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May 1998 



Occasional Paper No 80 



From the "Through Train" to 
"Setting Up the New Stove" 

Sino-British Row Over the Election 
of the Hong Kong Legislature 



Lau Siu-kai 




Hong Kong Institute of Asia-Pacific Studies 

The Chinese University of Hong Kong 
Shatin, New Territories 
Hong Kong 



ada-Hong Kong Resourc 

CrtKfrii Km I 1 1 ■ Toron: i 

Gift from 



HK Institute of Asia Pacific Studies 
Chinese University of Hong Kong 



Digitized by the Internet Archive 

in 2010 with funding from 

Multicultural Canada; University of Toronto Libraries 



http://www.archive.org/details/fromthroughtrainOOIiuz 



From the "Through Train" to 
"Setting Up the New Stove" 

Sino-British Row Over the Election of the 
Hong Kong Legislature 



Lau Siu-kai 



%&*.%*• 



da-Hong Kong Resource 

r.» Crescent. Km 1 1 I • Toronto 



Hong Kong Institute of Asia-Pacific Studies 

The Chinese University of Hong Kong 

Shatin, New Territories 

Hong Kong 



About the author 

Lau Siu-kai is a graduate of the University of Hong Kong (B.Soc.Sc. 
1971) and the University of Minnesota (Ph.D. 1975). He began his 
teaching career at The Chinese University of Hong Kong in 1975 
and is currently Professor of Sociology and Chairman of the De- 
partment of Sociology. In addition, he is Associate Director of the 
Chinese University's Hong Kong Institute of Asia-Pacific Studies. 
In 1993-1995, he was a member of the Preliminary Working Com- 
mittee of the Hong Kong Special Administrative Region (HKSAR). 
In 1996-1997, he was a member of the Preparatory Committee of 
HKSAR, as well as a co-convenor of its Subgroup on the Electoral 
Methods for the First Legislative Council of the HKSAR. He spe- 
cializes in Hong Kong's social and political development. Among 
his publications are Society and Politics in Hong Kong (1982) and The 
Ethos of the Hong Kong Chinese (co-authored with Kuan Hsin-chi, 
1988). 



Opinions expressed in the publications of the Hong Kong Institute of Asia-Pacific 
Studies are the authors'. They do not necessarily reflect those of the Institute. 



© Lau Siu-kai 1998 
ISBN 962-441-080-1 

All rights reserved. No part of this book may be reproduced in any form without 
written permission from the author. 



From the "Through Train" to 
"Setting Up the New Stove" 

Sino-British Row Over the Election of the 
Hong Kong Legislature 



In Annex I of the Sino-British Joint Declaration, which spells out 
the basic policies of the Chinese government regarding Hong 
Kong, there is this seemingly innocuous sentence: "The legislature 
of the Hong Kong Special Administrative Region shall be consti- 
tuted by elections." Even though no specific electoral methods 
have been prescribed, observers in 1984 — when the Joint Decla- 
ration was signed — tended to believe that there should be some 
sort of Sino-British consensus on the matter. But, events after- 
wards proved otherwise. Leaked information from both British 
and Chinese sources seems to confirm that this short sentence was 
inserted at the very last moment of Sino-British negotiation over 
Hong Kong's political future. Some Chinese officials confided to 
me that they even had no idea that "elections" meant popular 
elections. They further pointed out that the Chinese government 
back then had explicitly indicated to the British side that China 
was against the introduction of popular elections of any kind into 
Hong Kong. Furthermore, elections should be introduced into 
Hong Kong only by China and after the restoration of Chinese 
sovereignty over Hong Kong. Apparently, China's understanding 
of this sentence differed drastically from Britain's. Nevertheless, 
since 1984 Britain had taken this sentence to mean that Britain was 
empowered to introduce elective elements into Hong Kong's 
legislature phase by phase, despite its awareness of China's strong 
opposition. In retrospect, the failure of Britain and China to reach 
an understanding on the elections of the legislature proved to be 
fatal, for it led eventually to the breakdown of Sino-British cooper- 



2 From the "Through Train" to "Setting Up the New Stove" 

ation, not only on matters of political reform, but also on almost 
all important matter in relation to regime transition. 

Sino-British Struggle Over 
Legislative Electoral Systems 

Even before the Joint Declaration was officially signed, Britain 
proposed unilaterally a package of reform of the Legislative 
Council in a Green Paper in 1984, which would be implemented 
step-by-step during the transitional period. 2 The main aim of the 
reforms smacked of development into "self-government." The 
path of constitutional development as suggested in the Green 
Paper was reminiscent of the "theory of preparation" for the West- 
minster model, which involved the aggrandizement of the legisla- 
ture as the centre of power and the source of legitimacy for other 
institutions, including possibly even the Governor of Hong Kong. 3 

How determined Britain was on carrying out these proposals 
is difficult to gauge even in retrospect. In any event, most proba- 
bly because of ferocious opposition by China and British appre- 
hension about the loss of political control and political instability 
before departure, Britain suddenly underwent an abrupt turn- 
about. In the White Paper, 4 issued several months later, Britain 
undertook a strategic retreat in its political reform "offensive." 
While some concessions were made to the democratic activists, 
the determination to institute medium- and long-term reforms 
effectively evaporated. Aside from introducing 24 indirectly 
elected unofficial members to the Legislative Council (divided 
equally between the electoral college and the functional constitu- 
encies), which had a membership of 56 (not including the Gover- 
nor as the President of the Legislative Council), no definite 
promise was made as to future reforms. The enthusiasm for direct 
election was dampened. No plan was afoot to expand signifi- 
cantly the role of the legislature in the political system. 

