DEMOCRATIC PARTY RESISTS REVEALING MEMBERSHIP

C O N F I D E N T I A L SECTION 01 OF 03 HONG KONG 002513

SIPDIS

SIPDIS

DEPARTMENT FOR EAP AND EAP/CM
NSC FOR DENNIS WILDER

E.O. 12958: DECL: 06/16/2031
TAGS: PHUM PGOV PREL PINR CH HK
SUBJECT: DEMOCRATIC PARTY RESISTS REVEALING MEMBERSHIP

REF: HONG KONG 2211

Classified By: E/P SECTION CHIEF SIMON SCHUCHAT; REASONS 1.4 (B, D)


1. (C) Summary: The Democratic Party (DP) is the only one of
Hong Kong's four largest political parties which has failed
to comply with a long-existing but only recently publicized
legal requirement to release its membership roster. While
the DP initially announced that it would publish its list on
June 1, it subsequently reversed its position and requested a
judicial review of the requirement by the Department of
Justice (DOJ). If that appeal is unsuccessful, then the DP
promises to move the issue to the courts for resolution. The
Hong Kong Human Rights Monitor is supporting the DP's
position, arguing that the disclosure requirement not only
will inhibit the development of political parties, but also
could adversely affect other groups of a sensitive nature,
such as human rights activists, and more generally infringe
on freedom of association. The DOJ has promised that it will
give "urgent consideration" to the DP's request for a legal
review, and expects to reach a decision before the end of
June. In the interim, however, the DP may remain liable for
prosecution for failure to comply with the law. Both the DP
and the Civic Party, which already has released its
membership roster, have called on the Government to enact
legislation specifically designed to regulate political
parties, but the Constitutional Affairs Bureau claims that
"now is not the right time" for new legislation in this area.
In the case of the DP, in addition to the legal and human
rights principles involved, the reluctance to comply with the
legal requirement stems from long-standing fears, compounded
by recent reports of attempted infiltration and bribery, that
mainland officials would use their membership information to
pressure or intimidate DP members. End Summary.

Democrats Hold Out
--------------


2. (SBU) Since the eruption of the political party membership
list issue in March (ref),three of Hong Kong's four major
parties -- first the Civic Party (CP) on May 19, then the
Democratic Association for the Betterment and Progress of
Hong Kong (DAB) and the Liberal Party (LP) shortly thereafter
-- have, albeit reluctantly, released their membership lists.
As of June 16, only the Democratic Party (DP) has not
complied with this legal requirement. After first announcing
that it would publish its list on June 1, the DP -- amid
rumors that 10-12 of its more prominent members were
reluctant to have their past or present membership made
public -- then reversed its position and decided to contest
the requirement. Specifically, the party questioned whether
application of Section 98 of the Companies Ordinance (CO),
which mandates disclosure of members' names and addresses, to
political organizations was consistent with the Basic Law.
On June 1, the DP invoked Section 99 of the CO to close its
membership register for thirty days while it sought
governmental and/or judicial relief from the requirements of
the ordinance.


3. (C) On June 7, the DP announced that it would withhold the
names of its members and seek a judicial review if the
Government attempted to force it to comply with the law. On
June 8, DP Vice Chairman Albert Ho and several other DP
representatives met with Solicitor General Robert Allcock to
discuss whether the disclosure requirement was consistent
with the protection of privacy and freedom of association.
Ho characterized the CO as a commercial regulatory regime
that was not appropriate for application to non-profit groups
such as political parties and nongovernmental organizations;
he suggested that the Government should waive political
parties from the membership publication requirement. Allcock
told the DP representatives that the DOJ would examine the
legal issues to determine if there were any human rights
implications. At the same time, however, Allcock told the DP
that he could not guarantee that the DP would not face
prosecution for refusal to disclose their list under existing
law. Non-compliance could result in a HKD 10,000 (USD 1,300)
fine, plus HKD 300 (USD 40) for each additional day of
violation. The DP has said it would challenge any penalties
in the courts, if necessary.

