【Article】Seize the moment

SCMP 2014-04-11
A15 | INSIGHT | Dennis Kwok

Seize the moment – Don’t waste this chance for real dialogue on political reform in Shanghai

SCMP link: http://www.scmp.com/comment/article/1473309/dont-waste-chance-real-dialogue-political-reform-shanghai

【Dennis Kwok says democratic lawmakers heading to Shanghai must ensure that, unlike in 2005, they don’t waste the opportunity to begin genuine dialogue on political reform with mainland officials】

In 2005, the chief executive and members of the Legislative Council went on a two-day tour of the Pearl River Delta, marking the very first time all legislators in Hong Kong were invited to visit the mainland.

It was also at a time when Hong Kong was engaged in discussions on constitutional reform and the possibility of introducing universal suffrage in the 2007 chief executive and 2008 Legco elections.

Almost a decade on, we find ourselves again in the midst of a consultation for constitutional reform and universal suffrage, so it comes as no surprise that such an invitation would come from the central government.

What are the lessons we must learn from the 2005 visit?

Any opportunity to communicate directly with mainland officials should be seized at once by the democrats. However, back in 2005, the pan-democrats simply accepted the invitation in the hope that the trip would establish a good foundation of mutual trust, on top of which further communications or even a consensus could be built. It did not happen. It was wasted time, and a wasted opportunity for both sides.

The failure to achieve anything close to that in the end, however, is a lesson not to be forgotten. Simply visiting the mainland, with no follow-up and no time for serious dialogue and discussion on matters close to the hearts of the Hong Kong people, is a wasted opportunity and does nobody any good.

During this upcoming Shanghai visit, we must avoid wasting any time on sightseeing or mere political gestures. Whether it’s the best of times or the worst of times, it’s the only time we’ve got to begin a constructive dialogue by getting to the core of the issue as soon as possible. We must ensure the attendance of the relevant officials and secure sufficient time for open and frank discussions.

An official mechanism should be developed for future dialogue to continue, so as to ensure that any communication channel developed through this visit is not a one-off but a continuing one. It is only through this mechanism that a continuing and open dialogue with mainland officials on the important issue of constitutional reform could be achieved.

Otherwise, the two sides would no doubt swiftly retreat into their respective entrenchments, and the stalemate that we have seen in the past decade would continue.

In light of the significance of the upcoming Shanghai delegation and the important emphasis on the Basic Law, all 30 members of the Election Committee legal subsector, including myself, have co-written a letter to be presented to Wang Guangya , Li Fei and other relevant central government officials, expressing the united stance of the Hong Kong legal profession.

The letter purposely steers clear from any specific proposals but instead sets out five principles derived from the Basic Law, with which we believe any electoral proposal for the 2017 chief executive election must conform.

Article 45 of the Basic Law stipulates that the method for selecting the chief executive shall be specified in the light of the actual situation in Hong Kong and in accordance with the principle of gradual and orderly progress, and that the ultimate aim is the selection of the chief executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.

Under this constitutional structure, we believe the method for selecting the chief executive in 2017 should accord with the following cardinal principles:

  • The election should be by universal suffrage, comprising a genuine democratic election capable of reflecting the will of the Hong Kong people;
  • The nominating committee should be broadly representative. That is to say, it must be capable of reflecting the will of the Hong Kong people;
  • The method of nomination should accord with democratic procedures. Its sole purpose must be to facilitate a genuine democratic election, giving the Hong Kong people a real choice, and be capable of reflecting the actual situation in Hong Kong and the will of the people;
  • There should be no unreasonable restrictions on any individual’s right to stand for election, as enshrined in Article 26 of the Basic Law and the International Covenant on Civil and Political Rights (as entrenched in Article 39 of the Basic Law); and
  • In line with the principle of gradual and orderly progress, the nomination threshold should not, in any event, be higher and/or more difficult to attain than the threshold used in the 2012 chief executive election.

We expect any proposal for the 2017 election to be in strict accordance with these principles. Only such proposals could fulfil the relevant legal requirements in the Basic Law and the democratic aspirations of the Hong Kong people.

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【Article】By popular demand

SCMP link:
http://www.scmp.com/comment/insight-opinion/article/1379674/screening-out-popular-candidates-does-not-accord-basic-law

SCMP 2013-12-14
A17 | INSIGHT | Dennis Kwok

By popular demand-Screening out popular candidates does not accord with Basic Law intent

【Dennis Kwok looks back at how Basic Law drafters arrived at the wording of Article 45 and says their intent was never to bar candidates with public support from the chief executive election】

Last month, Chief Secretary Carrie Lam Cheng Yuet-ngor invited Li Fei , the Basic Law Committee chairman, to visit Hong Kong, ostensibly to improve our legal understanding of the relevant Basic Law provisions.

