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=i ASIAN REVIEW
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An International Journal on Modern and Contemporary Asia
)72
Vol. XVIII, No. 1
Spring 2000
Canada-Hong Kong Resource Centre
Qtft from
Prof. Bernard Luk
7
American Asian Review Vol. XVIII, No. 1, Spring, 2000
FREEDOM, DEMOCRACY, AND HUMAN RIGHTS
IN HONG KONG SINCE 1997:
A HISTORICAL PERSPECTIVE
Bernard H.K. Luk
York University, Toronto
During the one-and-a-half decades before the United
Kingdom handed over government authority of Hong Kong to
the People's Republic of China on July 1, 1997, a good deal of
international attention was focused on the "megaphone diplo-
macy" around the constitutional development of the city state.
The question then appeared to be how much Western-style
democracy should be established in Hong Kong before and
after the handover, with London wanting more and Beijing
wanting less. Both supporters and critics of democratic
reforms often took for granted that freedom, democracy, and
human rights were British initiatives to bequeath a Western
legacy to its former colony. The experiences and aspirations of
Hongkongans themselves typically were not part of the inter-
national discussion since Hongkongans were assumed to be
politically apathetic.^ However, the developments in the Spe-
cial Administrative Region (SAR) since 1997 cannot be under-
stood without due regard for those experiences and
aspirations.
1 On the theme of the supposed political apathy of Hongkongans, see Lu
Hongji, "Zhimindi jiaoyu yu suowei zhengzhi lenggan," Ming Pao, August 9.
1996.
Canada-II: 3 Kong RecciTce Centre
1 Spadina Crescent, Rm. Ill • Tbronto, Canada • M5S lAl
This paper will discuss issues and institutions of freedom,
democracy, and human rights in Hong Kong, within the con-
text of the longer term development of Hong Kong society and
politics.
The Backdrop: British Colonial Set-up and Chinese
Authoritarian Milieu
For more than a century after the British established colo-
nial government in Hong Kong during the Opium War, there
was very little constitutional development. The Executive and
Legislative Councils were nominated or appointed by the gov-
ernor, who in theory enjoyed almost absolute power in the
government. There were no elections except in the Urban
Council, which had very limited powers and was elected by a
miniscule franchise. In the aftermath of the Second World
War, Governor Mark Young proposed the introduction of
elections to a municipal council with gradually expanded pow-
ers. However, the Young Plan failed to materialize because of
the opposition of the local British and Hong Kong Chinese
ehtes and because of the Cold War. While most of the rest of
the British Empire underwent democratization and
decolonization during the 1940s to 1970s, Hong Kong retained
the constitutional framework of a nineteenth-century colonial
government up to the 1980s. The government was not consti-
tutionally accountable to the governed.
Administering ''on borrowed time in a borrowed place,"
the British had neither the desire nor the capacity to aim for
absolute rule. Rather, they had a limited agenda, encapsu-
lated in the policy of "positive noninterventionism," to do the
minimum necessary to maintain social order and political con-
trol, so as to generate the maximum economic benefit. Cer-
tain parameters were set for the population in order to contain
the potential for partisan conflict (i.e., between the Chinese
Nationalist and Communist parties) or for anticolonial action
(organized by either of those parties or arising from local frus-
trations). A series of laws was made in the 1950s to tighten the
preexisting control. For instance, the Education Ordinance of
1953 and its subsidiary regulations prohibited any kind of
political activity in schools, and any discussion of contempo-
rary Chinese politics or of colonialism constituted a political
activity. Other ordinances dating from the 1950s and 1960s
gave power to the Government to close down a newspaper
and imprison its publisher for a number of pohtical offences,
required any association to register with the commissioner of
poHce, and made it potentially a criminal offence for any nine
unrelated persons to assemble on the street.^
These laws severely restricted the civil liberties and polit-
ical rights of the people, and made for a highly authoritarian
regime. Schools and textbooks were regularly inspected for
political censorship, people were charged and convicted for
illegal association or illegal assembly, and some were deported
to the Chinese mainland or to Taiwan for political offences.
On a few occasions, newspapers were prosecuted; there were
more instances when they were fined or warned to remain
within the permissible hmits.
By and large, Hong Kong people grumbled and stayed
within the law. In the general context of East Asia in the
1950s and 1960s, Hong Kong still allowed more room for
diversity of opinion and expression compared to the party dic-
tatorships on either side of the Taiwan Strait. Being used to
more stringent and arbitrary rule in the China of the emperors,
the warlords, and the party dictatorships, many Hongkongans
found credible the claims made by the local establishment
media that Hong Kong was the "show window of democracy in
2 A.E. Sweeting, A Phoenix Transformed (Hong Kong, Oxford University
Press, 1993), 159. B. Luk, "Chinese Culture in the Hong Kong Curriculum,"
Comparative Education Review, 35 no. 4 (November 1991), 650-668. John D.
Young, "The Building Years," in Hong Kong between China and Britain, M.K.
Chan, ed. (Armonk. M.E. Sharpe, 1994), 131-47. Raymond Wacks. ed.. Civil
Liberties in Hong Kong (Hong Kong, Oxford University Press, 1988). especially
chapters 5-8.
10
the Far East." In fact, despite the restrictive laws, there was
still plenty of space in the press and in daily hfe for free report-
ing and discussion of Chinese politics. Hong Kong issues, or
world affairs, so long as one did not advocate or organize for
the overthrow of the Colonial Government. That freedom was
fully appreciated and utilized. In Hong Kong, one could find
the full spectrum of Chinese political and philosophical convic-
tions represented in speech and in print, along with a plethora
of Chinese and foreign religious beliefs. The diversity was a
basic fact of life and of the popular image of what Hong Kong
was about.
Beyond this relative freedom of beliefs and expression,
traditional Chinese ideas of hierarchical relationships and
patriarchal authority still prevailed during those decades. Par-
ents, teachers, and employers enjoyed power that was not to
be disputed. Freedom from arranged marriage was still to be
struggled for; physical punishment and verbal abuse from
teachers was a daily occurrence in schools; employees were
not protected from arbitrary dismissal or pay deduction, or
from physical or sexual abuse by their bosses. Subordinates in
any situation, especially women, often were victims. There
was no appeal from such authority except to the "heavenly
principles and the hearts of the people" {tianli renxin).
