The Next Stage of Constitutional Reform in Hong Kong
Professor Kuan Hsin-chi, Professor and Chairman, Department of Government & Public Administration, Chinese University of Hong Kong, was the Foundation's guest speaker on 20 May 2003. Below is the full text of his speech.
Ladies and Gentlemen!
Constitutions are idiosyncratic. They differ greatly in their guiding principles and many other aspects. These differences can be partly traced to the major concerns of the constitution makers. On the other hand, a constitution is also the evolutionary result of practices in power (or jurisdictional) struggle. What is our major concern today? Are we prepared to engage ourselves in constitutional practices? Let us first review the past concerns.
The first stage of constitutional development in Hong Kong is characterized by a contested construction of a post-colonial future. The major concern was how to preserve the status quo despite the necessary return to Chinai. The second stage of development consists of an evolution of constitutional conventions through power practices. The overall concern of the parties involved was whether and how a strong executive-led government should be developed under the principle of "one country, two systems".ii
What then is our major concern today? A popular answer is: a concern with democracy. It is indeed a legitimate concern. The idea of democracy has conquered the world. There is hardly any government that does not claim that it is already democratic, or democratic with certain national characteristics, or at least aspires to become democratic in future. Under these circumstances, a mere concern with democracy is not very useful. Rather, we'd better ask what has been happening politically, whether it is desirable and how improvement can be achieved that may be called democratic. I suggest that we should in the first place identify the core syndrome that defines the political life of Hong Kong, in order to better focus our intervention in the next stage of constitutional development.
At first glance, the most salient pattern in Hong Kong today is a trap of frustrations. With formal powers at handiii, our government has been constrained in its many attempts to reform and to deliver. It has been frustrated by the public's discount of its success in forging a cordial relationship between Hong Kong and the mainland. On the other side, the general public has invested hope in the post-colonial government but experienced cumulative hardships in the course of time. While the plight is by no means all the government's making, the people remain frustrated that no change for a better government is possible. It is paradoxical that the gap between the government and the people seems to be getting bigger despite many favorable conditions.iv It seems inconceivable that the good faith and hard work of the government have been rewarded by widespread discontent and disapproval of the public. It is fashionable to blame our Chief Executive for his weak leadership as the root cause of poor performance. It is easy to argue that the panacea for all our political ills is to find a better successor. But is leadership succession really a way out of the trap of frustrations? Are our political ills not rooted in structural conditions? I am afraid that, while leadership matters, our problem is not a single individual, but structural. Without the structural faults removed, a different individual will still be unable to bring about much improvement.
At a deeper structural level, there is at present a huge gulf between the most powerful collective decision-makers and the citizens, without any strong intermediaries that can play an effective bridging or supporting role. This core problem affects both the procedural legitimacy and the governing capacity of our government.v The Chief Executive and the principal officials are the most powerful collective decision makers. Their recruitment and career do not depend on the preference of the politically awakening citizens. The Selection Committee in its present form is not constructed to be a representative intermediary between the government and the people. Neither is it meant as a standing body to hold the Chief Executive accountable on behalf of the HKSAR and the Central People's Government. The legislative elections, though more legitimate in the eyes of the electorate, do not determine the formation of government. As a result, political power is divorced from the representation of the people's will. Such a mismatch robs the government of the necessary legitimacy to mobilize resources in society, to demand sacrifice from the people when needed, and to reconcile the conflicts generated by its policy interventions.
In lieu of procedural legitimacy, we may make good with the availability of a charismatic leader. However, in the constitutional setting of Hong Kong where there is a strong presidential element without effective check and balance, the charismatic solution to legitimacy may run the risk of populist authoritarianism, as experienced in Latin America from time to time. Furthermore, charismatic leadership alone cannot solve the performance problem. Even great leaders like Mao Zedong need the backup of strong institutions, such as the Chinese Communist Party. This brings us to the issue of institutions that serve as supporting or bridging intermediaries between the government and the people.
In the past six years, our government, or more precisely the executive, has become increasingly lonely and more directly confronted by the masses. With the municipal councils abolished, the District Councils sidelined, the civil service antagonized, the local administration de-activated, the advisory bodies underused, and the legislature disconnected from the policy-making process, the collective executive is losing institutional capital for governance as well as bridging buffers between itself and the citizens. In such a void, the mass media has become the single, most important intermediary.vi
Indeed, the mass media has a growing, political role to play in a modern, mass society. Political communication via the mass media is far-reaching, effective and fast. On the other hand, given the time constraints and its tendency to simplify or even dramatize, the mass media is a very crude and ineffective tool for interest representation and aggregation. It would be wrong to think that a partnership between the government and selected mass media can ensure good governance. The mass media is no substitute for political institutions such as the legislature and the party system. We need to take these two institutions seriously as political intermediaries between the government and the people in our thinking about political reform. Before I go on however, let me first comment on the issue of electoral reforms.
The issue of electoral reforms is prominent these days. Election is regarded as the key to democracy and the medicine to cure the political ills in Hong Kong. The public demand for direct election of the Chief Executive and all members of the Legislative Council is clear and loud. I agree that free and fair election is extremely important and I endorse the principle of universal suffrage and that of "one man, one vote". I would like to caution though, that democracy is not simply about election. Despite free or relatively fair elections, some civilian governments in South America still lack effective power to govern. Since Hong Kong has a dual problem to solve, i.e. legitimacy as well as capacity, we have to be careful in crafting any electoral reform in order to avoid the emergence of a soft developmental authoritarianism centered on a popularly elected Chief Executive. I would argue that it is no less important for electoral reforms to strengthen the capacity of institutions such as the Legislative Council and the party system, than to ensure procedural legitimacy of the collective executive.vii
It is important to analyze how electoral reform may serve to augment the capacity of the Legislative Council, but it is equally crucial to clarify first what kind of capacity is to be enhanced. The question concerns the institutional relationship between the collective executive led by the Chief Executive and the Legislative Council. It is a hard question about the desirable nature of the relationship. Do we want a more rigorous and effective check and balance system or some kind of institutionalized partnership?viii The present system is an unstable kind of situational partnership whereby legislative support of executive initiatives hinges on the nature of the issues at hand, the constellation of functional and party interests, the ability of the executive to offer spoils to supporters, the degree of discipline within and the ad hoc alignment among political parties and so on.