Article 45 of the Basic Law provides for the method for selecting our chief executive “by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures”. The term “democratic procedures” has a decisive impact on whether the 2017 election will adopt universal suffrage in its truly democratic form. What exactly did the Basic Law drafters mean by this term? Continue reading

【Article】Open Skies – Argument against budget airlines won’t fly in Hong Kong

SCMP link:
http://www.scmp.com/comment/insight-opinion/article/1328692/argument-against-budget-airlines-wont-fly-hong-kong

SCMP 2013-10-15
A15 | INSIGHT | Dennis Kwok

Open Skies – Argument against budget airlines won’t fly in Hong Kong

【Dennis Kwok says budget airlines must be part of the growth in our aviation industry, as travellers will benefit from greater competition】

Affordable air travel is made possible by low-cost carriers. Yet, they have so far failed to establish themselves in Hong Kong. While low-cost carriers account for 65 per cent of all travel in the Philippines and 61 per cent in Thailand, that figure is less than 10 per cent in mainland China, Taiwan and Hong Kong.

Jetstar Hong Kong has applied to the Air Transport Licensing Authority to operate out of Hong Kong. This is a potential game changer that could allow more Hongkongers to fly, and to further open up the civil aviation industry to more competition.

Hong Kong’s largest conventional airline, Cathay Pacific, and its subsidiary, Dragonair, have voiced their opposition to Jetstar’s application, claiming it would contravene Article 134 of the Basic Law which states that the government will only issue licences to airlines which are incorporated, and have their principal place of business, in Hong Kong. Continue reading

【Article】Overworked justice system at risk

SCMP link:
http://www.scmp.com/comment/insight-opinion/article/1308849/overworked-justice-system-risk

SCMP 2013-09-13
A17 | INSIGHT | Dennis Kwok

Overworked justice system at risk

【Dennis Kwok says overworked judges and a backlog of cases are affecting the quality of justice in Hong Kong, prompting the need for additional resources and support for the judiciary】

Hong Kong’s rule of law depends on the quality of our independent judiciary. It is the key contributor to the city’s competitiveness and success under “one country, two systems”. The lack of adequate resources and support, coupled with the recent spate of judicial vacancies and imminent retirements, has threatened the judiciary, access to justice and the state of our rule of law.

The average waiting time for cases, from filing to judicial hearing, has increased significantly in recent years. Civil matters in the Court of Appeal now wait an average of 131 days, an increase of 54 per cent since 2008 and in excess of the judiciary’s 90-day target. The criminal cases list has an average waiting time of 180 days, exceeding the judiciary’s 120-day target and an increase of 61 per cent since 2008. The civil cases list has an average waiting time of 244 days, exceeding the judiciary’s 180-day target and an increase of 68 per cent since 2008.

Continue reading

【Article】Snowden right to put his trust in Hong Kong’s fair and open courts

SCMP 2013-06-14
A17 | INSIGHT | Dennis Kwok

Snowden right to put his trust in Hong Kong’s fair and open courts

【Dennis Kwok says Edward Snowden’s trust in the independence of Hong Kong courts is well founded, given that any extradition to the US must satisfy a judicial procedure, whatever the politics】

Hong Kong has been thrust into the international spotlight after it was revealed that American whistle-blower Edward Snowden sought refuge in our city while he exposed the magnitude of America’s secretive state surveillance programme.

Snowden has reiterated his intention to stay and fight any extradition to the US, saying: “I have had many opportunities to flee Hong Kong, but I would rather stay and fight the US government in the courts, because I have faith in Hong Kong’s rule of law.”

Continue reading

【Article】To protect China’s environment, make its courts independent

SCMP Link:

http://www.scmp.com/comment/insight-opinion/article/1146154/protect-chinas-environment-make-its-courts-independent

SCMP 2013-02-09
INSIGHT | Dennis Kwok

【Dennis Kwok says environment can’t improve if laws are not enforced】

I was recently invited to give a lecture at the Wuhan University School of Law on the topic of environmental protection laws and the judicial system in Hong Kong. On a cold morning, I took an early train from Shenzhen to Wuhan on the high-speed rail line. Looking out of the window, I saw the scenery submerged in a grey haze, which deepened as we travelled north.

It turned out that the air pollution level in northern China that weekend broke a few records, with Beijing recording some of its highest readings ever.