Shortly before the implementation of the proposals of the 
White Paper in 1985, measures were taken by China to take over 



From the 'Through Train" to "Setting Up the New Stove" 



the initiative in shaping the electoral system for the legislature. 
There was a two-pronged approach. On the one hand, China 
made explicit its objection to any attempt by Britain to turn the 
legislature into a centre of power and subordinate all other politi- 
cal and administrative institutions to it. Britain was asked to aban- 
don any plan for further reforms until China's design for the 
legislative electoral system was made known, or unless they facil- 
itated the "convergence" between the present and future systems, 
and only if they were endorsed by China. On the other hand, 
China immediately went into the drafting of the Basic Law — the 
future constitution of Hong Kong, which would be promulgated 
in 1990 and applied to the territory in 1997. 

China's strategic offensive to pre-empt the initiative of politi- 
cal reform landed Britain into a serious dilemma. To conform to 
China's intentions would erode the credibility of the Hong Kong 
government. To do otherwise would run the risks of antagonizing 
China and having the reforms dismantled after 1997. Conflictual 
relationship with China would also undermine Hong Kong's sta- 
bility and rendered colonial rule in its last days all the more 
difficult and place long-term British interests in the territory in 
jeopardy. Eventually, Britain decided to resolve its dilemma by 
appeasing China. 

Even before 1987, the year scheduled by the Hong Kong gov- 
ernment to review the progress of political reforms, and possibly 
initiate further reforms, it seemed that Britain was prepared, 
willy-nilly, to grant China an influential or even decisive role in 
the planning of political reform in Hong Kong. First of all, Timo- 
thy Renton, the British Foreign Office minister responsible for 
Hong Kong, disassociated Britain from political reform in Hong 
Kong, claiming that it was a matter for the government and the 
people there. 5 Then the issue of political reform became a topic to 
be discussed regularly by the British and Chinese governments 
through the Joint Liaison Group created by the Joint Declaration. 6 
This was commonly interpreted to be a victory for China. Later, 
the Hong Kong government hinted that China would be con- 
sulted on future reforms. 7 Finally, when he was on an official trip 



From the "Through Train" to "Setting Up the New Stove" 



to China, Renton asserted that the recently introduced political 
reforms in Hong Kong needed time to settle down and empha- 
sized the need for convergence between the political system 
evolving in Hong Kong and the system to be laid down in the 
Basic Law. Renton's conciliatory position tended to indicate that 
China had more or less veto power over Hong Kong's pre-1997 
political development. 

The strategic retreat by Britain was on full display in the White 
Paper issued by the Hong Kong government in February 1988. 9 
The government rejected the demand of the pro-democratic 
groups to introduce a number of directly elected members into the 
Legislative Council in 1988, the reason cited being "that opinions 
in the community on this issue are so clearly divided." 10 This 
reason however was only supported by evidence which was 
widely seen to have been fabricated and distorted by the govern- 
ment. Instead, the government decided to delay the introduction 
of 10 directly elected members to 1991. In order to mollify its 
critics, the government increased the number of indirectly elected 
members in the 1988 Legislative Council to 26 (14 elected by 
functional constituencies and 12 by the electoral college). 

The White Paper was interpreted at the time of its issuance as 
the last attempt by the departing colonial regime to propose and 
introduce political reform in Hong Kong. Absent from the White 
Paper was any mention of the direction and programme of future 
institutional development, thereby rendering it primarily as a 
one-shot attempt at tinkering with the system. 

Thus, by 1988 the principle of convergence regarding the leg- 
islative electoral system was firmly established. And, it was justi- 
fied in the name of smooth transition. 11 The extolment of the idea 
of convergence of Hong Kong's political system with the Basic 
Law by Britain in effect meant that it had virtually surrendered 
the initiative on political reform to China. 

When the drafting of the Basic Law entered into the final 
stage, the Tiananmen Incident in Beijing erupted in the spring of 
1989. The distraught Hong Kong people demanded a speeding-up 
of the pace of democratization. Even then, the principle of conver- 



From the "Through Train" to "Setting Up the New Stove" 



gence was still the centrepiece of British approach to political 
reform. Britain continued to seek compromise and agreement 
with China while at the same time trying to put pressure on China 
to grant more directly elected seats in the legislature. In view of 
the intense public antipathy against the Chinese government in 
Hong Kong, the latter was willing to give way to popular de- 
mands, but only in a limited manner, for Hong Kong people's 
reaction to the Tiananmen Incident and their sympathy with the 
Beijing demonstrators had convinced the Chinese leaders that 
Hong Kong could be a political threat. As a result of Sino-British 
compromise, in 1991 the number of directly elected seats in the 
Legislative Council was increased to 18, and the total membership 
of the legislature was enlarged to 60. In addition, through secret 
negotiation in early 1990, the two governments were able to agree 
upon the electoral system for the 1995 Legislative Council elec- 
tion. 1 ' Britain and China also agreed that the legislature elected in 
1995 should have 60 members, among whom 20 would be directly 
elected, 30 elected by functional constituencies and 10 chosen by 
an electoral college. China in addition agreed to allow that legisla- 
ture to straddle 1997 to ensure a smooth transition of the political 
system. Accordingly, a "through train" arrangement for the 
legislature was made through Sino-British joint efforts. 