Our current political system is very fragmented institutionally. Institutional fragmentation tends to freeze the diffuse pockets of political influence in society, render the aggregation of diverse interests difficult, prevent the swift formation of political consensus, narrow the popular base of support, and ultimately reduce the government's capacity to govern. Given their encompassing nature, political parties usually perform important functions, especially the function of interest aggregation. A pluralist and competitive party system can alleviate the problem of institutional fragmentation by cutting across the divides between the executive and the legislature, between functional and geographical representation, and sometimes among socio-economic cleavages. Political parties in Hong Kong are very weak by international standards and the party system is very underdeveloped. The next stage of constitutional development must review our anti-partisan political culture and anti-partisan institutional arrangements. Democracy in a modern, mass society is unthinkable without functioning political parties and a healthy party system. On the other hand, even a small step toward the recognition of a legitimate role for political parties may have significant consequence for legitimacy and capacity. Imagine, for example, what would happen if party leaders were allowed to stand for the election of the Chief Executive and if elected, to retain his or her party membership or leadership.
To conclude, issues of constitutional reforms are numerous, complex and inter-related. Today, I have focused only on the gulf between the ruling elite and the people. I have argued that the lack of strong intermediaries between the rulers and citizens underlies the legitimacy and capacity problem and that this dual problem may be solved by uplifting those political institutions that can serve the function of intermediation. I am open to your criticism and advice. Thank you for your attention.
i. The task was formidable because constitution-makers who distrusted each other had to solve multiple problems all at the same time: de-colonialization through national unification, preservation of local autonomy and the traditional ways of life, and democratization. As a solution, the Basic Law for the Hong Kong Special Administrative Region (henceforth HKSAR) promulgated in 1990 reflects the political impulses and interests of power holders to lock in future access to power and resources as firmly as possible, rather than a project to promote democracy. In the analysis of Prof. Yash Ghai, the principal logic of the Basic Law is to circumscribe the autonomy of the HKSAR in the cause of the preservation of a capitalist system of economy and at the same time limiting the authority of the Central Authorities in the HKSAR for the same purpose and to the same effect. Democratization is at best a half-hearted aspiration. The reform package of Chris Patten in 1995 to redress the democratic deficit did not survive the transfer of national sovereignty. It has however raised the democratic aspiration of the public and demonstrated that democratic reforms within the parameters of the Basic Law are possible.
ii. In Benny Y.T. Tai words, various participants, such as the Court of Final Appeal, the Central People's Government, the Chief Executive, the principal officials, the Legislative Council, and the political parties had to position themselves under the new order envisaged in the Basic Law. Positioning and repositioning are expressed in various major events, such as the right of abode controversy and the introduction of the principal official responsibility system. In the process, the hegemony of the one country has been established over the two systems and the dominance of the executive has been confirmed over the judiciary and the legislature. It is noteworthy that, like the Patten's reforms, major constitutional changes are possible without amending a single word in the Basic Law.
iii. As the term "executive-led government" implies, the current government should be actually more powerful than the administration under Chris Patten when the Legislative Council was more influential.
iv. These conditions include exit of the colonial government, the introduction of the responsibility system, the abandonment of the strategy of "de-politicization," the vow of the new collective executive to heed and deliver what the people wants, the diligence of the Central Policy Unit in conducting public opinion polls, the efforts of the responsibility principal officials to maintain direct contact with the men on the street, and the growing partnership of some mass media with the government to win the public relations war.
v. Procedural legitimacy and governing capacity can be treated separately. Since 1990, Nepal has held many multiparty elections with frequent alternation of power. Despite abundant procedural legitimacy, the Nepalese public remains highly disaffected due to the poor capacity of the government to deliver. On the other hand, it is possible for an authoritarian government to remain procedurally illegitimate but capable to perform. This talk takes the approach to treat legitimacy and capacity as inter-related for the purpose of crafting constitutional reforms.
vi. Elsewhere, there are various institutional points in the political system that citizens can access to have their legitimate interests protected. Here in Hong Kong, the common people have learned that the fastest and most effective ways to get something done from the government is to make a complaint to a phone-in program. When recently a case of language violence had been lamented, the critic was rejoined by a reader's comment that "such a popular phone-in program exists precisely because we have such a bad government."
vii. The role of election in the dual problem of legitimacy and capacity is a complex one. Suffice to cite a scenario that may not be desirable. Suppose that political bargaining for the post-2007 system led to an arrangement whereby the Chief Executive is directly elected while the Legislative Council remains partially so. What does it imply then? It means that in contrast to what we now have, the Chief Executive will become more legitimate than the legislature. Suppose further that there will be no redistribution of political power after 2007 and other things being equal, we will have a more legitimate Chief Executive with a lot of powers versus a less legitimate legislature without much power. I am not sure that such a system is in the best interest of Hong Kong.
viii. If the former, it would be better to introduce an incompatibility rule whereby double membership in both the executive and the legislature is prohibited. In the latter, it is desirable to let the formation of the collective executive body reflect the results of the legislative elections.