Legislation Analysis: NPC Standing Committee Approves Overhaul of Hong Kong’s Electoral System

Just shy of twenty days after the National People’s Congress (NPC) had authorized and outlined a drastic overhaul of Hong Kong’s electoral system, the NPC Standing Committee (NPCSC) on Tuesday, March 30 finalized details of the overhaul. The NPCSC unanimously approved revisions to Annexes I and II to the Hong Kong Basic Law, which respectively govern the selection of the Chief Executive and formation of the Legislative Council. The revisions took effect on March 31. Below we will take an in-depth look at the electoral overhaul. More detailed discussion of the previous election rules can be found in our explainer of the NPC’s March 11 decision.

Election Committee Composition

The Basics. Under the revised Annexes, the Election Committee will expand in size and become a more powerful institution. It now consists of 1,500 members (up from 1,200), evenly allocated to five sectors as shown in the table below. Annex I now includes multiple layers of safeguards to give the pro-establishment camp a decided edge in future Election Committee elections.

Memberships & Selection Methods. The revision has altered the sectors’ memberships and methods for selecting their members in the Election Committee, some more drastically than others. Apart from four strongly pro-establishment subsectors in the Fourth and Fifth Sectors—whose members may (but do not have to) be elected by individual voters—all other subsectors that previously allowed individuals to vote in Election Committee elections will now permit only corporate bodies to vote. With the sectors’ electoral bases shrunken significantly, the Election Committee will become less representative and more easily controlled by corporate interests.

Here is a more detailed look at the changes to each sector:

• First Sector: This sector’s membership has not seen any major changes. A new “small and medium enterprises” subsector is added but its constituents (hence political leaning) is unknown. Eight subsectors used to allow individuals to vote in elections, but no more.
• Second Sector: This sector has traditionally been a stronghold for the pro-democracy camp, so the new Annex I seeks to diminish its influence in several ways.
  • No subsector now allows individuals to vote in elections. This stands in stark contrast to the previous practice under which all but one subsector used purely individual voting—and the corporate votes in the only subsector using mixed voting were in fact negligible.
  • Almost half of the seats in the Second Sector will not be elected at all. The revised Annex I has introduced numerous ex officio and nominated members. They will either serve by virtue of their positions in governmental or government-adjacent bodies—in both mainland and Hong Kong—or be appointed by those bodies (e.g., Chinese Academy of Sciences, China Law Society, NPCSC’s Hong Kong Basic Law Committee, Hong Kong’s local “statutory bodies, advisory bodies, and relevant associations”).
  • Two pairs of subsectors have been merged: “education” with “higher education,” and “medical” with “health services.” These professions are now allocated 60 fewer seats—seats that would have been favorable to the pro-democracy camp.
  • Two subsectors from the original Third Sector have been moved here: “sports, performing arts, culture and publication” and “social welfare.” The implication of this change is unclear. But it could be a deliberate step to either (1) reduce the two subsectors’ representation in the Election Committee (as each has lost 30 seats after having been moved to the Second Sector); or (2) diminish the pro-democracy camp’s influence in the Third Sector (as the “social welfare” subsector used to be the only pro-democracy stronghold in that Sector).
• Third Sector: To replace the two subsectors now transferred to the Second Sector, two new ones have been added in the Third Sector: “grassroots associations” and “associations of Chinese fellow townsmen.” While the latter associations are likely pro-Beijing groups, the composition of the former subsector is not yet known. According to Tam Yiu-chung, Hong Kong’s sole member in the NPCSC, the government would later draw up a closed list of eligible “grassroots associations.”
• Fourth Sector: The composition of this sector has changed significantly. All 117 seats reserved for members of Hong Kong’s District Councils (most of whom are popularly elected and belong to the pro-democracy camp) have been scrapped. In their place are the representatives of various local committees: Area Committees, District Fight Crime Committees, and District Fire Safety Committees. Their members are either government officials who serve ex officio, or non-official members who are appointed by the government. These committees, with a total of 156 seats, are thus dominated by the pro-establishment camp. According to Tam, this move would “depoliticize” the District Councils, but it is ironic that they are replaced by more politicized, but less representative local committees.
• Fifth Sector: This sector is newly created by the revised Annex I. It consists of two subsectors: all Hong Kong delegates to the NPC and most (if not all) Hong Kong members of the National Committee of the Chinese People’s Political Consultative Conference (CPPCC) (both were in the Fourth Sector); and “representative of Hong Kong members of relevant national organizations.” What these “national organizations” are is not yet clear, but they would reportedly include some of the mainland’s semi-official mass organizations.

