Another year, another NPC decision on Hong Kong. On Thursday, March 11, the National People’s Congress, with 2895 votes in favor and 1 abstention, approved the Decision on Improving the Electoral System of the Hong Kong Special Administrative Region (Decision) [关于完善香港特别行政区选举制度的决定], which takes immediate effect. The Decision comes on the heels of a series of events in the past two years: mass protests against the Hong Kong government’s extradition bill (since withdrawn), opposition lawmakers’ use of filibusters to delay proceedings, and pro-democracy primaries for the now-postponed 2020 Legislative Council election. (Almost fifty activists involved in the primaries have been charged with violating the Hong Kong National Security Law.) The Decision’s explanatory document cites all those events as evidence of the “clear loopholes and deficiencies” in Hong Kong’s current electoral system—which it says have been exploited by “anti-China, destabilizing elements” to attempt to seize the “power to administer [Hong Kong].” It is therefore “important,” the explanation continues, “to take necessary steps to improve the electoral system and remove existing institutional deficiencies and risks to ensure the administration of Hong Kong by Hong Kong people with patriots as the main body.” The Decision marks the first of those steps. Below, we will first provide an overview of the Decision, before discussing in detail the changes it will make to Hong Kong’s electoral system.
The Decision includes a preamble followed by nine operative articles.
The preamble requires that Hong Kong’s electoral system, as an important part of its political structure, must “conform to the policy of ‘one country, two systems,’ meet the realities in the Hong Kong Special Administrative Region [(HKSAR)], serve to ensure that Hong Kong is administered by people who love the country and love Hong Kong, be conducive to safeguarding China’s national sovereignty, security, and development interests, and help maintain the long-term prosperity and stability of Hong Kong.”
The preamble invokes the NPC’s authority under articles 31 and 62 of the P.R.C. Constitution. Article 31 empowers the NPC to prescribe by law the systems to be instituted in a special administrative region like Hong Kong. And article 62 allows the NPC to “oversee the implementation of the Constitution” and to exercise any unenumerated functions and powers as it deems necessary. The preamble also cites unspecified provisions of the Hong Kong Basic Law and the Hong Kong National Security Law as part of the legal basis for the Decision.
Article 1 lays down five basic principles for reforming Hong Kong’s electoral system:
- fully and faithfully implementing the policy of “one country, two systems” under which the people of Hong Kong administer Hong Kong with a high degree of autonomy;
- upholding Hong Kong’s constitutional order as established by the P.R.C. Constitution and the Hong Kong Basic Law;
- ensuring the administration of Hong Kong by Hong Kong people with patriots as the main body;
- effectively improving the governance efficacy of the HKSAR; and
- safeguarding the right to vote and the right to stand for election of Hong Kong’s permanent residents.
Articles 2–5 set forth, in varying levels of detail, changes to several aspects of Hong Kong’s electoral system, which we will discuss below. The “overall design” of the overhauled system, according to the Decision’s explanation, “will be centered around the reformation and greater empowerment of the Election Committee [選舉委員會],” which currently selects the Chief Executive. The Committee will both increase in size and gain new functions.
Article 6 authorizes the NPC Standing Committee (NPCSC) to amend Annex I and Annex II to the Hong Kong Basic Law—which govern, respectively, the selection of the Chief Executive and formation of the Legislative Council—in accordance with the Decision. Because the Hong Kong Basic Law vests the power of amendment in the NPC alone, a special authorization to the NPCSC is necessary.
Article 7 requires Hong Kong to amend its local laws consistent with the amendments adopted by the NPCSC.
Article 8 requires the Chief Executive to submit reports to the central government on Hong Kong’s “institutional arrangements for elections” and “the organization of the elections.”
Article 9 provides that the Decision takes immediate effect.
Election Committee Composition
- industrial, commercial, and financial sectors;
- the professions;
- labor, social services, religious, and other sectors; and
- (what we term) “political sectors.”
Relevant to our discussion is the fourth sector. It consists of—
- all members of the Legislative Council;
- representatives of members of the District Councils;
- representatives of the Heung Yee Kuk [鄉議局] (a statutory advisory body representing the New Territories);
- all Hong Kong delegates to the NPC; and
- representatives of the Hong Kong members of the National Committee of the Chinese People’s Political Consultative Conference (CPPCC).
Hong Kong’s Chief Executive Election Ordinance [行政長官選舉條例] (Cap. 569) further allocates the 300 seats among the five subsectors as follows (sched., § 2, tbl.4):
- Legislative Council: 70;
- District Councils: 117;
- Heung Yee Kuk: 26;
- NPC: 36; and
- CPPCC: 51.
A few subsectors select their own representatives to the Election Committee through plurality-at-large voting, under which the most popular political faction in a given subsector will be able to secure all Election Committee seats for that subsector. For example, since the pro-democracy camp won 388 of 452 seats in the 2019 District Council elections, it would be able to take all 117 Election Committee seats that are reserved for District Councilors under the current rules.
The Decision contemplates a series of changes to the composition of the Election Committee. The upshot is that the Election Committee will be expanded to 1,500 members (from 1,200), with a new fifth sector. The Decision does not specify whether the 1,500 seats will still be evenly divided among the five sectors.