Hongkongans in the 1950s and 1960s enjoyed a high degree of
freedom, democracy, and human rights only relative to neigh-
boring societies.
In the quarter-century after the Second World War, Hong
Kong was an atomistic society of refugees suffering under
grinding poverty and social inequities. The anachronistic
Colonial Government, while energetically trying to cope with
the worst problems of shortages of housing, sanitation, and
education, was ill equipped to handle the popular frustrations.
Three times major riots erupted: in 1956, 1966, and 1967.-^
^ John D. Young, ibid. Teresa Ma, "Chronicles of Change. 1960s-1980s,"
in the 12th Hong Kong International Film Festival: Changes in Hong Kong
Society through Cinema (Hong Kong, Urban Council, 1988). 77-82. Ian Scott.
11
The Star Ferry riots of 1966 prompted the Government to
triple its education budget and review its social welfare pohcy.
By the end of the 1960s, the Government had come to realize
that its legitimacy to rule depended not on the "Unequal Trea-
ties" signed in the last century with the emperors of China, but
on what it could perform in that day and age for the people of
Hong Kong. That realization, along with the coming of age of
the children of the refugees, brought into being a new society
and new government-people relations in the 1979s and 1980s,
and fertile ground for democracy and human rights in the
1990s.
The Decade of Protests: Activists, Society, and Government
The Communist confrontation and riots of 1967 were the
last major upheaval in Hong Kong society. The 1970s saw a
series of peaceful civil protests that gave rise to highly signifi-
cant though informal changes in the way Hong Kong was
governed.
By 1971, Hong Kong had a local-born majority in the popu-
lation for the first time in its history. The younger generation
all had at least elementary schoohng, and an increasing pro-
portion had secondary or tertiary education. They also had
developed a sense of belonging to the city where they were
born and bred and made contributions. They felt they had the
right to demand Hong Kong's improvement. Since political
independence was never an option for Hong Kong, and this
was always known, their demands focused not on political
power, but on matters of social and economic substance. Suc-
cessive protests and strikes during the 1970s, spearheaded by
university students, primary school teachers. Christian crusad-
ers, social workers, nurses, and trade unionists, gradually
changed the tenor of Hong Kong society, not only by making
Political Change and the Crisis of Legitimacy in Hong Kong (Hong Kong, Oxford
University Press. 1989), 81-106.
12
substantive gains, but also by creating a civil society within a
plural community. The government developed in mutual
accommodation with this expanding social space, so that while
it retained political power and the formal structure of the old
colonial regime, by the early 1980s, that power was exercised
in a manner radically different from the early 1960s.'^
The protests and strikes of the 1970s were basically peace-
ful and orderly. While many of them broke the laws of the
time against illegal association and illegal assembly, they were
characterized not by violence but by an increasing sense of
purposefulness and self-discipline. In the process, Hong Kong
became a less authoritarian and more open society, with a
growing sense of freedom and human rights rooted in the com-
munity itself.^
The decade opened with the Chinese language movement
among university students, which successfully demanded that
Chinese be made an official language along with English.^
This movement, which targeted a symbolic as well as func-
tional aspect of British colonialism in Hong Kong itself, was
followed by another anti-imperialist protest. The Diaoyutai
movement over the transfer by the United States to Japan in
1972 of a group of small islands in the East China Sea. which
-* Ian Scott, ibid., 106-26. Nelson Chow, "A Review of Social Policies in
Hong Kong," in Hong Kong Society: A Reader, ed. Alex Kwan. et al. (Hong
Kong: Writers* and Publishers' Cooperative. 1986), 137-54.
5 Elizabeth Sinn, "60-Niandai Lishi Gailun," in Hong Kong Sixties:
Designing Identity, ed. Matthew Turner and Irene Ngan (Hong Kong: Hong Kong
Arts Centre, 1995), 80-83. M. Turner, "Hong Kong Sixties/Nineties: Dissolving
the People." ibid., 13-34.
6 On this and the following movements: P.K. Choi. "A Search for Cultural
Identity: The Students' Movement of the Early 70s." in Differences and
Identities, ed. A.E. Sweeting (Hong Kong: Hong Kong University Faculty of
Education, 1990), 81-107; Hong Kong Federation of Students. Xianggang
Xuesheng Yundong Huigu (Hong Kong: Wide Angle Press, 1983); Lu Hongji,
"Xianggang Lishi Yu Xianggang Wenhua," in Culture and Society in Hong Kong.
ed. Elizabeth Sinn (Hong Kong: Hong Kong University Press, 1995). 64-79; and
B.K.P. Leung, Perspectives on Hong Kong Society (Hong Kong, Oxford
University Press, 1996), chapter 7.
13
were claimed by protesters to be Chinese territory, again was
organized by university students and widely supported in the
community.
The anticorruption movement targeted institutionalized
corruption in the Hong Kong police and other public agencies.
Successful demonstrations organized by university students
and church groups, involving tens of thousands of citizens, led
the Government to establish the Independent Commission
Against Corruption (ICAC) in 1974. to root out bribery in the
police and other public sector agencies. The ICAC Ordinance
also outlawed gift-taking by pubhc officials, thereby marking a
break with a venerable Chinese tradition, and redefined the
relationship between holders of Government office and mem-
bers of the public.
Throughout the 1970s, the Christian Industrial Committee
and other church-related groups organized labor protests for
less exploitative conditions, and encouraged the development
of a labor movement independent of the Communist or
Nationalist parties (whose labor unions in Hong Kong had
been engaged in struggles against each other rather than for
labor rights). A number of improvements to labor legislation
resulted.
A successful elementary school teachers' strike led to the
formation of the Hong Kong Professional Teachers' Union
(HKPTU) and to improved processes for management-staff
relations. This was followed by nurses's strikes. The HKPTU
became the archetype for other white-collar unions, especially
in the public sector. Blue-collar and white-collar unionism had
implications far beyond union membership. By raising the
public specter of rightful challenge against arbitrary authority
of the employer or management, the sense of submissiveness
in society at large was reduced.