Hong Kong Government’s Role. Before Tuesday’s revision, Annex I did not lay down such detailed rules on the makeup of the five main sectors or on the methods for selecting their members on the Election Committee. By doing so, the revised Annex has sharply limited the Hong Kong government’s legislative autonomy over the Election Committee. Still, the Annex leaves many terms undefined and expressly allow the Hong Kong government to legislate on “[t]he specific method” for electing Election Committee members, including “the definition of statutory bodies, advisory bodies, relevant associations and eligible corporate voters for relevant subsectors, the method for nomination of candidates and the method for voting.”

Chief Executive Selection

The revised Annex I has not introduced any new detail not already included in the NPC’s March 11 decision. To thus recap the new procedures for selecting Hong Kong’s Chief Executive: A candidate for the office of the Chief Executive must be jointly nominated by at least 188 Election Committee members. The Committee will then conduct one or two rounds of voting to choose a winning candidate, who must receive over 750 votes—with at least 15 votes from each of the five sectors. The winning candidate will then be formally appointed by the central government.

Legislative Council Formation

The Basics. Under the revised Annex II, the Legislative Council (LegCo) now has 90 seats (up from 70): 40 will be elected by the Election Committee; 30 by functional constituencies (FCs), which are mostly special interest or professional groups; and the remaining 20 by geographical constituencies (GCs)—that is, by popular vote. Candidates for all 90 seats must also be nominated by the Election Committee (in addition to required nominations from their respective constituencies). The Election Committee has not played a role in LegCo elections since 2004, and both the GCs and FCs previously held 35 seats. Changes to the LegCo’s composition are again designed to ensure the pro-establishment camp will secure a safe majority in future LegCos.

GC Seats. The revised Annex II has introduced a new voting system for the GC seats. Previously, there were five GCs, each to elect between 5 and 9 members. The GCs used a voting system called the “list system of proportional representation” (explained and illustrated here). Under this 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. Thus, the pro-democracy camp was able to win roughly 60% of the GC seats, comparable to its share of the popular vote.

The 5 GCs are now broken into 10 smaller GCs (to be drawn by the Hong Kong government), each allocated two LegCo members. Each voter may vote for only one candidate; the two with the most votes win. Under this system, the pro-democracy camp will at best win half of the GC seats—which are already at their lowest percentage since Hong Kong’s handover to China.

FC Seats. The revision to Annex II makes several important changes to the FCs. The current 28 FCs are shown in the table below.

• The 6 seats (including 5 directly elected “Super Seats”) reserved for members of the District Councils—which, again, are dominated by the pro-democracy camp after the 2019 elections—have been eliminated.
• Now individuals can vote in the elections for only 9 FC seats, down from 23. Those nine FCs include pro-establishment strongholds like the Heung Yee Kuk (a statutory advisory body representing the New Territories) and a new FC consisting of members of national organizations (NPC, CPPCC, etc.), as well as traditionally pro-democracy FCs, like law and accountancy.

Election Committee Seats. Candidates for the Election Committee seats must each be jointly nominated by between 10 and 20 Election Committee members, with between 2 and 4 members from each of the five sectors. Each Election Committee member can then vote for 40 candidates; the 40 with the most votes win. Although “any eligible voter” may be nominated for these 40 seats, the Election Committee might opt to send its own members to the LegCo—it certainly has the incentive to do so.

Nominations. As mentioned, all candidates who wish to run in a LegCo election must be nominated by the Election Committee. The threshold is the same for all three categories of seats: each candidate must be nominated by between 2 and 4 members from each sector (thus by between 10 and 20 Election Committee members). Because each member may nominate only one candidate for each category of seats, there will be a maximum of 150 candidates for each category. The revised Annexes have also constitutionalized the nomination requirements previously prescribed by local legislation: in addition to nominations by Election Committee members, a GC candidate must receive at least 100 nominations from its constituents, and an FC candidate must receive at least 10 such nominations.

Legislative Council Voting Rules

Annex II also institutes a new set of voting rules for the LegCo as a result of its new makeup.

Previously, government bills needed a simple majority of all LegCo members present to pass, whereas private bills (those introduced by individual legislators) required separate simple majority votes by both the GC members and FC members present.

The revised Annex II has not altered the vote required for government bills. For private bills, however, it requires separate simple majority votes by two groups of legislators: (1) those elected by the Election Committee; and (2) all other members (i.e., GC and FC members). This new rule will make it harder for pro-democracy legislators to block private bills introduced by the pro-government legislators.

