The 2010 Hong Kong Legislative Council by-election was an election held on 16 May 2010 in Hong Kong for all five geographical constituencies of the Legislative Council (LegCo), triggered by the resignation of five pan-democrat Legislative Councillors in January of the same year.Associated Press (11 March 2010), "Hong Kong, China debate legality of referendum" , Asian Correspondent. Retrieved on 5 April 2010.
Discussions among the pan-democrats commenced in July 2009 for five legislators to resign to force a territory-wide by-election.Fung, Fanny (19 January 2010), "Referendum bid is against Basic Law, minister says", South China Morning Post, Retrieved on 20 January 2010. The plan, which they dubbed the Five Constituencies Referendum (五區公投) or Five Constituencies Resignation (五區總辭), involved one pan-democratic legislator resigning from each of the five geographical constituencies, thereby triggering a by-election in which all Hong Kong citizens could participate. Although the Basic Law of Hong Kong does not provide for official referendums, the pan-democrats hope that by returning the resignees to the Legislative Council, on their manifesto of real political reform in Hong Kong and the abolition of functional constituencies, the election can be seen as a de facto referendum and an endorsement of these issues.Leong, Alan (8 February 2010)"Quantifying Hong Kong's Democratic Desires" Wall Street Journal Retrieved on 21 January 2011. The five LegCo members resigned their seats on 21 January 2010 with the by-election taking place on 16 May 2010.
The vote count was finalised by 2 am on 17 May 2010. Following a boycott by the pro-government parties, the five who resigned were successfully returned to the Legislative Council by voters with a turnout rate of only 17.1%. The by-election has been criticised as a waste of taxpayers' money.
Background
According to Annex II of the Basic Law of Hong Kong, the Chief Executive of Hong Kong is elected by an 800-person election committee, consisting of appointees from four different sectors. The Legislative Council (LegCo) consists of 60 seats, 30 of which are geographical constituencies, subject to popular mandate; the remaining 30 seats are returned by functional Constituencies, which are elected by a much smaller pool of voters consisting of corporate bodies and workers in the various sectors. The 800 Election Committee members are appointees. The existing electoral arrangement, which allows a person belonging to a stipulated sector to control more than one vote, has been denounced by Human Rights Monitor as "highly corrupt".
Articles 45 and 68 of the Basic Law state that the Chief Executive and all members of LegCo shall eventually be elected by universal suffrage, while changes in election methods shall be in accordance with the principle of "gradual and orderly progress". According to Annex I and II of the Basic Law, the election method of the Chief Executive and the LegCo may be amended after 2007.
On 29 December 2007, the NPCSC resolved that the Chief Executive and LegCo could be elected via universal suffrage in 2017 and 2020 respectively.Decision of the Standing Committee of the National People's Congress on issues relating to the methods for selecting the Chief Executive of the Hong Kong Special Administrative Region and for forming the Legislative Council of the Hong Kong Special Administrative Region in 2012 and on issues relating to universal suffrage (adopted by the Standing Committee of the Tenth National People's Congress at its 31st session on 29 December 2007), Hong Kong Legal Information Institute The pan-democracy camp has become increasingly frustrated at the slow pace of reform. After the failure to achieve universal suffrage in 2007, the target of the pan-democrats has shifted to 2012; pro-Beijing camp stated its preference for 2017.
On 18 November 2009, based on the NPCSC decision, the Hong Kong Government published the Consultation Document on the Methods for Selecting the Chief Executive and for Forming the LegCo in 2012, which the Government said showed its determination to advance Hong Kong's democratic development in 2012, and to pave way for universal suffrage elections of the Chief Executive and the Legislature as resolved by the NPCSC. The document said that in line with the principle of "gradual and orderly progress", the scope of political participation would be broadened and the democratic elements in the 2012 elections substantially increased; the administration proposed to enlarge the Election Committee for electing the Chief Executive, add ten new LegCo seats, of which five indirectly elected. The administration also proposed to give elected District Council members more seats on the Election Committee.Public Consultation on the Methods for Selecting the Chief Executive and for Forming the Legislative Council in 2012 , Government of Hong Kong, 18 November 2009 Following the unveiling of the consultation document, Pan-democrats attacked the lack of genuine progress, saying that the proposals were but a rehash of, and in some respects worse than, the 2005 proposals which they vetoed. Anson Chan commented on the lack of substance in the proposals: "The Hong Kong public is now left like someone pedalling a bicycle with no chain: the pedals spin round, but no forward progress is made."Lau, Nickkita (19 November 2009) Unimpressed democrats vent their frustration , The Standard
Five Constituencies Referendum
LSD stance The League of Social Democrats (LSD) proposed resignations by pan-democrats from LegCo in late July 2009. Wong Yuk-man said that it would "give people the chance to say they don't want any undemocratic reform proposals short of full universal suffrage by 2012." They proposed that members from the pan-democracy camp resign according to the size of their caucus in LegCo: two members from Democratic Party, one member from each the Civic Party and the LSD, and one member from the four independent democrats, chosen by drawing lots, thereby creating a 'referendum effect'. They suggested the timing of the resignations coincide with final reform proposal, after a public consultation exercise in late 2009; they also said that all three LSD legislators would resign if necessary.Leung, Ambrose (1 August 2009), "League unveils by-election ploy to create 'referendum on universal suffrage'", South China Morning Post
Democratic Party stance Further to that, Szeto Wah revealed that a meeting was held to discuss the plan in or around September 2009 between Anson Chan, Martin Lee, Allen Lee, and Szeto, brokered by Jimmy Lai, during which he voiced opposition to the "unworkable" plan; the others who attended the meeting appeared to have softened their stance subsequently.Chiang, Scarlett (25 November 2009), Lai led 'gang of four'
In November 2009, Albert Ho declared his opposition to the referendum plan, as his party was "elected to fight for the public." He added that the proposal would be voted on by party members on 13 December.Chiang, Scarlett & Siu, Beatrice (23 November 2009), Don't call it quits , The Standard Szeto Wah said the Democratic Party would not join in the resignations itself, but would support pan-democrats who stood for re-election. Martin Lee called on the other democrats to rethink their participation in the plan.