Human Rights Monitor Weighs In
--------------


4. (SBU) Also on June 8, Hong Kong Human Rights Monitor
Director Law Yuk-kai entered the debate, telling the press
that the disclosure requirement would infringe the
International Covenant of Civil and Political Rights (ICCPR)
and could cause difficulty for some current DP members, deter

HONG KONG 00002513 002 OF 003


others from joining the party, and adversely affect the DP's
development. Law also claimed that the requirement would
have an adverse affect on other groups of a sensitive nature,
such as human rights activists, and in general infringe on
freedom of association. According to Law, political parties
and other non-business organizations had little choice in
this matter, since registration under the Societies Ordinance
(SO) would be even more difficult. (Note: The SO, which was
enacted during Hong Kong's colonial era to control the
formation of criminal groups such as triads, delegates
considerable power to the Police Commissioner to monitor and
interfere with the operations of organizations registered
under it. A society or group may be exempted from the SO's
registration requirements only if it is established solely
for religious, charitable, social, or recreational purposes;
such requirements would exclude most politically active
groups.)


5. (C) On June 16, Director Law told poloff that in his view,
neither the SO nor the CO was appropriate for political
parties and NGOs. Neither ordinance was "conducive to
freedom of association" and these types of organizations were
entitled to exemptions. Law was critical of the CP's
agreement to publish its membership list; he said the press
leak of the names of most CP members caused the party, as a
face-saving gesture, to claim they had "nothing to hide."
Law also noted that numerous other countries, including the
U.S., Canada , the U.K., Germany, France, Australia and New
Zealand, did not mandate public disclosure of political party
membership lists.

Next Steps: Government Action
--------------


6. (C) On June 14, Solicitor General Allcock told us that the
DOJ would give "urgent consideration" to the DP's request for
a legal review, and he expected his department to reach a
decision before the end of June. That said, however, Allcock
noted that there might be a "prosecutorial question" if the
Hong Kong Companies Registry formally requested a DOJ opinion
on whether to prosecute the DP for failure to comply with the
CO requirement to make its membership list available to the
public. If that were to happen, Allcock said the DOJ would
be forced to issue a decision, after which he was certain the
matter would land in the court system for adjudication.

Next Steps: New Legislation
--------------


7. (C) Both the DP and the CP have called on the Government
to enact legislation specifically designed to regulate the
establishment and operation of political parties. According
to CP legislator Margaret Ng, a legal framework that requires
groups to meet standards of transparency, accountability and
good governance is important for the continuing development
of political parties in Hong Kong. Allcock told poloff that
he had passed the DP's request for a legislative solution to
the "relevant bureaus" for consideration. He noted, however,
that this issue already had been discussed in Legco and that
the Constitutional Affairs Bureau already had stated publicly
that "now is not the right time" for the government to
present new legislation in this area because it "may not be
the best means of encouraging the development of new
political parties." Allcock, while claiming that Hong Kong's
Companies Ordinance was similar to that of the U.K. and
"difficult to fault," agreed that the law had not been
intended to regulate political parties or other
non-commercial organizations.

Why Are the Democrats Nervous?
--------------


8. (C) Some members of Hong Kong's two pro-government
parties, the DAB and the LP, criticized the DP's reluctance
to reveal its membership. DAB Legco member Chan Kam-lan
speculated that a political party, which "is not a triad",
must have something to hide if it refuses to disclose its
membership. Less caustically, LP Chairman James Tien said
his party did not support the DP's effort to amend
legislation, although his colleague Miriam Lau observed that
application of the CO to political parties was not
appropriate.


9. (C) The DP long has sought to keep its membership secret
to avoid pressure on individual members from the mainland
government, which the party fears might attempt to influence
DP Legco members' votes and policy positions. In recent
months there have been press reports and rumors that
unidentified people or organizations were attempting to

HONG KONG 00002513 003 OF 003


"infiltrate" the party, presumably to learn the identities of
its members as well as to gain information about its
operations and positions. The DP formed a task force to
investigate the issue but has not announced any findings.
Also, in mid-May two senior party members experiencing
"financial difficulties" reportedly were offered large sums
of cash by mainland contacts.


10. (C) The party leadership also might fear that the
disclosure requirement could inhibit recruitment of new
members, which has been anemic: a June 10 "South China
Morning Post" article reported that four district councilors
recently had resigned from the DP, bringing the total number
of departures to 46 since January 2005, compared with 40 new
members recruited during the same period. (Party membership
currently totals about 600.) DP Secretary-General Cheung
Yin-tung denied that there was an "exodus" from the party,
claiming the departees had quit for "different reasons" but
remained "friends in the path of democracy." Finally, the
Hong Kong press has speculated that there may be some top
officials who joined the party out of "youthful idealism"
when they were junior civil servants; even if they had since
resigned, full disclosure as required by the CO would reveal
their identities. More concretely, the PRC long has banned
DP leaders from travel on the mainland, and some of the
members who are reluctant to have their membership become
public information might be concerned about losing their
mainland travel permits.
Cunningham