of a multi-party system. Thus, the most notable consequence of the Basic Law system will be its institutional inability to coordinate effective governance. In fact, this problem has recently resulted in systematic policymaking paralysis in Hong Kong and has rendered major policy innovations impossible. If Hong Kong democratizes under the Basic Law framework, it will become a “disabled” democracy. “governmental effectiveness,” which refers to governmental capabilities to innovate, coordinate conflicting objectives, and set and maintain priorities. They argue that “political institutions shape the process through which decisions are made and implemented and that these in turn influence government capabilities. (R. Kent Weaver and Bert A. Rockman, “Assessing the Effects of Institutions,” in Do Institutions Matter?) The primary weakness of the system there is the permanent lack of a legislative majority by the chief executive of the HKSAR. This threatens to generate increasing policy-making and governance paralysis in the future, especially when both Legco and the chief executive will be popularly elected and, thus, command dual legitimacy. In Hong Kong’s case, it is vital to examine the political considerations of the Chinese government, which effectively possesses veto power over any proposals for institutional reform. Thus, while institutional theories may help Hong Kong search for superior constitutional models, we must also understand which of these are politically feasible and which are not. ○ Chinese government, which tends to see any proposed changes to the Basic Law regime as efforts to undermine its sovereignty over Hong Kong. This attitude renders major institutional reform difficult and uncertain.

The Dilemma of the Executive-Led System in Hong Kong ● Basic Law elevates the chief executive above partisan politics so that only he or she represents all the people of Hong Kong. ● Ironically, the current system is characterized as executive-led, which supposedly gives the chief executive significant powers to make and implement political decisions. The truth is that this executive-led system is based on the political conditions that once characterized the  hese conditions either no longer exist or are rapidly colonial regime in Hong Kong. T changing. As a result, the present political system only has the pretense, but not the substance, of an executive-led system. ● However, to maintain the executive-led nature of the system, the Basic Law restricts the power of Legco to prevent it from being the equal of the chief executive. The HKSAR chief executive and heads of major bureaus of the government control most of the policy-making power. Most government policies do not need the approval of the legislature unless they involve changing laws or appropriations. The executive also controls the initiative for legislation, and all bills passed by Legco need the chief executive’s signature to be effective. The chief executive can also reject a bill and send it back to Legco for reconsideration. He or she can dissolve Legco if the same bill is passed a second time. However, if a new legislature passes the same bill again by a two-thirds majority, the chief executive must resign (Articles 49–52, Hong Kong Basic Law) ● The executive-led system in the colonial era was based on the governor’s personal control over the legislature. Today, the new political reality renders it no longer feasible ● CE could not gain support in LegCo: ○ The rise of political parties and electoral politics has fundamentally undermined the chief executive’s ability to govern in an executive-led manner. Because they lack party affiliation, chief executives are deprived of a workable majority in Legco to pursue major political and policy goals. Although Legco is designed by the Basic Law not to be the equal of the chief executive, it nonetheless can impede executive leadership. Legco can frustrate the chief executive’s policy initiatives by not approving them. After all, governmental legislation still needs to be approved by a majority of the legislature. ○ More important, major political and institutional reform measures that require revision of the Basic Law must be approved by two-thirds of the Legislative Council. This super-majority requirement makes chief executives particularly vulnerable to veto by Legco, because their lack of party affiliation deprives them of a reliable legislative majority. ○ Albert H. Y. Chen, who is a member of the Basic Law Committee of the National People’s Congress of China, also argues that the system has failed to achieve “executive-led” governance: “On the contrary, since the establishment of [the] HKSAR, Hong Kong has been unable to create a strong government. Indeed, the government has become weaker ever since. ” Institutional Theories and Hong Kong’s Paralysis

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As Cindy Skach emphasizes, in a presidential system the president needs to be a “party man,” which means that he or she must be someone “integrated into the party system and both supported by and supportive of parties.”11 This is an important precondition for the president to achieve legislative support, even if his or her party does not necessarily control a majority in the legislature. Absent this posture, the institutionalized conflicts between the president, who possesses no legislative support, and the legislature inevitably invites political paralysis. (The current political system as defined by the Basic Law is quasi-presidential.)