The Golden Jubilee School affair of 1977-78 was the culmi-
nation of nearly a decade of peaceful protests. The principal
of the high school was discovered by the students and teachers
to have embezzled school funds. Their protests led to disci-
14
pline by Government school inspectors, which, in turn, led to
an escalation of protests. As the situation escalated over the
year, the Executive Council (the highest decision-making body
of the Government) invoked the Education Ordinance to
close the school. The students and teachers then held a peace-
ful and orderly public sit-in, which lasted for weeks, demand-
ing a public investigation of their grievances and the
reinstatement of their school. The community was split down
the middle between those who supported the protestors and
those who supported school authority. In the end, the Gover-
nor appointed a commission of inquiry. The commission
apportioned blame evenly among the director of education,
the school authorities, and the protestors, but to a large extent,
vindicated the protestors. The Government relented from its
earlier decision, and allowed them to have their own school.
In each of these instances, social protests were made
through peaceful demonstrations (labeled "petitions"). Often
the target of the protest was some aspect or policy of the colo-
nial state itself. In many cases, the state made significant con-
cessions to the protestors. Hong Kong society and its
government both became more modern with a greater sense of
belonging, of public participation, and of diversity of views and
interests in peaceful debate rather than in violent confronta-
tion. Numerous community groups and organizations
emerged — professional and occupation groups as well as
"pressure groups" — which advocated particular public poli-
cies. Prominent among these groups were students', teachers',
and social workers' unions. By the late 1970s, public forums
and demonstrations were almost daily occurrences. Many of
these were organized by the proliferating nongovernmental
organizations; some led to the creation of such organizations.
The community groups and organizations later became the
nurseries for the prodemocracy political parties which
emerged in the 1990s. Many of the leaders across the political
spectrum of the 1990s had their first taste of public life as
social activists in the 1970s.
15
The Government responded with what gradually became
an institutionalized interface with the many activist groups. A
protocol evolved for protests and demonstrations. While the
ordinances against illegal association and assembly remained
in the statute book, their application became more and more
relaxed. Demonstrators were met not with riot squads or
police harrassment, but with police escorts to direct traffic and
with Government officials to shake hands and receive the
"petitions." The Government broadcaster, Radio-Television
Hong Kong (RTHK), began to organize weekly forums and
daily phone-in programs to discuss issues which concerned the
public. These discussions, which often became quite heated
and could be very critical of the Government, were broadcast
live. More proactively, the Government expanded its system
of consultation committees to cover all aspects of public pol-
icy, often coopting the vocal "pressure groups" to have their
say at the committee table. It also published "green papers"
for public debate on major policy initiatives, and took note of
discussions in public forums and the press, as well as advocacy
group submissions, when it reformulated its thinking in more
definitive "white papers."
Meanwhile, Government interference with the press
became more and more rare, and pohtical censorship of text-
books and of school work was greatly relaxed. The rule about
"no politics in school" remained in the statute book, but dis-
cussions regarding Chinese partisan poHtics and Hong Kong
social and political issues took place frequently in high school
history or social studies classes. The official syllabus of Chi-
nese history in high schools, which during the 1960s concluded
with the Republic Revolution of 1911, was extended by the
1980s to cover up to the 1970s (and by the 1990s, to cover up
to 1989), with evenhanded treatment of both sides of the Tai-
wan Strait.
In this way, the civil society which grew up during the
1970s was institutionalized, and occupied ever-increasing space
made available by the colonial state. While the constitutional
16
framework remained unchanged until 1985, the practice of
government during the 1970s and early 1980s was less and less
like the old colonial regime, and more as a locally-developed
and increasingly open administrative state. In many ways.
Hong Kong could be said to have been decolonizing without
attaining a poHtical identity.^
Constitutional Development, 1982-97
The introduction of district board elections in 1981 was a
constitutional innovation initiated by the Government to inter-
face further with the civil society. The boards were first
elected in 1982 from a broad franchise, and although enjoying
no real power, they were allowed to discuss any public issue
that related to their districts. The Government promised that
these elections would be followed in a few years' time by more
elections to some of the seats in the municipal councils (i.e.,
the Urban Council and the newly created Regional Council),
and then to a number of seats in the Legislative Council. Vot-
ing for legislators would be by "functional constituencies" of
occupational groups in 1985, and by direct elections in geo-
graphical constituencies in 1988.
As the British prepared for negotiations with Beijing over
the future of the territory in 1982, they apparently felt the
need for the people of Hong Kong to have a greater say about
their own domestic affairs. The granting of elections at that
particular point was a British decision. But it is important to
recognize that the elections were not a gift handed out to a
docile, quiescent, and apathetic subject population. Rather,
they were the natural next step for Hong Kong after a decade
^ Ian Scott, Political Change, chapter 4. Norman Miners, Government and
Politics in Hong Kong (Hong Kong, Oxford University Press. 1982). Ambrose
King, "Xingzheng Xina Zhengzhi," in Xianggang Zhi Fazhan Moshi, ed.
Ambrose King, et al. (Hong Kong: Chinese University Press. 1985), 3-19. Steve
Tsang, ed., A Documentary History of Hong Kong: Government and Politics
(Hong Kong: Hong Kong University Press. 1995). 247-69.
17
of widespread and deeply-rooted social activism, to constitu-
tionalize the hitherto informal interface between government
and society.*^
The Sino-British Joint Declaration of 1984. which resulted
from the negotiations in Beijing, seemed to Hongkongans to
have implied recognition by both metropolitan powers of the
constitutional promises made by the Colonial Government.
The people's general acquiescence to the Joint Declaration
was given with such promises in mind. However, as soon as
the Joint Declaration was ratified and the Hong Kong Govern-
ment made moves in 1986 toward direct legislative elections
for geographical constituencies in 1988, Beijing objected and
London withdrew support. During 1986-90. when the Beijing-
appointed committees to prepare the Basic Law for the post-
1997 SAR Government set to work, grey areas within the Joint
Declaration were exploited by the drafters to reduce the dem-
ocratic promises which many people in Hong Kong believed to
have been made in that document. The Basic Law. which was
promulgated by Beijing in 1990, allowed less room for democ-
racy than the 1981 promises, and gave more power for the
SAR Government to control the society than had been exer-
cised in practice by the Colonial Government for more than a
decade. Strong protests were lodged by many community
groups during the Basic Law drafting process and after the
promulgation. Some of the groups soon developed into poht-
ical parties for elections in Hong Kong.^
The Tiananmen prodemocracy movement and massacre in
1989 provoked massive popular responses in Hong Kong in
support of the movement and against the repression. These
responses grew at least in part out of Hongkongans' own frus-
trations with the stalling of democratization since the ratifica-
8 For details, see B. Luk, "The Rise of the Civil Society in Hong Kong," in
Human Rights and Democracy in Asia, ed. Amitav Acharya, et al. (forthcoming).