The "through train" arrangement was subsequently en- 
shrined in a decision of the National People's Congress, the high- 
est power organ of China. It is contained in paragraph 6 of 
"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": "The 
first Legislative Council of the Hong Kong Special Administrative 
Region shall be composed of 60 members, with 20 members re- 
turned by geographical constituencies through direct elections, 10 
members returned by an election committee, and 30 members 
returned by functional constituencies. If the composition of the 
last Hong Kong Legislative Council before the establishment of 
the Hong Kong Special Administrative Region is in conformity 
with the relevant provisions of this Decision and the Basic Law of 



From the "Through Train" to "Setting Up the New Stove" 



the Hong Kong Special Administrative Region, those of its mem- 
bers who uphold the Basic Law of the Hong Kong Special Admin- 
istrative Region of the People's Republic of China and pledge 
allegiance to the Hong Kong Special Administrative Region of the 
People's Republic of China, and who meet the requirements set 
forth in the Basic Law of the Region may, upon confirmation by 
the Preparatory Committee, become members of the first Legisla- 
tive Council of the Region." It is however noteworthy that a 
condition was attached to the "through train." It was that the 
electoral methods used in the 1995 Legislative Council election 
should be those agreed upon by the British and Chinese govern- 
ments through their secret negotiation. This "escape clause" 
proved eventually to be momentous to the de-railing of the 
"through train." 

After John Major took over the Prime Ministership from Mar- 
garet Thatcher, there was a turn-around in British policy toward 
China and Hong Kong. The replacement of David Wilson by 
Chris Patten as the Governor of Hong Kong presaged the adop- 
tion of a hard-line stance toward democratic reform of the Legisla- 
tive Council, to the extent of denying any agreements Britain had 
signed with China. 13 As announced by Patten in October 1992, 14 
the reform of the legislative electoral system included inter alia: (1) 
The reduction of the voting age from 21 to 18. (2) The introduction 
of nine new functional constituencies designed in such a way as to 
include the entire working population. As such the nature of 
functional election was transmogrified from election within the 
elites to popular election. (3) The composition of the Election 
Committee, which would elect 10 members to the Legislative 
Council in 1995, was also conceived in a manner different from 
what was envisaged by the drafters of the Basic Law. The Election 
Committee would include all or most members from the directly- 
elected District Boards. Thus constituted, election by means of the 
Election Committee would become a disguised form of popular 
election. 

Together with the 20 directly elected seats and the 21 "old" 
functional constituencies seats, the Legislative Council after the 



From the 'Through Train" to "Setting Up the New Stove" 



1995 elections would be a completely elected body with 60 mem- 
bers. 

The primary objective of the reforms of the electoral system 
harked back to the goal of the 1984 Green Paper, which was to build 
up the elected legislature as the keystone of the political system 
and the embodiment of political autonomy in Hong Kong after 
1997. Thus, the reforms were not as innocuous as Britain pre- 
tended them to be. As noted by an astute observer, "[considered 
as a whole, the Patten reforms are actually far from modest. They 
emerge instead as a concerted eleventh hour attempt to promote 
the cause of autonomous self-government and Western-style di- 
rect democracy for Hong Kong by introducing a comprehensive 
set of adjustments throughout the system." 1 

The initial reactions of China to the new British "offensive" 
were disorganized and confused. Gradually, China recovered its 
poise and went on the offensive. The violent stance of China even 
surprised Britain, who expected the Chinese government, im- 
mersed in internal and external crises, to succumb, however reluc- 
tantly, to British determination. China mobilized all the economic 
and political pressures at its disposal against Britain. To Britain, 
the political and economic price of Patten's reforms became in- 
creasingly unbearable. Nevertheless, because Britain had over- 
committed British prestige and honour to the Patten reform, it was 
difficult for it to take an abrupt retreat without incurring huge 
political costs. Britain thus attempted to settle the matter with 
China through mutual concessions. Even before Patten's reforms 
were implemented, Britain had already shown a willingness to 
talk with China on the matter. However, the differences of views 
between the two countries were so wide, and the mutual trust 
between them so low, that eventually the talk broke down. 16 Sub- 
sequently, Britain implemented Patten's proposals in the 1995 
Legislative Council election. 

Apparently not sanguine about the results of the talk, China, 
ignoring vociferous opposition by Britain, set up the Preliminary 
Working Committee (PWC) in 1993 to devise the electoral ar- 
rangements for the first legislature after 1997 only several months 



From the "Through Train" to "Setting Up the New Stove" 



after Sino-British talk had started. One of the responsibilities of the 
PWC was to recommend to the Preparatory Committee for the 
establishment of the Hong Kong Special Administrative Region 
(HKSAR) the specific method for forming the first Legislative 
Council of the HKSAR. As soon as the talk between the two 
governments broke down, the PWC pushed full steam ahead to 
study the matter. The Preparatory Committee was established in 
January 1996. In November 1996, it set up a Subgroup on the 
Electoral Methods for the First Legislative Council. 

According to the decisions of the Preparatory Committee, the 
electoral system of the legislature designed by Britain would be 
totally dismantled in 1997. Legislators elected in 1995 would not 
be allowed to straddle 1997. As such the "through train" arrange- 
ment, previously agreed to by Britain and China after extremely 
difficult negotiations, was dead. A new legislative election would 
be held in the first half of 1998 based on the electoral system 
decided by the Preparatory Committee. Before the election of the 
first HKSAR legislature, a provisional legislature was elected on 
21 December 1996 to prevent the existence of a legislative void. 1 
In China's colourful jargon, this series of measures represented 
the "setting up of the new stove." 