First, the Decision alters the guiding principle for the composition of the Election Committee. The Hong Kong Basic Law currently requires only that it be “broadly representative” (Annex I, art. 1). The Decision introduces two new requirements: the Committee must also be “suited to the HKSAR’s realities” and “representative of the overall interests of its society” (art. 2, para. 1).
Second, the Decision tweaks the composition of the third sector (labor, social services, religious, and other sectors). The “social services” subsector, traditionally dominated by pro-democracy members, will be replaced by an unspecified “grassroots” [基层] sector (art. 2, para. 2). The implication of this change is not yet clear.
Third, the Decision splits the fourth (political) sector into two:
- The new fourth sector will be confined to members of local organizations, including Legislative Council members, “representatives of district organizations,” and representatives of other unspecified subsectors. Neither the District Councils nor the Heung Yee Kuk is explicitly included in this sector. Hong Kong media have previously reported that while the central government would retain the seats for the Heung Yee Kuk, a pro-establishment stronghold, it would scrap the 117 seats reserved for District Councilors and redistribute them to other non-statutory “district organizations.”
- A new fifth sector will consist of the Hong Kong members of national organizations. Apart from the 36 Hong Kong delegates to the NPC, all Hong Kong members of the CPPCC National Committee (currently 202) will also sit on the Election Committee. This new sector will also include “representatives of Hong Kong members of related national organizations,” which (according to previous reports) may include prominent Hong Kong members of the All-China Women’s Federation, All-China Youth Federation, All-China Federation of Industry and Commerce, and other such quasi-governmental organizations.
It appears that the new seats added by the Decision would generally favor pro-establishment parties, in an ostensibly calculated move to reduce the number of seats that could be won by the pro-democracy camp in the upcoming Election Committee election. Most of these new seats, moreover, will likely not be chosen by elections. The hundreds of Hong Kong CPPCC members, for instance, are handpicked by the CPPCC National Committee itself. Thus, despite the Election Committee’s larger size, it is hardly more “representative” in nature.
Chief Executive Elections
Under the current Hong Kong Basic Law, the Election Committee’s core function is to nominate candidates for the office of the Chief Executive and then choose a winning candidate. One-eighth (or 150) of all Committee members may jointly nominate a candidate; each member may nominate only one candidate. Depending on the number of valid nominees, the Committee will then conduct one or two rounds of voting to choose a winning candidate, who must obtain a simple majority (or 601) of the votes (see Cap. 569, §§ 26A–27). Finally, the winner must be formally appointed by the central government.
The Decision leaves the process for selecting the Chief Executive largely intact. It does raise the thresholds for becoming a nominee and winning the election to 188 and 751 votes, respectively, in light of the Election Committee’s expansion (art. 3, para. 2). Most significantly, however, the Decision introduces a new requirement for being nominated: candidates who wish to run in a Chief Executive election will also need to receive at least 15 votes from each of the five sectors. Since the new fifth sector will likely consist solely of Beijing-approved members, this new requirement could effectively bar all pro-democracy candidates from entering the race.
Legislative Council Formation
Under Annex II to the Hong Kong Basic Law (as amended in 2010), the Legislative Council (LegCo) consists of 70 members. One half of them are elected by “geographical constituencies” (GCs) [地方選區] and the other half by “functional constituencies” (FCs) [功能界別], which are special interest or professional groups. Hong Kong’s Legislative Council Ordinance [立法會條例] (Cap. 542) establishes five GCs (each to elect between 5 and 9 members) and authorizes the Chief Executive to draw their boundaries and set the number of lawmakers to be elected by each GC (see §§ 18–19). The Ordinance also establishes 29 FCs and provides for their compositions and the number of lawmakers to be elected by each (see §§ 20–21). One FC is relevant to our discussion: the “District Council (second) functional constituency” [區議會(第二)功能界別], which allocates five seats in the LegCo to Hong Kong’s District Councilors (see §§ 20ZC–21, 37(2)(g)).
The 35 seats elected by the GCs and the five seats elected by the District Council (second) FC—known as the five “Super Seats”—are the only seats in the LegCo that are chosen by popular vote. Both the GCs and the Super Seats constituency use a voting system called the “list system of proportional representation,” with the “largest remainder formula” (§ 49). For a brief explanation and illustration of this system, please see this Wikipedia page. Under this voting system, a political group (represented by a list) receives seats roughly proportional to its vote share, and the seats are filled by the group’s candidates in the order as they appear on the list. In the 2016 Legislative Council elections, for instance, pro-establishment groups won 16 (45.7%) GC seats and pro-democracy groups the remaining 19 (54.3%)—in rough proportion to their shares of the popular vote (40.2% vs. 55.0%).
As a historical aside, some seats in the first two LegCos (10 and 6, respectively) were also chosen by the same Election Committee that chooses the Chief Executive. The Committee has not played a role in LegCo elections since 2004. And it was in 2012 (under the 2010 Annex II amendment) that the LegCo first expanded to 70 seats, with 5 more seats in the GCs and the 5 new Super Seats.