9 M.K. Chan. "Democracy De-railed," in The Hong Kong Reader, ed.
M.K. Chan, et al. (Armonk, M.E. Sharpe. 1996), 8-37. Ian Scott, Political
Change, 268-305.
18
tion of the Joint Declaration.^" The British Government was
prompted to rethink its poHcy about democratization in Hong
Kong. A Bill of Rights Ordinance was enacted in 1991. Sub-
sequently, most of the Draconian laws, which restricted free-
dom of expression, assembly, and association, and which had
been apphed in an increasingly relaxed manner since the 1970s
but remained in the statute book, were now repealed or
amended in a more liberal manner. The law courts also struck
down or reinterpreted a number of ordinances in accordance
with the Bill of Rights Ordinance. Elections by both func-
tional and geographical constituencies were held in 1991 for
the Legislative Council, which, however, still retained a
number of seats appointed by the Governor. In 1992, the last
British Governor, Christopher Patten, presented a constitu-
tional package which exploited the grey areas in the Basic Law
to restore some of the democratic promises implied in the
Sino-British Joint Declaration. Beijing objected vehemently
to the package. After protracted and unsuccessful negotia-
tions with Beijing, the package was eventually enacted by the
Hong Kong Legislative Council. Elections were held under it
in 1995. This was the first time in which all the members of the
district boards, the municipal councils, and the Legislative
Council were returned by elections. The years 1995-97 saw the
most vocal and open debates of public issues in the representa-
tive bodies. ^^
From 1985 forward, prodemocracy candidates consistently
enjoyed wide support in the district board, municipal, and Leg-
islative Council elections. In every election during the 1990s,
they won more votes and more seats than any other group,
although they never held a majority of seats because of the
10 B. Luk, "The Beijing Democracy Movement and Hong Kong"s Students
and Teachers," in The Other Hong Kong Report 1990. ed. R.Y.C. Wong, et al.
(Hong Kong: Chinese University Press, 1990), 391-94.
" Ian Scott, "Political Transformation in Hong Kong: From Colony to
Colony," in The Hong Kong-Guangdong Link: Partnership in Flux, ed. R.Y.W.
Kwok, et al. (Hong Kong: Hong Kong University Press. 1995). 189-219.
19
appointive and/or functional constituency elements in those
bodies. Popular support for the advocates for democracy and
civil rights was clearly evident. Many of the candidates of the
prodemocracy parties won the support of the voters on their
track records as social activists of the many protest or reform
movements of the 1970s and 1980s.
State and Society at the Time of the Handover
By the time of the handover, Hongkongans had exper-
ienced nearly three decades of widespread social activism, at
first for specific ameliorations of conditions in Hong Kong,
and then for democracy and human rights in Hong Kong as
well as in China. The million-strong marches in support of the
Tiananmen movement in 1989, and the sustained massive
annual commemorations of the massacre since then, have cap-
tured the imagination of the world. These demonstrations did
not arise in vacuo. Rather, they resulted from the generation-
old evolution of civil society. The elections to the representa-
tive bodies, and the parties which were formed to contest
those elections, only gave formal political expression to that
evolution. Without deep roots in an assertive and activist pop-
ulation, the package of last-minute elections introduced by
Governor Patten would not have been able to survive the
handover. However, the vibrant and maturing but amorphous
civil society, without the political institutionalization brought
about by the Patten package, also would not have been able to
attain coherence.
Another significant development during the Patten era was
the greater transparency of government. While he introduced
an all-elected legislature. Governor Patten presided over an
executive-led government; he did not deviate from the earlier
Hong Kong tradition or from the Beijing-London requirement
to "converge with the Basic Law." But by his own example
and what he demanded of his officials, the processes and ratio-
20
nales of Government policies were made more transparent.
Officials spent much time meeting with elected representatives
and members of the public to receive suggestions in the formu-
lation of policies, or to defend and lobby for support for those
policies. Government and people were drawn much closer
together. The people were made to feel that they enjoyed
more respect from their government than ever before, and
that they had some say in how they were governed. This more
open style of governance was again a logical development
from the Government's interface with the public which had
been evolving since the 1970s, and was just as important for
the institutionalization of freedom and democracy as the elec-
toral reforms.
During the years leading up to the handover, despite the
vociferous attacks by Beijing and its mouthpieces in Hong
Kong on the Bill of Rights Ordinance and the Patten constitu-
tional reforms, which upheld the specter of greater restric-
tiions in the future, it was clearly evident that the civil society
continued to expand. In 1996, it was estimated that there were
on average three street demonstrations a day and numerous
forums to discuss issues of public interest. The advocacy
groups continued to proliferate. In addition to groups focus-
ing on educational and social policy, there also were many new
groups representing feminist, environmentalist, and human
rights viewpoints. ^^
So at the end of June 1997, Hong Kong had a fledghng all-
elected Legislative Council, as well as all-elected municipal
councils and district boards. And the society had a strong
sense of organized and self-disciplined assertiveness and of
civil rights, nurtured over nearly thirty years. It also had ever-
expanding freedom of opinion and pluralism of behefs.
enjoyed over five decades. This civil society faced the depar-
ture of a sovereign power that understood it had no legitimate
12 See, for example. Uncertain Times: Hong Kong Women Facing 1997
(Hong Kong: Hong Kong Women Christian Council, 1995).
21
claim to the territory, save by its performance, and the arrival
of another sovereign power that beheved it enjoyed ultimate
and indisputable legitimacy by virtue of national reunification.
While the two sovereign powers and their respective support
groups held solemn ceremonies and gala performances, the
popular mood seemed to have been one of subdued resigna-
tion. As alternatives to the official celebrations, many activist
organizations stayed away from the colorful shows, and held
somber seminars and street theater to reflect on Hong Kong's
history and situation.
Constitutional Development, 1997-99
The two years since the handover have witnessed a tug-of-
war between, on the one hand, the civil society and living
expressions of freedom, democracy, and human rights, and on
the other hand, the opposing notions of "social harmony" and
"depoliticization" vocalized by Chief Executive Tung Chee-
hwa, along with certain efforts to extend executive power. So
far, civil society remains vibrant and vigorous, and manages to
hold its own.