The electoral methods for the first legislature of the HKSAR 
have a number of principal features. For the 20 directly elected 
seats, either the "multiple-seat, one vote" (multiple-member con- 
stituencies) system or a form of proportional representation sys- 
tem would be adopted. The "first-past-the-post" system 
("one-seat, one vote" or single-member constituencies) used in the 
1995 system was discarded. Either the "multiple-seat, one vote" 
system or the proportional representation system will presumably 
increase the probability for smaller political parties or indepen- 
dents to win seats in the direct election. 

In the 1998 election of the first legislature of the HKSAR, the 
nine new functional constituencies created by the Patten reform 
would be eliminated. In their place would be nine new functional 
constituencies established in the spirit of the original "old" func- 
tional constituencies (with a total of 21 seats). Therefore, the pop- 



From the "Through Train" to "Setting Up the New Stove" 



ulist elements contained in Patten's reforms will be removed from 
functional constituencies elections. 

The composition of the Election Committee, which would 
elect 10 members, would conform with the principles agreed 
upon by Britain and China in their secret negotiations in early 
1990, and Patten's conception of the Election Committee would be 
abandoned. The Election Committee would consist of four catego- 
ries of members: (1) industrial, commercial and financial sectors 
(25 per cent); (2) the professions (25 per cent); (3) labour, grass- 
roots, religious and other sectors (25 per cent); and (4) former 
political figures, Hong Kong deputies to the National People's 
Congress, and representatives of Hong Kong members of the 
National Committee of the Chinese People's Political Consultative 
Conference (25 per cent). 

Altogether, the electoral system to be used in the 1998 Legisla- 
tive Council election would produce a legislature tilted in favour 
of the conservative business and professional interests. 

Furthermore, in the 1998 legislative election, Article 67 of the 
Basic Law would apply, which stipulates that "permanent resi- 
dents of the [Hong Kong Special Administrative] Region who are 
not of Chinese nationality or who have the right of abode in 
foreign countries may also be elected members of the Legislative 
Council of the Region, provided that the proportion of such mem- 
bers does not exceed 20 per cent of the total membership of the 
Council." 

The election in 1998 would be an open one. No one would be 
banned from contesting the election because of political reasons. 
In other words, there would be no political vetting of the partici- 
pants in the election to determine their candidacy. 

Similarities and Differences in British and 
Chinese Approaches 

Despite the row between Britain and China over the method of 
formation of the Legislative Council and the eventual breakdown 



10 From the "Through Train" to "Setting Up the New Stove" 



of cooperation on the matter, it is definitely not true that the two 
of them took widely divergent and, hence, unbridgeable ap- 
proaches toward the electoral system for the legislative. As a 
matter of fact, behind their differences we can detect some similar- 
ities in their electoral designs for the Legislative Council. 

In the first place, both Britain and China displayed a positive 
attitude toward electoral reform. On the part of Britain, electoral 
reform served several important political purposes. Firstly, by 
coupling electoral reform with the Sino-British Joint Declaration 
(which surrendered Hong Kong to a communist regime), the Brit- 
ish government intended to make it easier for the British Parlia- 
ment and the British people to accept the latter. The British 
government could then convince the Parliament and the people in 
Britain that the Hong Kong people would be given the necessary 
political power to protect themselves against the Chinese govern- 
ment after the change of sovereignty over Hong Kong. Secondly, 
electoral reform was supposed to fulfil Britain's moral and politi- 
cal responsibility to its colonial subjects. The establishment of a 
representative government in Hong Kong was part and parcel of 
the process of exit with glory from the territory. To exit with glory 
was the motif of decolonization a la Britain. Finally, electoral re- 
form of the legislature was construed as a way to garner political 
support for the departing regime from the people of Hong Kong. 
Through a voluntary sharing of power with the colonial subjects, 
Britain hoped to slow down the pace of decline of authority of a 
government whose days were numbered. 

On the part of China, after initial resistance to political reform 
of any kind, a reluctant willingness to tolerate a degree of democ- 
ratization in Hong Kong came about. China's change of attitude 
was the result of popular pressure by the Hong Kong people, a 
realization that public confidence in Hong Kong's future would 
increase if the people were granted some political influence, an 
inability and reluctance to roll back all the reforms introduced by 
Britain, and an increasing awareness that to implement the formu- 
lae of "Hong Kong people ruling Hong Kong" and "a high degree 



From the "Through Train" to "Setting Up the New Stove" 1 1 



of autonomy" entailed some form of transfer of power to the 
Hong Kong people. 

Therefore, after a short period of wrangling over the need for 
electoral reform of the legislature by Britain and China in the 
mid-1980s, both of them eventually agreed that it was inevitable 
that a degree of democratization was inevitable in Hong Kong. 

Secondly, both Britain and China took a very prudent ap- 
proach toward electoral reform of the legislature. Undeniably 
Britain, in the first Green Paper on political reform issued in 1984, 
intended to complete the process of making a fully popularly 
elected legislature as the kingpin of Hong Kong's political system, 
but it reversed itself in no time. China preferred a gradualist 
approach almost right from the very beginning. Even though the 
time frames of the two governments were never the same, eventu- 
ally the distance between them had shortened to such an extent 
that both of them could endorse the principle of "convergence." 
The distance between the two time frames suddenly widened 
after 1992, with Britain trying to speed up the process of democra- 
tization in Hong Kong and with China having more reservations 
about the process in the aftermath of the Tiananmen Incident. 
Even so, Britain's approach was still, by and large, one of in- 
crementalism rather than that of radical transformation. 

