IT Voice’s Response to Public Consultation on
Arrangements for Filling Vacancies in the Legislative Council
IT Voice is a group of liberal IT professionals committed to contribute to the prosperity of Hong Kong and the IT industry. We comment on IT development strategies and public policies from time to time. Through this letter, we would like to respond to the HKSAR Government (hereafter Government) on “Public Consultation on the Arrangements for Filling Vacancies in the Legislative Council (hereafter LegCo).”
1. The Need to Change is based on a Wrong Assumption of “Existence of Loophole in the By election”
1.1 The Government’s “justification” to change the vacancy filling arrangements is to “convict” or discredit the by-election by citing the by-election in 2010 triggered by the resignation of the five LegCo members being an abuse of process (para 1.04) and waste of public funds. The Consultation Paper stated that the by-elections had a record low voter turnout rate of 17.19%. The Government also quoted two opinion polls conducted between November 2009 and May 2010, with around 50% to 58% of the respondents against the so-called “referendum.”
1.2 The Government had ignored the fact that she had contributed to the low turnout rate to the 2010 by-election by criticizing the use of by-election, not committing proportionate resources to promoting the by election, and significantly reduced signages to poll stations as compared to other by-elections in the past. Besides, the boycott by the pro-establishment camp supporters also contributed to the low turnout rate.
1.3 The Government was also selective in quoting part of the result of polls that are favourable to her position but failed to reveal and highlight many other opinion polls that brought out the issue of no progress in universal suffrage and on a general sentiment of rejection of Government’s proposal on political reform.
1.4 It was a logical flaw to infer from the low turnout rate of 2010 by-election to the conclusion that the general public does not support the current by-election system. There were no statistics showing those who did not vote in the “referendum” were also against the current by-election system. On the other hand, the figures of 50% and 58% who were against the so-called “referendum” were just too marginal and bear insufficient statistical significance in our opinion.
1.5 To the opposite of Government’s claim, by-elections of the LegCo have been an effective practice since the introduction of the proportional representation electoral system. The two by-elections of the LegCo held in 2000 and 2007 respectively received significant public support. The LegCo by-election in 2007 had a turnout of 52.06%, which was higher than the turnout in the 2008 LegCo election for the same constituency (50.17%).
1.6 The Government had wrongly placed expense of public funds over the rights of citizen to vote and to stand for election. Should a by-election be required as stipulated by law, the Government has to implement the election, and the fund required is the consequence of upholding the rights of the people to vote, rather than an excuse to rid people of the rights to vote. If the Government’s logic stands, then Civil Service is expensive, and therefore we should lay-off Civil Servants.
1.7 The Government was using unsound justifications to argue that there is a loophole in the by election (para 5.01, 5.06). That loophole, if any, is rather the lack of universal suffrage (and referendum mechanism) which people are rightly entitled to. That loophole is never the by-election itself. We conclude that the foundation of the Government’s proposal was not established and it implies that there is no value to discuss the four options proposed in the Consultation Paper.
1.8 The Government’s proposal was an over-reaction to the by-election in 2010, which was coined as a “de facto referendum” by the five resigned legislators. IT Voice is in the view that whether the by-election was an abuse of process was totally a political judgment. It should be left to voters to make that judgment.
2. Four Proposed Options in the Consultation Paper have Constitutional Flaws
2.1 Hong Kong citizens enjoy the political rights as provided by laws. In any legislation on the political structure, election method and vacancy replacement, these rights should be observed.
- The Basic Law Article 39 provides that the provisions of the International Covenant on Civil and Political Rights (ICCPR) and several other international conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR.
- The ICCPR Article 25 provides that every citizen should have the right:
- to take part in the conduct of public affairs, directly or through freely chosen representatives; and
- to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors
- The Hong Kong Bill of Rights Article 21(b) provides that “every permanent resident shall have the right and the opportunity … to vote and to be elected at genuine periodic elections guaranteeing the free expression of the will of the electors”
- The Basic Law Article 68 stipulates that the Legislative Council of the HKSAR shall be constituted by election.