Election Committee Conveners

The revised Annex I also establishes “a system of conveners for the Election Committee,” something not hinted at by the NPC’s March decision. There will be a “chief convener,” who must be “an Election Committee member who holds an office of state leadership.” Only the Hong Kong vice chairpersons of the CPPCC National Committee could satisfy both criteria, and it is indeed expected that either Tung Chee-hwa or Leung Chun-ying—two former Chief Executives—would serve as the chief convener. The chief convener is authorized to designate several conveners for each sector of the Election Committee.

The conveners are responsible for “convening meetings of the Election Committee as necessary and handling the relevant matters.” But the Annex does not specify when such necessity would arise or what the “relevant matters” would be. According to Carrie Lam, the current Chief Executive, the convener system would be used only “under very, very exceptional and rare situations” and “only kick in during elections.” She assured that the system “has absolutely no role in the governance of Hong Kong” during “normal periods of governance.”

Candidate Eligibility Review Committee

The revised Annexes I and II establish a Candidate Eligibility Review Committee (CERC) in Hong Kong to “review” and “confirm” the eligibility of candidates who wish to run in Election Committee, Chief Executive, or Legislative Council elections. Or in an NPCSC official’s words, the CERC will ensure that all candidates for elected offices are “patriots.”

The Annexes do not specify the composition of the CERC. Lam said at a press conference on March 30 that the CERC would consist of “several principal officials” in the Hong Kong government, who are all formally appointed by and thus accountable to the central government.

The Annexes outline a three-step process by which the CERC is to conduct review:

• The National Security Department of the Hong Kong Police Force (established under the Hong Kong National Security Law) will first review each candidate.
• Based on the Police Force’s review, Hong Kong’s Committee for Safeguarding National Security (also established under that Law and chaired by the Chief Executive) will make findings as to whether the candidate meets “the legal requirements and conditions” of upholding the Hong Kong Basic Law and swearing allegiance to the Special Administrative Region as required by article 104 of the Basic Law (and further elaborated in a November 2020 NPCSC decision). If a candidate fails to meet these requirements, the Committee will then accordingly issue an opinion to the CERC.
• The CERC will decide whether the candidate is eligible based on that opinion.

The CERC’s decisions are final and not subject to judicial review.

Procedures for Future Political Reforms

Not only have the revisions to Annexes I and II revamped Hong Kong’s current election rules, they have also drastically changed how future political reforms would be brought about.

Unlike the main text of the Hong Kong Basic Law, which may be amended only by the NPC itself (absent special authorizations to the NPCSC), the two Annexes had special amendment procedures. Under a 2004 NPCSC interpretation of those procedures (later reaffirmed by a 2007 NPCSC decision), constitutional electoral reform may be carried out by following a five-step process:

• The Chief Executive must first submit a report to the NPCSC regarding the need to initiate reform.
• Then the NPCSC will make a decision on the report.
• If the NPCSC decides to initiate the amendment process, the Hong Kong government will introduce amendments to the Annexes in the Legislative Council, which must approve them by a two-thirds vote.
• The Chief Executive then must consent to the amendments.
• Finally, the amendments must be recorded with or approved by the NPCSC.

Under this process, electoral reform in Hong Kong typically involved two rounds of large-scale public consultations by the government: the first on whether to initiate reform; and if the NPCSC had decided to greenlight it, the second on the specific contents of the reform.

Tuesday’s revisions to the Annexes have abolished the five-step process. Now only the NPCSC can propose and approve amendments. Although before doing so it must “solicit the views of various sectors of Hong Kong by appropriate means,” the small-scale consultations it recently conducted on the latest revisions likely means that future consultations will be similarly narrow in scope.

Prospect of Elections by Universal Suffrage

Annexes I and II have been rewritten to include built-in mechanisms to ensure that only “staunch patriots with the central government’s trust” will serve as the Chief Executive and that patriotic forces will gain a “steady and overwhelming advantage” in the Election Committee and Legislative Council, to quote an NPCSC official.

Now that the pro-establishment camp (and, by extension, the central government) can exert great (or excessive, one might say) influence and control on Hong Kong’s elections, what happens to the Basic Law’s dual goal of electing the Chief Executive and all members of the Legislative Council by universal suffrage?

That official emphasized that Tuesday’s revisions did not amend the main text of the Basic Law and that the ultimate aim of universal suffrage remains the Basic Law’s “express provision” and the “established direction of Hong Kong’s democratic development.” With the principle of “patriots administering Hong Kong” fully realized, he added, that aim can be achieved “earlier.”

When exactly he did not say. But one thing is clear: with the central government’s grip on Hong Kong’s political future firmer than ever, the Hong Kong people will have little say in designing the system for choosing their future leaders.