Functional Constituencies And Hong Kong’s Legco Elections

Nomination of candidates for the 2004 Hong Kong Legislative Council (LegCo) Election closed on August 4, with voting day set for September 12. A total of 88 candidates will run for 30 seats in five directly elected geographical constituencies (GCs). Another 60 candidates are competing for 19 seats in 17 functional constituencies (FCs). Hong Kong has 3.2 million registered voters who are entitled to vote for the directly elected seats, whereas there are only a total of 199,000 functional voters, many of whom won’t need to vote, as 11 of the seats have already been declared.

FCs are a unique feature of the Hong Kong electoral system. They appear to have mutated from their original design to imbue the legislature with a measure of professional expertise, into a system that advocates narrow, vested interests over the wider public interest. Many of the candidates standing in functional elections, including the eleven who faced no contest, campaign that they will work hard to serve their functional sectors. But the problem with FCs is that their respective electorates are small compared to the GCs. Indeed, some of them are so small that there are only a couple of hundred voters. Moreover, some of the most influential voters are not even individuals but companies, making it extremely difficult to identify who really directs the voting decisions. Large conglomerates in Hong Kong, with their many companies and affiliates, can control votes through these “corporate voters” in an aspect of the electoral system that has hardly any transparency. Election surveys being carried out in Hong Kong mainly focus on the GCs precisely because it is almost impossible to survey the FCs in terms of voters’ intention. A series of rolling election surveys on the GCs can be found at [www.hkupop.hku.hk] or [www.civic-exchange.org] for the public to track how candidates are doing.

Some of the smallest FCs were among the 11 uncontested seats. They include banking, insurance, transport, real estate and construction, agricultural and fisheries, as well as food catering companies. The others are chambers of commerce, industry federations and the Heung Yee Kuk, a body of 146 rural village elders. The erroneous assumption on the part of both voters and candidates that a functionally elected legislator is in LegCo to serve functional interests first and foremost, compounds the problem of holding these candidates accountable to the larger public.

So, despite Hong Kong being an international financial center, the candidates standing in the stock broking FC are running on platforms to protect small local brokers. Small broking firms make up the bulk of the voting members and have been resistant to better regulatory control. The incumbent in the catering constituency has a record of being against banning smoking in restaurants to protect workers and customers from the dangers of second hand smoking because many of the companies running restaurants are against it. The longstanding banking representative has a very poor record of engaging in overall legislative work because he is also the chairman of a bank and his attention is frequently required elsewhere. Meanwhile, the member representing the companies that make up the Chinese Chamber of Commerce gave the extremely disrespectful “finger” to the public last year shortly after the July 1, 2003 protest against the controversial Article 23 national security proposed legislation. It is hard to imagine that he could have survived politically anywhere in the civilized world except Hong Kong.

Functional candidates and voters appear not to have paid sufficient attention to the Basic Law, Hong Kong’s post-1997 constitution, or to the oath of allegiance a legislator takes at the start of each LegCo term. The Basic Law has one set of functions, powers and duties for all legislators, whether they are directly or functionally elected. The constitution does not provide that functional members are there to represent their functional sectors’ interests. When a legislator takes the oath of allegiance, it is to serve Hong Kong as a whole and not their functional sectors’ interests.

When FCs were first created in 1985, the original idea for establishing them was to introduce into LegCo individuals who had specific professional expertise in certain areas on the assumption that such experience would help legislative work. What Hong Kong has today are functional lobbyists sitting as legislators, who see their work as protecting special interests. In the past, the public seems to have given up on most of the FC LegCo members. Few of the functional legislators received direct public pressure probably because the public has written most of them off as not representing them at all. In reality, they can be pressured by the public to improve their attendance record and to pay heed to wider public interests.

The public has an interest to change perception about FCs and to ensure that broader interests are better served. After all, FCs are staying for a while. The Standing Committee of the National People’s Congress ruled in April that for the 2008 LegCo election, the ratio between functional and directly elected seats should remain at 50:50. For now, it is therefore unclear when Hong Kong can achieve universal suffrage, despite the fact that the Basic Law provides that universal suffrage be the “ultimate aim.” Indeed, the Standing Committee noted that the first possible opportunity for Hong Kong to achieve universal suffrage in terms of legislative elections was in 2008, even though Chinese lawmakers did not think Hong Kong would be ready by then.

The Standing Committee also left open the possibility that the number of LegCo seats could be increased in the 2008 election. Vested interests are likely to argue for more functional seats. The LegCo member for the real estate and construction FC is on record as saying that his constituency should be split into two: one for property development companies and the other for construction companies. There is no benefit to the public for FCs to grow in numbers and for the sectors to be made even narrower. The real estate and construction FC for example, has a total of 1,063 voters. By splitting it into two FCs, the number of voters for each will even be smaller. Since this FC was first created in 1991, there have been five elections, and yet there has never been a contest for the real estate and construction seat. The sector had always been able to field the candidate of their choice.

There is another aspect of the FC system that is critical to note. The FCs have a determining effect on policies. LegCo votes in two blocks. The voting rules provide that when legislators (not the government) propose motion debates, legislation and amendments to government legislation, they will only be passed if there is majority support from both the directly elected as well as functional members voting separately. This effectively means that 16 FC members can veto any proposal raised by the GC members. It is also true that 16 GC members can stop any proposal by the FC members. However, in examining voting records over the past seven years, the major controversies between GC and FC members have been over constitutional reform, executive accountability and labour rights issues, where the FC members were by and large resistant to change. It may therefore be said that the FC system entrenches political and economic inequalities in Hong Kong.