Thirdly, Britain and China were strikingly similar in their 
insistence on the executive-led government and restricting re- 
forms only within the legislative institution. Both of them had no 
plan to democratize the executive branch of the government. Even 
though they required the executive to be responsible to the legisla- 
ture (the term "responsible" however meant different things to 
the two governments), they had absolutely no intention to allow 
the government of Hong Kong to be produced by the legislature. 
Instead, either the Governor or the Chief Executive of Hong Kong 
was independently produced. As it was only the legislature that 
was the subject of political reform, and in view of the fact that the 
legislature was basically a powerless and reactive body, Hong 
Kong's democratization can only be described as partial in nature. 



1 2 From the "Through Train" to "Setting Up the New Stove" 



Fourthly, both Britain and China had no intention to enlarge 
significantly the powers of the legislature constitutionally. Admit- 
tedly, the enactment of the Legislative Council (Powers and Privi- 
leges) Ordinance in 1985 did enhance the investigative capacity of 
the legislature, but the government always had the means to 
escape meaningful investigation. Needless to say, the expansion 
of the elective elements in the legislature did increase the political 
status and influence of the body, but it still lacked the power to 
make and un-make governments, to propose and formulate poli- 
cies, or to play a significant role in the appointment or dismissal of 
top officials. 

Finally, Britain also shared with China an anti-political party 
bias, though of course to a lesser degree. Both governments real- 
ized that the appearance of political parties was inevitable when- 
ever there were elections, particularly popular elections. They 
nevertheless did not want to see the domination of the legislature 
by a powerful political party, which then could use the veto pow- 
ers at the legislature's disposal to "blackmail" the executive or to 
bring about stalemate between the executive and legislative 
branches. Both governments, in devising the electoral arrange- 
ments for the legislature, strove to prevent such scenarios from 
taking place. 

These similarities between Britain and China, however, had 
failed to bring about close cooperation between them on the elec- 
toral system for the legislature. The primary difference between 
them, which eventually led to the breakdown in cooperation, lay 
in the difference in their views as to which should be the major 
political forces in the elected legislature. In fact, in designing the 
legislative electoral arrangements, both Britain and China were 
concerned about who would benefit from the electoral system and 
who would not. Naturally, there had never been consensus be- 
tween Britain and China as to who should replace the legislators 
previously appointed by the colonial regime. 

Initially, between the mid-1980s and 1992, despite differences 
of view, both Britain and China had similar preference for the 
politically moderate or conservative politicians, particularly the 



From the "Through Train" to "Setting Up the New Stove" 13 



businessmen and the professionals employed in the private sec- 
tor. Even though direct elections would unavoidably bring the 
"radicals" and "populists" into the legislature, both governments 
intended to leave them only in a minority position. Naturally, 
Britain would have liked to see these moderates and conservatives 
who were also supportive of its position dominating the legisla- 
ture, whereas China would have liked to have China-sympathiz- 
ers in command. Still, the gap between the two was narrow. 

This common position between Britain and China explained 
the ease with which China accepted the idea of functional constit- 
uencies election, which was originally proposed by the Hong 
Kong government in 1984 and was subsequently recommended to 
China. The definition of functional constituencies election was 
very clear in the government's policy papers. In 1984, the meaning 
of functional constituencies was spelled out explicitly: 

The main guidelines which have been applied in deter- 
mining the composition of these functional constituen- 
cies and eligibility to vote in them are as follows: (a) In 
the case of economic and social constituencies, these 
will be based on well-recognized major organizations, 
associations, and institutions with a territory-wide cov- 
erage. The lists of the voting members of these organi- 
zations will be adopted as the electoral rolls for these 
constituencies. Corporate members will nominate rep- 
resentatives to vote on their behalf, (b) In the case of 
professional constituencies, these will be based on 
membership of those professions with well-established 
and recognized qualifications. The electoral rolls for 
these constituencies will be based on either the mem- 
bership lists of the various major professional bodies 
and institutions or on the statutory registers of mem- 
bers of those professions. 18 

The 1988 White Paper further spelled out the guidelines 
whereby functional constituencies were to be delineated: "(a) 
[Functional constituencies should be substantial and of import- 
ance in the community; (b) any new constituency should be 
clearly defined to avoid difficulties over who qualifies for inclu- 
sion and how the electorate is prescribed; (c) constituencies 



14 From the "Through Train" to "Setting Up the New Stove" 



should not be based on ideology, dogma or religion; (d) particular 
groups or bodies should not be represented in more than one 
functional constituency." 19 

Despite the clarity of the definition, still some functional con- 
stituency seats were given to political bodies (such as the two 
municipal councils and the Heung Yee Kuk [Rural Consultative 
Committee]). This could be treated as functional constituencies 
only by the wildest stretch of political imagination and could only 
be interpreted as an act of political expediency. Still, the inescap- 
able conclusion is that functional constituencies elections were 
meant to be elitist elections which placed Hong Kong's socioeco- 
nomic elites in a particularly privileged position. By doing so, 
Britain wanted to allay the elites' fear of democratization. In addi- 
tion, as direct election of some legislators could not be avoided 
and the right of all adults to vote in direct elections could not be 
denied, the inclusion in the legislature of legislators returned by 
functional constituencies elections in fact played the role of slow- 
ing down the pace of introduction of popular democracy in Hong 
Kong. 