The Decision adds 20 more seats in the LegCo, bringing the total to 90 (art. 4). It also reintroduces the Election Committee in LegCo elections, tasking it with nominating candidates for the LegCo and electing “part of the members of the LegCo,” among other unspecified roles (art. 2). The Decision does not, however, elaborate on the nomination process.
The Decision confirms that the GCs and FCs will continue to elect some members to the LegCo (art. 4), but stops short of specifying the number of seats to be respectively allocated to the GCs, FCs, and the Election Committee in a reformed LegCo. Media reports suggest that central authorities are still weighing different options. One leading proposal calls for evenly distributing the 90 seats among the three groups, so that each would elect 30, with the GCs’ and FCs’ current seats each reduced by five. (Specifically, the five directly elected Super Seats in the FCs will likely be scrapped.) The media have also reported on a possible new voting system for GCs to replace the current proportional representation system. The new system will make it practically impossible for the pro-democracy camp to win a majority of GC seats (as it did in 2016), but the Decision does not offer any details.
While there is much unknown about the LegCo reform, one thing is clear: a larger LegCo will not bring more representation into the legislative chamber. Only up to one-third of the seats in the new LegCo will be elected by popular vote—and potentially using a less representative voting system—the lowest percentage since Hong Kong’s handover to China in 1997. The revival of the Election Committee’s role in LegCo elections, moreover, will mark a significant retreat from the “ultimate aim” of electing all LegCo members by universal suffrage as enshrined in the Hong Kong Basic Law (art. 68, para. 2).
New Candidate Qualification Review Committee
Finally, the Decision also establishes a new “Candidate Qualification Review Committee” [候选人资格审查委员会] in Hong Kong (art. 5). The Committee will be responsible for “reviewing and confirming” the qualifications of candidates in Election Committee, Chief Executive, and LegCo elections (id.).
Beyond that, nothing else is currently known about this new Committee. The Decision does not specify, for instance, what criteria it would use to vet candidates. It is likely that the NPCSC would later give the Committee mandate to determine whether a candidate is a “patriot,” so as to implement the recently invigorated notion of “patriots administering Hong Kong” [爱国者治港].
A recent speech by Xia Baolong, Director of the State Council Hong Kong and Macau Affairs Office, may offer some clue about how the authorities would define “patriot” (if at all). Xia quoted China’s late paramount leader Deng Xiaoping as saying: “A patriot is one who respects the Chinese nation, sincerely supports the motherland’s resumption of exercise of sovereignty over Hong Kong, and wishes not to impair Hong Kong’s prosperity and stability.” (This quote also appears in the Decision’s explanation.) Xia then gave three criteria of his own: a patriot must “earnestly safeguard China’s sovereignty, security, and development interests”; must “respect and safeguard China’s basic system and the constitutional order of the HKSAR”; and must “do his or her utmost to preserve Hong Kong’s prosperity and stability.” He warned that candidates must not damage China’s basic system—that is, “the socialist system led by the Communist Party of China”—thus implying that anyone who challenges the Party’s rule would not be deemed a “patriot.”
The creation of this new Committee may also affect the roles of Hong Kong’ Returning Officers. These Officers conduct largely formal reviews of the qualifications of candidates in LegCo elections (e.g., whether a candidate meets the age and residency requirements), but more recently have also been determining whether a candidate at the time of his or her nomination intends to uphold the Hong Kong Basic Law and to pledge allegiance to the HKSAR.
Article 5 of the Decision separately requires Hong Kong to update its local legislation to ensure that candidates meet the requirements laid down in existing laws and NPCSC decisions, including the Hong Kong National Security Law, the NPCSC’s 2016 interpretation of the Hong Kong Basic Law’s oath-taking requirement, and a 2020 NPCSC decision on the qualifications of LegCo members (all discussed here). The Hong Kong government has recently introduced such a bill that would elaborate on the meaning of “upholding the Basic Law and bearing allegiance to the HKSAR.”
According the Decision’s explanation, the NPCSC will start the process to amend Annexes I and II “as soon as possible” [及早] (the official English translation uses the word “promptly”) to implement the “basic principles” and “core elements” of the electoral overhaul as outlined in the Decision and explained above.
Under the mainland’s Legislation Law [立法法], the NPCSC will generally vote on (and approve) a bill after three separate reviews (art. 29). It may approve a bill after only two reviews when the interested parties have reached a “preponderant consensus” on it (art. 30). The Legislation Law also allows just a single review for bills that “adjust a single matter” or “partially amend” a statute (id.).
We think the NPCSC will pick the second route—conducting two reviews, likely in quick succession—even though the single-review process technically also applies (for it will “partially amend” the Hong Kong Basic Law). It could meet as soon as late March and complete the whole process within a month, if last year’s Hong Kong National Security Law is any guide. If the revisions to the two Annexes undergo more than one review, they may be released for public comments, but we are not optimistic about this prospect given the secrecy in which the Hong Kong National Security Law was enacted.
After the two Annexes are revised, Hong Kong will have to amend its local legislation accordingly.