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