Like Britain, China also recognized the instrumental role of 
functional constituencies election in bringing about gradualism in 
political reform in Hong Kong. Consequently, China accepted 
Britain's recommendations and included 30 seats to be returned 
by functional constituencies elections in the first legislature of the 
HKSAR, which was nine more than the number (21) in the Legis- 
lative Council election held in 1991. Under the "through train" 
agreement, the Hong Kong government was to add nine more 
functional constituencies seats in the 1995 election. However, 
Governor Patten "redefined" the newly-added functional constit- 
uencies to include the entire working population of 2.7 million. 
This was done by following the existing classification of Hong 
Kong's industrial and commercial sectors, in each of which every 
worker had a vote. 20 Accordingly, it can be said that through such 
"redefinition," nine more quasi-directly elected seats were added 
to the legislature. Britain's adoption of a radically different under- 
standing of functional constituencies as far as the nine newly- 



From the "Through Train" to "Setting Up the New Stove" 15 

added seats were concerned was seen by China as a blatant viola- 
tion of previous agreements. Britain could of course point out that 
the Basic Law had not explicitly spelled out the definition of 
functional constituencies. China however retorted that since the 
original definition of the term and its rationale had clearly been 
laid out by Britain in the first place, and there was such clear-cut 
common understanding between them as to its meaning, detailed 
definition of the term in the Basic Law had therefore been unnec- 
essary. From China's point of view, Britain's act represented a 
deliberate violation of mutual agreement and, hence, an act of bad 
faith. Patten's challenge to China to show the world in what way 
his novel redefinition of the term contradicted the Basic Law only 
rubbed salt into the wound of China and seriously impaired the 
Sino-British relationship. 

Patten's deliberate redefinition of the meaning of functional 
constituency represented an attempt to accelerate the pace of de- 
mocratization in Hong Kong, but at the same time feign to abide 
by the Basic Law and respect the principle of convergence. Behind 
this policy of confrontation was a new British view as to which 
political forces should dominate the post-1997 Legislative Coun- 
cil. Since the late 1980s, particularly after the Tiananmen Incident 
in 1989, Britain had increasingly been suspicious of Chinese inten- 
tions and promises regarding Hong Kong and had become more 
disgruntled with the conservative elites, who were seen to be too 
subservient to China and were distrusted to maintain Hong 
Kong's autonomy vis-a-vis China after the departure of Britain. 
Britain thus came to view the anti-Communist and pro-demo- 
cratic forces in Hong Kong as a more reliable and stalwart defend- 
ers of Hong Kong's interests after the change of sovereignty. 
Furthermore, the political popularity of these forces had soared in 
the aftermath of the Tiananmen Incident and they had won hand- 
somely in the direct elections to the legislature in 1991. Therefore 
Britain found it to its interest to develop a constructive relation- 
ship with them. The redefinition of functional constituency by 
Patten could thus be interpreted as the attempt by Britain to make 



16 From the "Through Train" to "Setting Up the New Stove" 



the electoral system more favourable to the democratic activists in 
Hong Kong. 

China's suspicions of British intentions were aggravated by 
Patten's proposal regarding the formation of the Election Com- 
mittee, which would elect 10 legislators in 1995. During the secret 
Sino-British negotiations in early 1990 on legislative electoral ar- 
rangements, both governments had touched upon the methods 
for the formation of the body. Even though eventually there was 
no definite agreement on the matter because of difference of 
views, both governments however saw the Election Committee as 
a body composed largely of moderate and conservative elites. In 
fact, the composition of the Election Committee proposed by Brit- 
ain was quite similar to the composition of that body as contained 
in Annex I of the Basic Law. 21 Notwithstanding differences be- 
tween Britain and China on the composition of the Election Com- 
mittee, it is important to note that in a letter to the Chinese Foreign 
Minister, Qian Qichen, the Foreign Secretary of Britain, Douglas 
Hurd, wrote that "I agree in principle with the arrangements which 
you propose for an Electoral Committee, which could be established 
in 1995 (italics added)." 

China accordingly considered that an agreement on the com- 
position of the Election Committee, which would favour the mod- 
erate and conservative elites, had been reached with Britain. Thus, 
Patten's decision to pack that body only with directly elected 
Municipal Councillors and District Board members and, by doing 
so, transforming the Election Committee into a vehicle of popular 
election, took China by complete surprise. In extreme exaspera- 
tion, China interpreted Britain's redefinition of the meanings of 
functional constituency and the Election Committee as a sinister 
plot to hand the Legislative Council over to the anti-Communist 
and populist forces of Hong Kong. In China's mind, the conse- 
quences of this would be intensified confrontation between the 
Chinese government and the Hong Kong people, strained execu- 
tive-legislative relationship after 1997, deterioration of the invest- 
ment environment in Hong Kong, increase in class conflict, and 
even transforming Hong Kong into a base of subversion of the 



From the "Through Train" to "Setting Up the New Stove" 1 7 



socialist system of China. None of these scenarios could China 
tolerate in the wake of the Tiananmen Incident and the collapse of 
communism in the Soviet Union and Eastern Europe. 

In retrospect, while both Britain and China took a prudent 
and gradualist approach to political reform in Hong Kong, it is 
easy to see that Britain suffered from few restraints and had more 
incentives to introduce democratic reform. The obsession with 
exit with glory on the one hand, and the need to maintain public 
support for a departing regime on the other explained the greater 
willingness of Britain to introduce changes into Hong Kong's 
political system. Needless to say, as the years of British rule in 
Hong Kong were numbered, Britain was not encumbered by any 
possible long-term negative consequences of the reform. China, 
however, was very much bothered by Hong Kong people's mis- 
trust of the socialist regime. It therefore was wary about any 
political reform which would arouse anti-China sentiments and 
give political channels for their expression. China's Hong Kong 
policy had an overriding goal, which was to maintain Hong 
Kong's economic vitality so that it could contribute to China's 
modernization. To accomplish this goal, the sine qua non was that 
Hong Kong's free-wheeling capitalist system should not be tam- 
pered with. In addition, Hong Kong under no circumstance 
should constitute a political threat to China. China was aware that 
the capitalist class in Hong Kong was politically highly dependent 
on China to ward off any political threat from below, and it would 
be a long time before it could be politically mobilized to fend for 
its own interests in a competitive electoral game. Furthermore, 
given China's authoritarian political system, a democratic system 
in Hong Kong where the popular forces would play a highly 
significant political role would inevitably produce the undesirable 
destabilizing demonstration effects in the mainland. With all these 
considerations in mind, it was natural to find China, as compared 
with Britain, much less enthusiastic about democratic change in 
Hong Kong. 