How Political Accountability Undermines Public Service Ethics: the case of Hong Kong Chor-Yung Cheung ●

Conclusion:

Lecture 5 - Legislature ●

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BL Art 73: Functions ○ Enact, amend or repeal laws ○ Examine and approve gov. Budgets ○ Approve taxation and public expenditures BL Art 74: Private member’s bills ○ LegCo members can introduce private bills that “do not relate to public expenditure or political structure or the operation of the government” Virtually all meaningful, substantive bills → not much power left for the members that can empower them or propel democratic reform Also depends on the judgment of the LegCo chairman The written consent of the Chief Executive shall be required before bills relating to government policies are introduced ○ Among 91 passed bills, only 2 are sponsored by individual members: University of Hong Kong (Amendment) Bill 2010; Hong Kong Polytechnic University (Amendment) Bill 2011 HKU: Sponsored by David Li (as Pro-Chancellor of HKU) Replacing some old terms with newer ones (eg, academic titles) “The Administration has confirmed that the Bill does not relate to public expenditure, political structure, the operation of the Government or Government policies.” Available as supple. material on Moodle (LegCo bill on HKU) PolyU: Sponsored by Lam Tai-fai (alumni of PolyU) Changes to PolyU Council formation; obtained consent from CE Budgetary Power

Cannot vote on increasing expenditure (pork-barrel in US); only approve/reject (recently, delaying) funding requests or new taxation item-by-item If gov. Budget is rejected/delayed, CE may apply for provisional appropriations (BL Art. 51) ○ Effect exerted by LegCo members is only minimal Committee System ○ Unlike legislatures in western democracies, not well-established ○ Only 3 standing committees: finance, public accounts, members’ interests ○ Select committee  (專責委員會): for particular matters of public interest; power from Powers and Privileges Ordinance (權力及特權條例) ■ Avg. 2-3 per term (4 years) 2 in 2012-16 term: Ex-ICAC Commissioner Timothy Tong’s receipt of benefits; Reasons for delay of Express Rail Link Lack of investigatory power? How far does it go? → can’t serve the functions as anticipated CE Tung was summoned for the committee for SARS epidemic (2003) Refused as “constitutionally inappropriate”; invited members to meet closed doors elsewhere Not accepted by committee (insisedt CE to come to LegCo and adduce evidence) but no follow up actions (no mechanisms when CE did not cooperate) No confidence motion (against government officials when they perform poorly) ○ Legislative norms, not mentioned in BL or Rules of Procedure Private bills, subject to split-voting mechanism (to be discussed later) From 1998-2013, 8 in total raised, 3 directed against the CE Only 1 passed, resulting in resignation of Chairman of Housing Authority (2000: “short pile incident” 短樁) 1 negatived but Financial Secretary subsequently resigned (2003) Origins of the FC: ○ Introduced in 1985 with 12/60 seats, expanded to 30/60 in 1995; 50:50 ratio with direct elected seats up till now LegCo Unofficial members before 1964: over 90% were from established rich families and representatives from business Expanded to early generations of Chinese elites later FC as a way to institutionalize business interests in 1985 ○ Necessary evil? FC as a way to appease existing elites regarding introduction of elections ■ FC as a way to represent "economic and professional sectors which are essential to future confidence and prosperity… [direct elections] run the risk of a swift introduction of adversarial politics, and would introduce an element of instability“ (Green Paper 1984) → want to assure that the privilege enjoyed by the elites would remain so as to minimize their opposition against election ○

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“Balanced participation” (均衡參與) of different societal interests ■ Not something in the Declaration or BL; but from a “decision” by the NPCSC in 2004 Rationale behind FC formation ○ Selection of constituency not by any coherent theory, but historical and political necessity Not only profit-oriented: social services, teaching included since beginning Not only “occupation”: political advisory bodies (Urban Council, Heung Yee Kuk…) Although similar, not directly mirror the EC: religious sector has EC representation but no FC seat ○ Economic Contribution? Supple. material: LegCo paper on FC contribution (eng/chin) → many of them together contributed to over 90% of local GDP → yet, by exercising 100% election, all local GDP contribution would be included which accords better with the rationale of economic contribution Range from no GDP (Heung Yee Kuk), 0.1% (Agricultural & Fisheries) to 22.7% (Import and Export) Different electorate definition adopted in selecting FCs ○ Many FCs combine multiple methods for defining electorate “Voting members” can be individuals or corporate bodies: Commercial 2nd have both; Commercial 1st only corporations Similarly non-standardized for electoral method ○