Following the handover, the SAR Government has been
constituted according to the Basic Law promulgated by Bei-
jing in 1990. The Basic Law provides for an executive-led gov-
ernment, with its Chief Executive and principal advisers
appointed by Beijing. It also prescribes a Legislative Council
of sixty seats. The first posthandover Council of two years'
duration consists of twenty geographical constituency seats,
thirty functional constituency seats, and ten seats filled by an
Election Committee of eight hundred. The second Council
(four years' term) will consist of twenty-four geographical
seats, thirty functional seats, and six Election Committee seats,
while the third Council (again for four years) will have thirty
each of geographical and functional seats and no Election
Committee seats. By the year 2007. a two-thirds majority of
22
the Council, with the consent of the Chief Executive, will be
allowed to change the future composition of the legislature,
say, into a chamber made up entirely of directly-elected geo-
graphical seats. '"^
Governor Patten's constitutional reforms followed gener-
ally the composition laid down in the Basic Law for the first
post-1997 Council, in the hope that the Council elected in 1995
would be allowed to continue to sit after the handover (this
concept was called the "through train"). However, PRC offi-
cials alleged that Patten's package reneged on secret agree-
ments between London and Beijing, although they never
explained how. They also perceived the resounding success of
prodemocracy candidates and parties in the 1995 elections as
grave threats to their designs for Hong Kong. Therefore, Bei-
jing decreed that there would be no "through train" for the
Hong Kong electoral system and representative institutions
after the handover on July 1, 1997. Instead, it set up a "second
stove," namely, a provisional legislature "elected" by an Elec-
toral Committee of Beijing appointees, six months before the
handover.
The Provisional Legislative Council (PLC) was made up of
the 1995 Council minus almost all the popularly-elected mem-
bers, who were replaced by former British appointees, pro-
Beijing candidates who had lost in the 1995 elections, and
political unknowns favored by PRC officials. The body began
its deliberations across the border in Shenzhen months before
the handover, and took over as the SAR legislature on
handover night. At first, it was unclear how long Beijing
intended the PLC's term to be. Intense international pressure
preceeded the promise that new elections would be held for
'^ The provisions are found in the Basic Law, Articles 67-69 and Annex II,
as well as in the April 4. 1990, Decision of the National People's Congress on the
Method for the Formation of the First Government and the First Legislative
Council of the Hong Kong Special Administrative Region appended to the Basic
Law.
23
the first Legislative Council within a year.^"*
The legality of the Provisional Legislative Council and its
acts was challenged in Hong Kong courts in the weeks that
followed the handover, but it was upheld by the Court of
Appeal in an obiter dictum. While the unseating of the elected
Council was certainly a major setback for democracy, the
extension of the effective function of the judiciary to rule on a
fundamental political issue of the constitution was a significant
affirmation of the separation of powers. ^^
Also within weeks after the handover, the SAR Govern-
ment published the stipulations of the first Legislative Council
elections to be held in 1998. The twenty geographical seats
would be elected by proportional representation, a compro-
mise between the first-past-the-post system favored by the
prodemocracy parties, and the multi-seat, single-vote system
favored by the pro-Beijing groups. The thirty functional seats
would retain the twenty-one occupational categories in exist-
ence before the Patten reforms, and discard Patten's nine new
categories which practically embraced every employed person.
Instead, nine other (and much narrower) occupational catego-
ries were created. The overall effect was to reduce the total
number of eligible voters for all thirty functional constituen-
cies from over two million in 1995 to about 150,000 in 1998.^^
The elections held on May 24, 1998, were open, clean, and
fair, and a resounding victory for democracy and civil society,
but they produced an undemocratic Legislative Council
because of the artificially restricted constitutional framework.
Voters turned out in record numbers, despite the tropical rain-
storm that lasted for most of the day. One and a half million
14 Frank Ching, "Are Hong Kong People Ruling Hong Kong?" in The
Other Hong Kong Report 1998, ed. Larry Chow, et al. (Hong Kong: Chinese
University Press, 1999), 4-5.
15 Cf. Albert Chan, "Continuity and Change in the Legal System." in The
Other Hong Kong Report 1998, ibid., 44-45.
16 Cf. Frank Ching, "Are Hong Kong People Ruling Hong Kong?," 10.
More details on the electoral system can be found in Hong Kong 1998 (Hong
Kong: Informational Services Department, 1999). 8-10.
24
voters voted in the direct elections of the geographical constit-
uencies. The prodemocracy parties, i.e., the Democratic Party,
The Frontier, and the Citizens Party, together won some 65
percent of the popular votes and captured more than two-
thirds of the twenty geographical seats. The leading pro-Bei-
jing party, the Democratic Alliance for the Betterment of
Hong Kong (DAB) also ran a respectable campaign and won a
few of the geographical seats. However, the majority of seats
in the Council was won by candidates of the probusiness Lib-
eral Party and of small pro-Beijing parties, who enjoyed httle
popular support, lost in all the geographical polls, but scored
in the functional constituencies or in the 800-member Election
Committee. Although the prodemocracy parties and
independents also won a few of the functional seats, they con-
stituted only about one-third (twenty seats) of the whole
Council. The distance of the system from a representative
democracy of one person, one vote, is self-evident from the
following table. ^^
Legislative Council Election Results, 1998
Geographical
Functional
Election
Parties
Seats
Seats
Committee Seats
Citizens
1
DAB
5
2
2
Democratic
9
4
Frontier
3
Liberal
9
1
Progressive
2
3
Other Parties & Independents
2
13
4
Total
20
30
10
(Voters
1.489.705
77.813
800)
1^ Based on information from the Hong Kong Government website on the
day following the elections. May 25, 1998.
25
The election was widely perceived in Hong Kong and
abroad as a major success for the democratic process and for
the pohtical transition. ^^ It brought forth calls for a faster pace
of democratization, such as to have the whole legislature
elected by direct geographical constituencies before 2007. In
the flush of its first major electoral victory, even the pro-Bei-
jing DAB party joined in the chorus. However, Chief Execu-
tive Tung was not prepared to encourage any attempt to
change the electoral arrangements in the Basic Law. But even
he had to face the new politics when a new legislature with a
large minority of popularly-elected members replaced the Pro-
visional Legislative Council.