In the 1980s, the central government introduced a series of laws to protect and improve the ecological and living environment. Yet, more than two decades after the laws to curb air, sea and farmland pollution were enacted, human activities continue to damage the environment on a daily basis. How is it that these laws are no more than paper tigers ignored by local officials? Continue reading

【Article】Poor being let down by lack of access to court services

South China Morning Post | 2012-10-09
A15| Insights| By Dennis Kwok

Poor being let down by lack of access to court services

【Dennis Kwok Says an independent legal aid authority is long overdue】

Justice cannot be upheld if citizens do not have access to it. That is why free and equal access to the courts has always been a key element of the rule of law. That is also why the Basic Law specifically guarantees Hong Kong residents the right to legal advice and access to courts.

Legal aid is a service that the modern state owes to its citizens who cannot afford private legal services. After all, the state is responsible for the administration of the legal system.

The current provision of legal aid services is administered, not by an independent legal aid authority, but by the Legal Aid Department under the Home Affairs Bureau.

Difficulties arise in situations of direct conflict of interests. Twenty years ago, the Legislative Council heard a debate over whether the decision not to renew the contract of the then director of legal aid was because he granted legal aid to the Vietnamese boatpeople challenging the government over their right to remain in Hong Kong. The problem is only exacerbated by the increase in the number of judicial reviews in recent years. Many of these cases are controversial and involve challenges to major government policies and decisions.

The conflict issue is not just a theoretical one either. Evidence shows that the Legal Aid Department has not fared well under the Home Affairs Bureau.

Whereas the Legal Aid Department and Department of Justice had comparable budgets of around HK$500-HK$600 million per year in the 20 years before 1997, the Legal Aid Department’s budget has been effectively static since, hovering around the HK$700-HK$800 million per year mark, while the Department of Justice’s has more than doubled, to over HK$1.3 billion per year.

Both the Law Society and the Bar Association report that the Legal Aid Department has become more bureaucratic and less “customer friendly” in recent years.

Clients complain that legal aid officials now seem more interested in administrative compliance than in the department’s mission of assisting those in need.

Combined with miserably low financial eligibility limits that have not even kept up with inflation, the decline in legal aid has resulted in the unacceptably high number of unrepresented litigants in local courts. Currently, more than a third of all civil cases have unrepresented litigants.

This has a negative impact on the proper administration of justice in Hong Kong, creating a huge burden on judicial resources.

When the Legal Aid Service Council was first established in 1996 to oversee the Legal Aid Department, it was seen as an interim measure. Experience shows that the council does not have enough resources and the necessary statutory power to act effectively.

It cannot manage the Legal Aid Department properly and adequately without any legally trained or independent research staff of its own. The Legal Aid Department is supposed to look to the council for policy leadership but that is, in reality, impossible when the Home Affairs Bureau is calling the shots.

With attitudes of complacency and inertia prevailing in the bureau and no one in the Legal Aid Department tasked to look into reform and improve services, it is hardly a surprise that the legal aid reforms so far have been piecemeal and ineffective.

During his election campaign, Leung Chun-ying reassured the Hong Kong people that he would do his best to promote and uphold the rule of law during his term.

Here is a golden opportunity for the administration to demonstrate the chief executive’s commitment: establish an independent legal aid authority in charge of both budget and policy – as advised by the Legal Aid Service Council in its 1998 report. We urgently need to provide greater and better access to legal services. There is a large unmet need for legal services in our community today.

Academic Dr E.J. Cohn said the law “is made for the protection of all citizens, poor and rich alike. It is therefore the duty of the state to make its machinery work alike.” The rule of law calls for nothing less.

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Dysfunctional politics

South China Morning Post | 2011-02-17 
EDT13| EDT| Voices:Hong Kong| By Dennis Kwok 

One clear sign of change that emerged from last year’s constitutional debate is the shift in the political fault line over functional constituencies. Even hardliners now concede that the current system of trade seats in the Legislative Council needs to change. They have moved from a position of denial to one of reluctant acceptance of reform.

It has taken us more than 20 years to arrive at this consensus. Unfortunately, unless these trade seats are ultimately abolished, this debate will continue to dominate our political discourse.

The conservatives say that functional constituencies serve as a counterweight against populism. All Western constitutions, they argue, have similar measures of protection. They often cite the US electoral college vote system as an example, pointing out that even the US president is not democratically elected by the people.

The electoral college vote system was designed by the founders of the United States as a way to preserve the union of what was then a fragile federation of states, by giving small rural states the same political weight as bigger states. More than 200 years later, the demographics have changed so much that small states now wield enormous and disproportionate influence over the political process, with each vote in a small state carrying on average three times more weight than a vote in other states. The US political system is in poor health because of the outdated and undemocratic features within its constitution.

Contrast this with the situation in Hong Kong, where some 200,000 citizens and corporate bodies elect half our legislators, and only 800 individuals and groups – members of the Election Committee – can vote in the chief executive election. With about 3 million voters electing the other half of the legislature – lawmakers in geographical districts – this means that, in our system, a vote in the trade seat elections carries 15 times more weight than one in the geographical polls. These figures reveal the extremity of the situation.