Before 1989, the gap between Britain and China, though sub- 
stantial, was still bridgeable under an amicable Sino-British rela- 



1 8 From the "Through Train" to "Setting Up the New Stove" 



tionship, hence the principle of convergence was accepted by both 
sides. After 1989, however, Sino-British relationship turned sour 
as a result of the anti-China united front of the Western powers in 
which Britain played an active part. Patten's reform proved to be 
the last straw, and Sino-British cooperation to ensure continuity of 
the legislature before and after 1997 collapsed despite some half- 
hearted efforts by both sides to salvage it. 



Some Consequences 

The breakdown of Sino-British cooperation and the determination 
of China to "set up the new stove" made smooth transition of the 
legislature impossible. The legislators elected in 1995 had their 
term of office terminated on 30 June 1997. The election of the First 
Legislative Council of the HKSAR was held on May 24, 1998. 
Before that, the Provisional Legislative Council was elected on 21 
December 1996 and started legislative work even before the rever- 
sion of sovereignty of Hong Kong to China. While an element of 
continuity was provided by the fact that 33 people were concur- 
rently members of the legislature under British rule and the provi- 
sional legislature of the HKSAR, in fact basically the provisional 
legislature was devoid of democratic activists and anti-China 
forces. Even though the democratic activists and anti-China forces 
did contest the election of the first legislature of the HKSAR, in 
practice they were only in the minority there. Consequently, the 
political centre of gravity in the legislatures before and after 1997 
changed abruptly in favour of the moderate, conservative and 
pro-China forces in Hong Kong. This would have serious im- 
plications in terms of continuities in public policies, mode of oper- 
ation of the political system, executive-legislative relationship, 
and the relationship between legislators and the people. Needless 
to say, the simultaneous functioning of two legislatures before the 
transfer of sovereignty, even though the laws passed by the provi- 
sional legislature could only take effect on 1 July 1997, had caused 



From the "Through Train" to "Setting Up the New Stove" 19 

political frictions not only between the two legislatures, but also 
among various political forces in society. 

Discontinuities in the legislative institution also mean that the 
democratic activists and anti-China forces, which gave an im- 
pressive performance in the 1995 legislative election and obtained 
about half the seats of the legislature, were to be in the political 
wilderness after 1 July 1997. Since direct elections of a portion of 
the legislative seats were held in 1991, these political forces have 
gained political stature and influence in society. Their sudden 
ouster from the established political institutions also means that 
the interests and views they represented were no longer incorpo- 
rated into the decision-making arena. The political discontent and 
conflict that resulted is likely to haunt Hong Kong in some years 
to come. 

The de-railing of the "through train," the setting up of the 
provisional legislature and the adoption of an electoral system in 
the 1998 legislative election which is less "democratic" than the 
one used in 1995, have led to protests from the governments of a 
number of Western nations. This series of events unavoidably 
have tarnished to a certain extent Hong Kong's international 
image. Even though China can accuse Britain of violating the 
agreements between them, China and the HKSAR government 
still face insurmountable difficulties in repelling accusations that 
they are the culprits in bringing about political retrogression in 
Hong Kong. Consequently, the ability of both the Chinese and the 
HKSAR governments to enhance Hong Kong's international rep- 
utation has become much complicated. 

The reversal of democratic development as a result of the 
breakdown of Sino-British cooperation on political reform has 
also produced a higher degree of political disillusionment and 
alienation among the Hong Kong people. Aside from possible 
sources of political discontent, such negative political sentiments 
have also hampered the efforts of the HKSAR government to 
strengthen its political legitimacy in society and to promote public 
trust in political authorities. 



20 From the "Through Train" to "Setting Up the New Stove" 



In a nutshell, the de-railing of the "through train" and China's 
decision to "set up a new stove" have left all parties concerned 
weaker and dissatisfied. Looking back, had Britain not taken the 
initiative to introduce Patten's reforms but, instead, implemented 
the Sino-British agreement forged in early 1990, Hong Kong's 
political system would still be more "democratic" than the one 
that was to be created out of China's "new stove." And, Hong 
Kong would be relieved of the political turbulence that gripped 
Hong Kong in the last years of British rule. I leave it to the histori- 
ans to pass judgement on the wisdom of the British government in 
launching an offensive against China when it was about to set sail 
from Hong Kong. 

Notes 

1. See for example Mark Roberti, The Fall of Hong Kong: China's 
Triumph and Britain's Betrayal (New York: John Wiley & Sons, 
Inc., 1994). 

2. Green Paper: The Further Development of Representative Govern- 
ment in Hong Kong (Hong Kong: Government Printer, July 
1984). 

3. B.B. Schaffer, "The Concept of Preparation: Some Questions 
About the Transfer of Systems of Government," World Poli- 
tics, Vol. 18, No. 1 (October 1965), pp. 47-48. 