The first Legislative Council, whose term runs from 1998 to
2000, consists of a plethora of parties and independents. The
Democratic Party is the largest, but it has fewer than one-
quarter of the seats. On different issues, there are shifting aUi-
ances among the parties. The problem for any executive
branch, whatever its own orientation toward democracy, is
how to work with all these parties in order to govern. This
problem is compounded by the different sources of legitima-
tion and the lack of articulation between the executive branch
and the legislature.
Chief Executive Tung was "elected" by an Electoral Com-
mittee of 400 members in 1996: that committee had been, in
turn, selected and appointed by PRC officials, and enjoyed no
mass base in Hong Kong.^''' So, Tung is legitimated only by
appointment from Beijing. Since his appointment, he has not
made any attempt to build mass political support among the
IS Cf. Deborah Brown and James Robinson. "Hong Kong's 1998
Legislative Council Elections: Appraising Steps in Democracy." The Asian
American Review, 27, no. 2 (Summer 1999): 27-71; Sonny Lo and Eilo Yu,
"Election and Democracy in Hong Kong: The 1998 Legislative Council
Election," unpublished research paper. Hong Kong University, 1999.
19 Basic Law. Article 45 and Annex I. Also, the April 4. 1990. Decision of
the National People's Congress on the Method for the Formation of the First
Government and First Legislative Council of the Hong Kong Special
Administrative Region.
26
people, believing as he does in "social harmony" and
"depoliticization" of Hong Kong. In contrast, the Legislative
Council, or at least those of its members returned by the direct
geographical elections or by the larger functional constituen-
cies, claim legitimacy from popular mandate. Different
sources of legitimation mean that if any major issue of conten-
tion should arise between Hong Kong and Beijing, the Chief
Executive would be caught in the conflict. Even in strictly
Hong Kong domestic issues, he cannot claim to have as much
popular mandate as his critics on the Council.
One way to resolve the potential difficulties that could
arise from the divergent sources of legitimation is for the exec-
utive to work with the legislators in such a way that the aspira-
tions of the electorate could be brought into the policy-making
process via the elected representatives, and at the same time,
for the executive to partake of the popular mandate given to
the legislators. A variety of ways to communicate between the
executive and legislative branches could be adopted, such as
by inviting the parties in the legislature with substantial popu-
lar support to join the Executive Council. However, this has
not been done. On the contrary, apart from a few top civil
servants, the Executive Council is composed of retired former
British appointees, business leaders or pro-Beijing profession-
als, and a DAB politician who deemphasizes his party affilia-
tion. As a body, it does not reflect popular aspirations and is
insulated from the public mood and the electoral process. The
Chief Executive makes few attempts to work with the legisla-
ture in other ways. He rarely appears in the chamber to
explain or persuade, being content to have civil servants lobby
for the passage of particular bills by constructing ad hoc alli-
ances, often against the minority of legislators who enjoy
majority voter support. These legislators are thereby cast into
permanent opposition, which frustrates the popular will as well
27
as the work of the Council.^°
Tung seems to prefer to return to a style of governance
akin to that of the colonial governors in the 1960s or earher,
before there were elections, and before there were so many
different voices in society. If the elections introduced in Hong
Kong during the last decade had been only a veneer to cover
the British retreat, the polls and parties could have been
brushed aside easily, and such a return under Tung's obviously
sincere paternalism might have been possible. But given the
long history of civil society, Hongkongans cannot be remade
into the docile subjects of the 1950s. To create a government
suited to the populace, the formal and informal interface
between state and society which developed since the 1970s
needs to be strengthened rather than weakened or set aside.
Stalling democracy will make Hong Kong more difficult to
govern, not easier — especially in a period of economic diffi-
culty and restructuring.
Meanwhile, in the aftermath of the "bird flu" and other
sanitation crises, the Administration proposed in late 1998 to
reorganize local government by abolishing the two municipal
councils and redistributing their functions among the bureau-
cracy, the district boards, and the legislature. This also can be
seen as a setback for democracy, although, so far, it has not
elicited very much response from society. However, the par-
ties already are gearing up for the district board and Legisla-
tive Council elections to be held in late 1999 and 2000,
respectively. The arrangements for the legislative elections
will be broadly similar to 1998. but according to the Basic Law,
there will be twenty-four geographical seats and only six Elec-
tion Committee seats. This will be a small constitutional
advance for democracy, and if the process remains fair and
open as in 1998 (there is little reason to think otherwise), the
popular element in the legislature may well increase slightly.
20 Cf. Michael DeGolyer, "The Civil Service," in The Other Hong Kong
Report 1998, 73-114.
28
And if the executive branch continues to fail to communicate
with the legislature, the systemic poHtical difficulties will be
further compounded.
Freedom and Human Rights, 1997-99
Just as with democracy, civil liberties and human rights
have been tested by the handover, but have remained ahve
and strong.
In April 1997, the office of the Chief Executive-designate
issued a consultation document on Civil Liberties and Social
Order which suggested a number of ways in which the rights of
association and public demonstration ought to be restricted,
including for reasons of "national security." The document
was widely criticized. After a period of consultation, the pro-
posals were toned down.
So, when the Provisional Legislative Council proceeded to
undo the liberalization undertaken earher in the 1990s on the
rights of assembly and association, the rollback was less than
people's worst fears. The resultant Societies Ordinance
requires any association to be registered with the pohce, and
gives the police the right to refuse registration on grounds of
"national security," which remains undefined. But so far,
there has not been any perceptible change in practice. Organi-
zations critical of the Hong Kong SAR and the PRC Govern-
ments, such as groups formed to support the Tiananmen
movement, continue to exist and have not been banned. Simi-
larly, the Public Order Ordinance requires organizers of public
rallies to seek a "notice of no objection" from the police,
which again could be refused on grounds of "national secur-
ity." But there does not seem to have been significant practi-
cal changes, with the police largely carrying on as before the
handover, except when security tightened around visiting PRC
dignitaries. For instance, on handover night, the police
drowned out protests against Prime Minister Li Peng by play-
29
ing Beethoven on loudspeakers, but otherwise did not prevent
the demonstrations. There continue to be numerous demon-
strations, averaging three to four per day. including rallies of
several tens of thousands like the annual June Fourth com-
memorations of the loss of life during the Tiananmen massa-
cre, or smaller ones like the protest outside the New China
News Agency against the suppression of Falun Gong in August
1999.21
An overview of legislation shows a general trend of hberal-
ization of civil rights from the early 1990s through June 1997,
then a number of reversals under the Provisional Legislative
Council. The effect of the restored legal restrictions on civil
liberties is to give wider discretionary powers to the police,
which could be invoked to control popular associations or
demonstrations if the Government decided it were necessary
to do so. If the pubHc opposition to the April 1997 consulta-
tion document had not been so loud, the rollback could have
been more serious. But the intention to contain and restrict
freedom of expression certainly is present, partly arising from
Beijing's fear of Hong Kong as a "base of subversion" against
the Chinese Communist Party, and partly from Chief Execu-
tive Tung's own predilections."