In December, the Democratic Party membership voted 229 voted against, 54 in favour and one abstention not to join the resignation plan after a four-hour debate; Martin Lee expressed his disappointment.Chiang, Scarlett (14 December 2009), Democrats say `no' to resign plan , The Standard
Civic Party stance The Civic Party was initially lukewarm to the idea; it later responded with their "3-Stage Fight Plan for Universal Suffrage", which involves firstly negotiation with the government for a firm roadmap and timetable, Five Constituencies Resignation, and if that is not successful, mass resignation of all 23 democrats in Legco.Lee, Diana (10 September 2009), Stealing a march on road to reform , The Standard Party co-founder Ronny Tong opposed the plan, fearing the loss of veto if their numbers dwindled in the by-election. Tong was not confident of the pan-democratic camp being able to mobilise sufficient voters to render meaningful effect in the so-called de facto referendum. He also feared that failing to get Beijing to agree to its demand after the first phase of protest would lead to mass pan-democratic resignations from LegCo, which would be likely to further the split the pan-democratic camp.'Mary Ma' (25 November 2009) "Cool heads in resignation bet" , The Standard Around November 2009 there were disputes within the pan-democracy camp as to who would resign or not.Chiang, Scarlett & Siu, Beatrice (26 November 2009), "Resignations pressure - shifts to Civic Party" , The Standard, Retrieved on 26 November 2009. Tong said he would not resign his seat in Legco if there was to be a mass resignation, but would instead leave the party he helped found.Lee, Diana (2 October 2009), Tong quit threat over resign move , The Standard
Pro-Beijing parties' stance In November the Liberal Party chairman James Tien and Chan Yuen-han of the Federation of Trade Unions were looking to contest the by-elections.
Challenges
Constitution and legal On 15 January 2010, the State Council's Hong Kong and Macao Affairs Office of China's State Council said any "so-called referendum" would be inconsistent with Hong Kong's legal status and a "blatant challenge" to the Basic Law and the central government's authority. National People's Congress vice chairman and secretary general Li Jianguo reiterated that view at the annual meeting of the Chinese People's Political Consultative Conference in Zhuhai.Fung, Fanny; Cheung, Gary & Leung, Ambrose. "State leader mounts new assault on 'referendum'." South China Morning Post, Retrieved on 20 January 2010. The same day, both the central government and Hong Kong's Constitutional Affairs minister Stephen Lam said a referendum on Hong Kong's electoral reform would be inconsistent with the Basic Law. Audrey Eu, Civic Party lawmaker who is also a barrister, denied that the resignation scheme challenged the Basic Law and Beijing's authority, and insisted the scheme was legal. A government spokesman said they were obliged, by the Basic Law, to hold by-elections to fill vacant seats, but that any kind of referendum has no legal basis.
A number of local legal scholars have since expressed their opinion that a referendum would not be illegal nor inconsistent with the Basic Law: Albert Chen, professor of law of the University of Hong Kong, said that the referendum was contrary to the spirit of the Basic Law, but it was not illegal and the pan-democrats could not be prosecuted for it; an assistant professor of law at HKU, rejected claims that a non-binding referendum would contravene the Basic Law. An editorial in the SCMP said that while the Basic Law did not expressly rule out or permit referendums, Beijing's statement that the elections are unconstitutional has "dignified the ill-conceived resignation plan by treating it as a matter of constitutional significance.""Beijing's stance on referendum unhelpful.", South China Morning Post, Retrieved on 18 January 2010.