4. White Paper: The Further Development of Representative Govern- 
ment in Hong Kong (Hong Kong: Government Printer, Novem- 
ber 1984). 

5. South China Morning Post {SCMP), 1 November 1985. 

6. SCMP, 30 November 1985. 

7. SCMP, 31 December 1985, and Far Eastern Economic Review, 2 
and 16 January 1986, pp. 10-11 and 37-38, respectively. 

8. Asiaweek, 2 February 1986, pp. 9-10. 

9. White Paper: The Development of Representative Government: The 
Way Fonvard (Hong Kong: Government Printer, February 
1988). 

10. Ibid., p. 9. 



From the "Through Train" to "Setting Up the New Stove" 21 



11. See Percy Cradock, Experiences of China (London: John Mur- 
ray, 1994), p. 218. 

12. See the diplomatic letters exchanged between the British and 
Chinese governments in January and February 1990. They 
were published only when China accused Britain of violating 
the secret agreement between the two countries. See SCMP, 
29 October 1992. 

13. See Lau Siu-kai, "Decolonization a la Hong Kong: Britain's 
Search for Governability and Exit with Glory," The Journal of 
Commomvealth & Comparative Politics, Vol. 35, No. 2 Quly 
1997), pp. 28-54. 

14. Chris Patten, Our Next Five Years: The Agenda for Hong Kong 
(Hong Kong: Government Printing Department, 7 October 
1992). 

15. Suzanne Pepper, "Hong Kong in 1994: Democracy, Human 
Rights, and the Post-Colonial Political Order," Asian Survey, 
Vol. 35, No. 1 (January 1995), p. 50. 

16. See the accounts issued by the two governments after the 
breakdown of the talk: Spokesman of the Ministry of Foreign 
Affairs of the People's Republic of China, Facts About a Few 
Important Aspects of Sino-British Talks on 1994/95 Electoral Ar- 
rangements in Hong Kong (Hong Kong: Joint Publishing, 28 
February 1994); and White Paper on Representative Government 
in Hong Kong (Hong Kong: Government Printing Department, 
February 1994). 

17. The Provisional Legislative Council was elected by the same 
400-member Selection Committee which elected the Chief Ex- 
ecutive on 11 December 1996. The Selection Committee was 
elected by the 150-member Preparatory Committee, which 
was in turn appointed by the Standing Committee of China's 
National People's Congress. 

18. White Paper (1984), p. 6. 

19. White Paper (1988), p. 13. 

20. The nine new functional constituencies included: primary 
production, power and construction; textiles and garments; 
manufacturing; import and export; wholesale and retail; ho- 



22 From the "Through Train" to "Setting Up the New Stove" 



tels and catering; transport and communication; financing, 
insurance, real estate and business services; and community, 
social and personal services. 
21. Annex I of the Basic Law stipulated that the Election Commit- 
tee shall be composed of 800 members from four sectors: (1) 
industrial, commercial and financial sectors (200 members); 
(2) the professions (200 members); (3) labour, social services, 
religious and other sectors (200 members); and (4) members 
of the Legislative Council, representatives of district-based 
organizations, Hong Kong deputies to the National People's 
Congress, and representatives of Hong Kong members of the 
National Committee of the Chinese People's Political Consul- 
tative Conference (200 members). In a paper handed to the 
Chinese government by Britain on 6 February 1990, the Brit- 
ish government suggested the following basis for further de- 
tailed discussion of the composition of the Election 
Committee: (1) industrial, commercial and financial sectors; 
labour, social services and religious sectors: 25 per cent; (2) 
senior political figures; including former Executive Council- 
lors, former Legislative Councillors: 25 per cent; (3) members 
of the Municipal Councils and District Boards: 25 per cent; 
and (4) representatives of Statutory and Advisory Boards and 
Committees as listed in the Hong Kong Civil and Miscella- 
neous List (only those members who are not also civil ser- 
vants): 25 per cent. 



V 



n^-Hong Kong Resour 

>seeni Km ill • Toronto. C»o^ 



From the "Through Train" to 
"Setting Up the New Stove" 

Sino-British Row Over the Election of the 
Hong Kong Legislature 



Abstract 

This paper analyses the history of the row between Britain and 
China over the way Hong Kong's legislature should be consti- 
tuted in the transitional period and after 1997. The governments of 
both countries approached the matter with different motives and 
considerations. The tortuous path of interaction between the two 
governments initially produced a fragile compromise in the form 
of a "through train" for the legislature. Cooperation however 
eventually broke down, and the two governments parted com- 
pany. Britain unilaterally imposed its electoral reforms against 
China's opposition. To counteract Britain's initiative, China re- 
sorted to "setting up the new stove" and designed single-hand- 
edly the electoral methods for the first legislature of the Hong 
Kong Special Administrative Region. Before the first legislature 
was to be elected, a provisional legislature was set up as a stopgap 
measure. The resulting discontinuity in the legislative institution 
has produced serious consequences for Hong Kong's develop- 
ment. 









(*£JB^) 






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Hong Kong Institute of Asia-Pacific Studies 

The Hong Kong Institute of Asia-Pacific Studies was established in 
September 1990 to promote multidisciplinary social science research on 
social, political and economic development. Research emphasis is placed 
on the role of Hong Kong in the Asia-Pacific region and the reciprocal 
effects of the development of Hong Kong and the Asia-Pacific region. 

Director: Yeung Yue-man, PhD(Chic), Professor of Geography 
Associate Director: Lau Siu-kai, PhD(Minn.), Professor of Sociology 



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