The Tung Administration's inchnation to restrict freedom
of expression is perhaps best symbolized by the changes made
to the square on Lower Albert Road. From the 1970s until the
handover, this open square between the buildings of the Cen-
tral Government Offices was a favorite area for demonstra-
tions, where the organizers could address a mass rally before a
small delegation would walk up the short path to Government
House to deliver its petition at the side gate. There never were
-1 For example. South China Morning Post, June 5, 1998, 1; Ming Pao, June
5. 1998, Al: South China Morning Post. June 5, 1999, 1: Ming Pao. June 5. 1999.
Al: South China Morning Post, July 29, 1999, 3. Cf. Christine Loh. "Human
Rights in the First Year," in The Other Hong Kong Report 1998, 51-54; Albert
Chan, "Continuity and Change." 32-35.
22 Cf. Kenneth Leung. "How Free is the Press of Hong Kong: 1997 and
After?" in The Other Hong Kong Report 1998. 115-137.
30
any serious incidents. When Tung decided not to move into
Government House and to work in the Central Government
Offices instead, the buildings were renamed Government
Headquarters, and the state emblem of the PRC replaced the
colonial coat of arms on the main awning, while a smaller SAR
emblem was affixed in a less prominent position, and, a nine-
foot-high iron fence was built around the square. While dem-
onstrations continue to be allowed on the now-enclosed
square, the silent message is loud and clear.
In other areas of expression, attempts to restrict freedom
also have met with strong opposition from the people. Almost
immediately after the handover, David Chu, a pro-Beijing bus-
inessman and politician with a Harvard MBA, wrote to the
presidents of two universities asking them to discipline some
foreign professors who published newspaper articles critical of
the PRC Government. This produced an immediate outcry
both in Hong Kong and abroad. Chu apologized for the word-
ing of his letters.^^
In March 1998, Xu Simin, a pro-Beijing publisher in Hong
Kong and a member of the Chinese People's Political Consult-
ative Conference, spoke in a session of the Conference in Bei-
jing against Radio-Television Hong Kong (RTHK). He
believed that RTHK, as a public broadcaster funded by the
Hong Kong SAR Government, should act as a mouthpiece of
the SAR and PRC Governments, and should not be allowed to
criticize them. This again produced a huge uproar, since
RTHK has maintained its editorial independence for many
years, and has been seen as the most important member of the
not-for-profit mass media, where all kinds of opinion can be
aired. Xu's remarks, made within an august organ of the PRC
state, was seen as an attack not only on RTHK and freedom of
speech and of the press in Hong Kong, but also as a request for
Beijing to restrict such freedoms in Hong Kong. The objec-
tions to Xu's remarks became louder when Chief Executive
23 Chronicles of Higher Education, July 15, 1997.
31
Tung spoke in ambivalent terms which seemed to condone Xu.
The pubhc was assuaged only when Chief Secretary Anson
Chan vehemently criticized Xu and defended RTHK's edito-
rial independence, and when President Jiang Zemin told Hong
Kong members of the PRC national organs not to interfere in
Hong Kong's domestic affairs. This last episode was one of the
instances when Beijing reiterated the "one country, two sys-
tems" policy and its public avowal for "Hong Kong people to
rule Hong Kong."-'^
The RTHK saga reoccupied center stage during the sum-
mer of 1999 when Cheng An-kuo. the quasi-official represen-
tative of Taiwan in Hong Kong, was invited by RTHK to speak
on "Letter to Hong Kong," a popular current affairs radio pro-
gram, and took the opportunity to explain President Lee Teng-
hui's thesis of "special state-to-state relations." This led to
cries of outrage from the pro-Beijing forces in Hong Kong,
while RTHK stood firm and Government officials reiterated
their support of the broadcaster's editorial independence. The
transfer in October 1999 of Cheung Man-yee, RTHK's Direc-
tor of Broadcasting, to be the new head of the Hong Kong
Government office in Tokyo, has raised serious concern both
in Hong Kong and overseas. Cheung, a popular and well-
respected professional officer in the broadcast service, is seen
by the community as a bulwark for press freedom. There is
widespread public support for RTHK to maintain its practice
of freedom and diversity, and not to succumb to pressure to
become a propaganda machine. Once again, Anson Chan and
the senior civil servants are perceived to be stronger guardians
of Hong Kong's tradition of free expression than Tung.-^
In other ways, the Hong Kong SAR Government has
shown pragmatic self-restraint with regard to public expres-
2^* Cf. Christine Loh, "Human Rights in the First Year," 58; Frank Ching,
"Are Hong Kong People RuHng Hong Kong?," 18.
25 For example. South China Morning Post. July 17. 1999; Sing Too. July 29,
1999, A17; South China Morning Post, August 7, 1999, 2; and Ming Pao, August
10, 1999. A4.
32
sions which might arouse the ire of Beijing. For instance, on
October 10, 1997. ROC flags hoisted in pubhc places, such as
pedestrian foot bridges, were removed, but those displayed on
private property, although openly visible, were allowed to
remain. News reporting on Taiwan and Tibet continues very
much as before. In January 1998, two demonstrators who
defaced PRC and SAR flags were fined by a magistrate invok-
ing the PRC State Flag and State Emblem Law. one of the
mainland laws specifically enacted by the Provisional Legisla-
tive Council to apply to Hong Kong. The case is being
appealed. -^^
A highly sensitive issue is the stipulation in the Basic Law
(Article 23) that the SAR should legislate to prohibit sedition
against the state. Since sedition is not an offense known to the
common law tradition, and such legislation could have very
serious ramifications for ah kinds of civil liberties and rights in
Hong Kong, the pubhc is vigilant, and the SAR Government
has not yet tabled any biU in that regard. During the summer
of 1999, some pro-Beijing pohticians suggested that it would
be best to wait a few years, presumably with the hope that civil
society would be more subdued by that time, so that a more
stringent bill could pass through a more phant Legislative
Council.