- The Basic Law Article 26 stipulates that the “permanent residents of the HKSAR shall have the right to vote and the right to stand for election in accordance with law.”
2.2 The options of “replacement mechanism” in the Consultation Paper where automatic replacement of seats according to the past election results clearly deprive the electors rights to vote and to be elected in an election (by-election).
2.3 As public opinions and preferences on the candidates and the policies vary with time, relying on the choice in the past election is “not a free expression of will taking into consideration of current circumstances and facts” by the electors.
2.4 We opine that the proposal concerning single candidate list by the Government is extremely ridiculous. If the vacancy is left by a legislator from a single candidate list, the seat is transferred to other candidates. This is by far the most unreasonable arrangement. None of the option provided can closely reflect the will of the voters. Transferring the seats to candidates on other lists surely violates the will of the voters.
3. The Consultation Process is Problematic
3.1 The legislation process should consult the general public who are the stake holders, observing the following principles:
- Government should provide citizens with full and integral information based on facts for the public and the legislature to make informed decisions
- Government should not exclude any possible options for citizens to opt
- Government should not have a predetermined position and even if so, in analyzing each option Government should provide fair and unbiased view.
- The legislation process should be one of consensus building. Government should be process orientated, supportive, conciliatory, eager to let everyone to have a say, free with information and concerned with the feeling of citizens.
3.2 The current consultation is not open and neutral. The Government has deliberately excluded the option of maintaining the by-election as it is.
3.3 The Consultation Paper is selective is quoting of facts and information in supporting her pre-determined position. The Consultation Paper is full of judgment without sound justifications.
3.4 The Consultancy Paper used subjective and biased wordings in describing the “referendum”. “Leading questions” were used to mislead citizens to elect options in favour of the Government’s intended position. The problematic approach has rendered the results generated from this consultation reliable for decision-making.
3.5 The root cause of the “referendum” was the lack of channel for some citizens and legislators to express the majority consensus for realization of genuine universal suffrage in Hong Kong. The Government did not addressed the key issue by listening to what the citizens are yelling, but select to accuse “referendum” as abuse, damaging the harmony of the society and enlarging conflicts.
4.1 Government has a predetermined position before the consultation. On one hand it excluded the option of retaining the by-election. On the other hand, Government used biased and misleading language and wordings throughout the consultation paper and the subsequent promotion, to distort facts and mislead public opinion to accept Government’s stand to abolish the by-election. We would condemn such acts by the Government.
4.2 All of the four options in the Consultation Paper are depriving of citizens’ right to vote, right to nomination and right to stand for election. They are also against the free expression of will of the voters. They are fundamentally incompliant with the constitutional requirement of the Basic Law and other law in HKSAR. We strongly urge the Government to withdraw the four proposed options.
4.3 When there is vacancy in the Legislative Council it should be filled by by-election. Similar arrangement should apply to the District Council Geographical Constituency and District Council (second) Functional Constituency.
IT Voice also like to respond to the Questions Raised in the Consultation Paper (para 5.06) one by one:
(a) whether the phenomenon of Members resigning at will, triggering by-elections in which they seek to stand and involving a considerable amount of public funds, is a loophole that needs to be plugged?
(b) if it is considered that the loophole should be plugged, of the following options identified in Chapter Four …
(c) if it is considered that the loophole need not be plugged, whether the status quo should be maintained i.e. no legislative amendment will be made, a by-election will be held if a Member resigns, the resigning Member can stand in the resulting by-election, and a considerable amount of public funds will be spent;
(d) whether it is necessary to address the issue that holding a by-election (which adopts the first-past-the-post system) to fill a mid-term vacancy in GCs and the future DC (second) FC (which adopt the list proportional representation system in general elections) may result in an unfair change in the proportion of seats allocated among political parties and groups in the previous general election (see paragraphs 1.09 and 1.10); and if so, whether a replacement mechanism that is a fair and reasonable alternative to by-election can be considered;
The IT Voice Team