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conglomerate/foreign influence ■ Peter Woo (吳光正) holds 107 votes across 9 sectors Li Ka Shing and Hutchison Whampoa (84 votes) → Some subsidiaries not

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incorporated in HK (existence of foreign influence?) Foreign parties in FC - BL Art. 26: permanent residency required for voting; not applied in FC; Eg, Chamber of Commerce (electing 1 FC member) members : Consulate General of Belgium, Gov. of Province of Alberta (Canada), State of Illinois Far East Office… → can they reflect local interests? FC as an ill-conceived, convenience-based system Uncompetitive nature of FC ○ Due to the design of the constituency (similar as EC from last lecture), low contestation in a lot of constituencies Also increasing: Number of uncontested FC seats: 11 (2004), 14 (2008), 16 (2012) Chan Kin-por (Accountancy): “lack of challenger due to superior performance” Ng Leung-sing (Finance): “Not elected on 0 votes, but full votes (全票)” Similar to EC, few seats heavily contested, most are not -> bias FC have worse performance ○ 2012-13 GC:FC Average motions raised 3.0:2.6 Average speeches 24.9:18.4 Average questions 10.5:8.5 Star performer: Lau Wong-fat (FC: Heung Yee Kuk) Absent from voting 80% of the time (2nd highest: 64.9% Medical FC; lowest 0.9% Labor FC) Speech+Question = 7 (Leung Kwok-hung 61 times) Supple. Material: FC monitoring report

Reading 1: FUNCTIONAL REPRESENTATION IN HONG KONG’S LEGISLATURE (By Rowena Y. F. Kwok) ●

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Overview: Functional representation was introduced to Hong Kong’s legislature in 1985. Voting records show that functional representatives have a proclivity to veto motions that advocate democratic and accountable governance and a fairer socioeconomic order. This essentially blocks the articulation of public aspirations and renders democratization, as well as the stability and harmony of Hong Kong society, ever more uncertain. Because only certain designated social sectors are granted the right of representation, functional representation has long been criticized for giving undue privilege and influence to a small circle of selected elites, thereby creating different classes of citizens. Former Chief Secretary of Administration Anson Chan wrote: “At the heart of this debate [on democratic development] will be the pace at which indirect elections through functional constituencies are phased out. . . . It will be important . . . that all of our citizens feel they

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have an equal voice in the way they are governed. It would be extremely divisive to split the community into first and second class citizens.” In the words of a local academic, “. . . the system of functional representation is not only a continuation but an institutionalization of elite hegemony” in Hong Kong and “[u]nder such circumstances, ‘Hong Kong people ruling Hong Kong’ would, at best, mean ‘elitist functional groups ruling the Hong Kong masses’. . . . ” Goal: This study seeks to fill this void by investigating the voting positions of the functional constituency representatives (FRs) and comparing them with the positions of the geographical constituency representatives (GRs) → patterns of voting differences between the two groups Conclusion: ○ This study has shown that as far as recorded votes are concerned, FRs have consistently vetoed motions by GRs while supporting government motions. In particular, GR casualties are concentrated among those motions advocating more democratic and accountable governance and a fairer socioeconomic order. Such findings are of great importance. ○ The Hong Kong government is not popularly elected and lacks popular legitimacy. The chief executive is elected by a committee of several hundred while all principal officials are nominated by the chief executive alone for the central government’s appointment. The FRs, in their turn, are chosen by “small circle” elections. To the extent that the GRs have much larger electoral bases and may be taken as more genuine representatives of public opinion, it should be of grave concern that public opinion is suppressed so frequently by an alliance between the FRs and the government, especially in matters that Hong Kong society holds dear. ○ Indeed, there are plenty of signs that Hong Kong society is becoming more agitated, the July 1 mass demonstrations of 2003 and 2004 being the most vivid illustrations. A 2004 report by the Hong Kong Council of Social Services finds that “large segments of HK society like youth and low-income households are left out of the social and economic prosperity being enjoyed by others.” It adds that because of the inefficacy of official consultation channels, people have resorted to other grievance channels like the office of the ombudsman as well as civil protests and petitions to vent their grievances.32 If this situation is allowed to persist, and if the quality of governance continues to deteriorate, the SAR government will find itself at greater and greater distance and in greater and greater isolation from Hong Kong society, with less and less ability to predict the latter’s reaction to its acts. The conclusion that the FRs have assisted in bringing about this state of affairs seems quite inescapable Lecture 6 - District Council...