Meanwhile, a technical issue in the wording of statutes
already has aroused grave concern. In a number of Hong
Kong ordinances enacted during the British colonial period,
the Crown was exempted from certain restrictions. After the
handover, the word "Crown" clearly was inappropriate. The
Provisional Legislative Council adopted a suggestion by the
Legal Department to substitute the word "State" for "Crown."
However, the PRC state has. and increasingly will have, many
tentacles and interests in Hong Kong, more than the British
Crown ever did or could have. To exempt them from the spe-
cific restrictions in those Hong Kong laws could rebound on
26 Cf. Christine Loh. ■Human Rights in the First Year," 60.
33
the rights and freedoms of Hongkongans. In any case, to
exempt state organs seems to contradict the provision in the
Basic Law that mainland agencies and persons in Hong Kong
have to obey Hong Kong laws. This is a difficult matter that
will have to be tested in the courts. A case in point is whether
the New China News Agency should be exempt from the pro-
visions of the Privacy Ordinance if a Hong Kong citizen should
demand to examine the files it keeps on her.-^
There are other concerns about freedom of expression on
the horizon. For a number of years, fierce competition for
market share among newspapers and other mass media
resulted in often intrusive and unethical news gathering by
reporters as well as paparazzi. Community unhappiness on
this matter is substantial. However, a Law Reform Commis-
sion report in the summer of 1999 advocating a statutory press
council to enforce ethical standards has prompted serious con-
cerns about the specter of censorship. Media professionals
propose instead other more autonomous approaches to profes-
sional ethics. While the debate continues, the transfer of
Cheung Man-yee cannot but exacerbate fears about the inten-
tions of the Tung Administration.
Fierce competition among television stations has brought
another kind of threat. In October 1999. Asia Television
(ATV) the smaller of the commercial broadcasters, revamped
its news programming by assigning two entertainers as news
anchors and replacing serious news stories with tabloid items.
This is widely perceived as not only a commercial gimmick, but
also a further step along the path of "self-censorship" taken by
the owners and management of the station, which recently
came to include a number of prominent mainlanders.
Meanwhile, the PRC authorities across the border have
shown their displeasure at a number of Hong Kong elected
representatives by denying them access to the mainland.
These included councilors and district board members belong-
27 Cf. Albert Chan. "Continuity and Change," 37.
34
ing to the Democratic Party of Hong Kong, and the pro-
democracy but independent Margaret Ng, who represents the
legal constituency in the Legislative Council. While there is
widespread public support for these Hongkongans' right to
visit the mainland. Tung is evidently less sympathetic. This is
seen by many as a signal for people to be less vocal in their
advocacy for freedom, democracy, and human rights, and in
their criticism of Beijing.
The single largest issue of human rights since 1997 had to
do with the judiciary. The Basic Law includes within the defi-
nition of a Hong Kong permanent resident any child born of a
Hong Kong permanent resident whether in Hong Kong or
outside. ^^ For decades, it was difficult for the mainland chil-
dren of Hong Kong residents to join their parents in Hong
Kong, because Beijing did not allow the pre-1997 Hong Kong
Government to process applications for immigration from the
mainland. Rather, the local public security bureaus in China
issued one-way exit permits, and there was a good deal of cor-
ruption and red tape involved. In anticipation of the
handover, a number of parents had their children smuggled
into Hong Kong, and in early July 1997, demanded the right of
abode for their children. The Provisional Legislative Council
meanwhile passed a law requiring such children to be sent
back to the mainland to apply for an exit permit from their
locality as well as a certificate of entitlement from the Hong
Kong Immigration Department. The two documents must be
affixed together to be valid. The lawsuits went through the
Court of First Instance, the Court of Appeal, and the Court of
Final Appeal. The Court of Final Appeal ruled unanimously
in January 1999 in favor of the children on the basis of their
unequivocal right of abode in the Basic Law and the human
right of family reunion. It also struck down as unreasonable
28 The controversy and its background are discussed in detail in B. Luk,
"Hong Kong and the Mainland — Citizenship and Right of Abode Issues."
unpublished presentation at the Workshop on Hong Kong Post -Transit ion Issues,
University of British Columbia, March 13. 1999.
35
and unconstitutional the ordinance requiring that two docu-
ments be affixed together. This decision raised a major consti-
tutional crisis between the executive branch and the judiciary
as well as between the SAR Court of Final Appeal in Hong
Kong and the National People's Congress Subcommittee on
the Basic Law in Beijing. The Subcommittee, following a sug-
gestion from the Tung Administration, reimposed restrictions
on the mainland children of parents in Hong Kong.
In spite of this setback for the judiciary, much remains to
be done by the courts. Although the National People's Con-
gress Standing Committee refused adoption of provisions in
the Bill of Rights Ordinance which overrode other Hong Kong
statutes, the Basic Law itself contains an enumeration of civil
rights. So it will still be up to the courts to test past and future
legislation and Government acts.
Long-Term Prospects
Two years and a few months is not a long enough time for
Hong Kong's pohtical transition to play out. Civil society is
alive and well and growing in Hong Kong. But unlike the
1970s and 1980s when the state and civil society grew together
in creative tension, the post-1997 Administration appears to be
preparing to restrict and turn back civil society. What will
happen with this clash of wills remains an open question.
Much will depend on the values and ideas of the younger gen-
eration of Hongkongans as they mature. Already, there are
efforts by certain pohcy makers in the education field to
require the PRC flag to be raised in Hong Kong schools,
although the UK flag almost never was flown; however, there
is little public sentiment in support of such political rituals in
Hong Kong. Also, all the Chinese history textbooks for high
school use were changed immediately after the handover to
reflect Beijing's current point of view, especially with regard to
the development of the mainland, Taiwan, and Hong Kong in
36
the last fifty years. How these and other pedagogical changes
will be received remains to be seen.
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