HONG KONG FUNCTIONAL CONSTITUENCIES: POLITICAL

C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 002234 SIPDIS DEPT FOR EAP/CM; ALSO FOR DRL E.O. 12958: DECL: 12/02/2019 TAGS: PGOV PHUM HK SUBJECT: HONG KONG FUNCTIONAL CONSTITUENCIES: POLITICAL PROBLEM, JUDICIAL REMEDY? REF: HONG KONG 2125 Classified By: Acting Consul General Christopher Marut for reasons 1.4( b) and (d). ¶1. (C) Summary: Activists attempting to end corporate voting -- voting by a CEO or business association instead of by individuals -- in the Hong Kong Legislative Council's (LegCo) sector-based functional constituencies (FCs) have gone to court to seek redress. Two activists affiliated with the radical League of Social Democrats are arguing that corporate voting rules in FCs representing their fields of work deny them their Basic Law-guaranteed equal right to vote. Though sympathetic to the cause, at least two prominent pro-democracy barristers feel the case is substantively weak, and believe the best which might come from the outcome is a statement in the decision that FCs, though constitutional, are at least unfair. There has been some concern a defeat in this case might strengthen the hand of those seeking to retain functional constituencies as part of universal suffrage elections for LegCo, but experts seem unconcerned about blowback should the court rule in favor of the government. End summary. -------------- Basis of the Cases -------------- ¶2. (C) Hong Kong's High Court (Court of First Instance) heard arguments in a case challenging the "constitutionality" of corporate voting in Legislative Council (LegCo) functional constituencies (FCs) under the Basic Law November 19-20. The applicants, taxi driver Chan Yu-nam and self-employed construction worker Lo Hom-chau, argued that they were unfairly denied a vote in FCs putatively representing their professions (transport and construction, respectively) because voting was on a "corporate" (head of company) basis. Lo and Chan are both members of the radical League of Social Democrats. ¶3. (C) As explained by Chan's counsel, senior barrister Gladys Li Chi-hei, Article 26 of Hong Kong's Basic Law identifies "permanent residents" as having the right to cast votes. No mention is made of corporate entities voting. Moreover, the electorate in some constituencies included companies active in Hong Kong but registered in other jurisdictions and either owned or controlled by persons who were not permanent residents of Hong Kong, thus violating BL ¶26. Finally, Li contends that the ability of some businessmen with interests in several sectors to effectively control several votes (even though the actual ballots may be cast by other people) undermines Basic Law Article 25's guarantee of equality before the law. Media estimated about 1,800 Hong Kong voters might effectively control three or more votes. ¶4. (C) Media reported the government argued that the right of individual citizens to vote under Article 26 was realized through LegCo's geographical constituencies, in which each registered elector has a single vote. FCs, the government contended, are meant to represent sectoral interests, and the Basic Law does not proscribe corporate voting in the FCs. ¶5. (C) Gladys Li, herself a member of the Executive Committee of the pan-democratic Civic Party, believes the case is solid on the merits, but thinks the court will be under tremendous pressure to support the government. Her Civic Party colleague and fellow senior barrister Ronny Tong Ka-wah also felt the case was strong, but told us the Hong Kong bench was too conservative to rule for the applicants. Other pro-democracy legal experts were more dubious. Senior barrister and co-founder of the Democratic Party Martin Lee Chu-ming told us he had been approached to take the case, but demurred at least in part because on review the case, though "respectable," proved less clear cut than it had been initially presented to him. Barrister and University of Hong Kong law professor Simon Young told us that, while he believed the judge hearing the case was progressive, the merits could go either way, since existing Hong Kong law already recognized the existence of FCs including corporate voting. Young felt the best the pan-democrats could hope for was a decision that cast corporate voting as constitutional but unfair. -------------- Political Backdrop -------------- ¶6. (C) The case was heard amidst a sharp public debate over constitutional reform and particularly the future of FCs HONG KONG 00002234 002 OF 002 under a LegCo which should ultimately be entirely elected on the basis of universal suffrage. That debate centers on the applicability to Hong Kong of Article 25 of the International Covenant on Civil and Political Rights (ICCPR),which guarantees the right of all citizens to both vote and stand for elections on an equal basis. When the UK agreed to extend the terms of the ICCPR to Hong Kong, it took a reservation on Article 25, owing to the fact that Hong Kong at that time did not have an elected government. The position of the PRC and the Hong Kong government, reiterated most recently on December 2 by Hong Kong Secretary for Constitutional and Mainland Affairs Stephen Lam Sui-lung, is that the reservation still applies. The pan-democrats and the UN body monitoring ICCPR compliance hold that the reservation lost force once Hong Kong's LegCo began to have elected members in 1991. ¶7. (C) In the days following the case, more voices emerged in defense of FCs, suitably modified, as compliant with universal suffrage. Speaking on a radio call-in program November 19, Chief Secretary for Administration (and widely-tipped candidate for Chief Executive in 2012) Henry Tang Ying-yen argued that a "one person, two votes" system would be compatible with universal suffrage. A few days later, Mainland legal expert and Basic Law drafter Lian Xisheng was quoted as supporting Hong Kong's retaining functional constituencies. Recent comments from others in the establishment, including Chief Executive Donald Tsang Yam-kuen, Hong Kong National People's Congress (NPC) deputy Maria Tam Wai-chu, and State Council Institute for Hong Kong and Macau Affairs Rao Geping, have suggested FCs might be retained in some form. ¶8. (C) More ominous are rumors that Beijing may be contemplating an NPC Standing Committee (NPC/SC) interpretation of the Basic Law to uphold functional constituencies. Democrat Party legislator Cheung Man-kwong told media he was approached in the LegCo antechamber and asked for his view of an NPC/SC interpretation that would define universal suffrage. Pro-establishment figures have tamped down these rumors, although occasionally arguing an interpretation was unnecessary to allow FCs to continue. ¶9. (C) While the pro-democracy lawyers with whom we spoke had clearly considered whether a loss in the case might set back their cause, in that the courts would have upheld the constitutionality of the FCs, on balance they believed the damage would be minimal. MARUT