Checks and balances are necessary in any mature political system, but the question is, at what cost? Businesses today are often blamed for all forms of social ills when, in fact, more than 90 per cent of successful businesses are small and medium-sized enterprises that provide jobs, create prosperity and spur innovation for Hong Kong’s economy. However, the trade seats are controlled by conglomerate vested interests serving no one but those who elect them. They are seen as a symbol of privilege, and their existence ironically incites the kind of populism that their defenders most fear.

For example, the financial and banking industries employ more than 150,000 professionals in Hong Kong, yet only a handful of voters are allowed to elect the Legco representatives for these sectors. The inability to consider the wider public interests is political short-sightedness.

Furthermore, our system has in place sufficient safeguards against populism. Article 74 of the Basic Law restricts the ability of individual Legco members to introduce any bill that involves government expenditure and policy. Consent from the chief executive is required. This constitutional safeguard is reinforced by a strong middle class, a vibrant civil society, an independent judiciary and a free press. Also, our proportional representation electoral system ensures a political scene with many political parties, making coalition government a necessity for effective governance. These measures provide the necessary checks and balances. Why do we still need functional constituencies, a 19th century colonial relic, to serve such a function?

These are questions that defenders of functional constituencies are finding increasingly hard to answer. The social costs of such a system are too much to bear for Hong Kong: our political discourse becomes ineffective, and our differences over public affairs are often unnecessarily magnified, restricting our ability to find common ground.

Last year, Hong Kong failed to make any headway in efforts to abolish this outdated and undemocratic system. Yet we must not leave the question of functional constituencies to the next generation and allow this single issue to continue to plague and dominate our political discourse. The challenges ahead for Hong Kong are far too great and we must not allow this infighting to go on. Functional constituencies must be abolished to make way for a more open society in the 21st century.

Dennis Kwok is chairman of the Civic Party’s constitution and governance policy branch

Copyright (c) 2011. South China Morning Post Publishers Ltd. All rights reserved.

Lack of transparency politicises everything

South China Morning Post | 2008-06-19 
EDT15| EDT| By Dennis Kwok 

Recently, The Economist carried an article criticising Hong Kong as an international financial centre for our falling standards of corporate governance. The article focused on the resignation of David Webb from the board of the stock exchange, and how the government put its voting muscle behind its nominee, who has less experience in finance than other candidates.

Apparently, the government and the stock exchange are having quiet discussions about creating a new set of listing rules that would lower disclosure requirements. Whether standards of corporate governance have declined in Hong Kong is worth further debate, but this article highlights a deeper problem within our society. That the government frequently appoints its own people to the boards of public companies, advisory committees and other public bodies is a well-known fact of life in Hong Kong.

This mode of appointments has crept into every aspect of public life. Ironically, what you frequently hear from these pro-establishment figures is how we must not politicise everything. But, by practising their brand of non-politicisation, our society is becoming more politicised than ever. Appointments are based on political affiliation: loyalty is valued over expertise; political correctness over ability. Is pluralism dead?

The Professional Commons believes the success of the West Kowloon Cultural District project will hinge largely on the composition of its management authority. We must have suitably qualified experts, who are truly knowledgeable about arts and culture, sitting on the authority. Political considerations should not play a role.

The decision on appointments must be ultimately accountable to the people. In an international city, there is no reason why this cannot be. But, in the current climate, our recommendations will most likely fall on deaf ears.

The lack of transparency and accountability in the appointments system has generated deeply entrenched divisions within our society. Yet, if our government is at all serious about achieving its lofty goal of building a harmonious society, this can only be achieved through unity, not further division.

The controversial appointment of deputy ministers and political appointees highlights another example of this same problem. Throughout the entire process, the public has largely been kept in the dark. No one knows who made the actual decisions, let alone what criteria were used. Openness and accountability were completely non-existent in the process.

This further exasperated the public, which already felt that some of these appointees were taking a short cut and that their commitment to serving Hong Kong was in serious doubt. Everything about these appointments flew in the face of accountability and open government.

The administration’s primary aim in these appointments is to produce future political leaders. The chief executive should be careful what kind of leaders he is producing.

 

Dennis Kwok is a founding member of the Professional Commons

Copyright (c) 2008. South China Morning Post Publishers Ltd. All rights reserved.

A discriminating bill

Feburary 28, 2008

Dennis Kwok Published in the SCMP

We understand that, to be good parents, we must ourselves be examples for our next generation. As the philosopher Lao Tzu said: “Tolead people, walk beside them.” How does our government measure up to these cardinal rules of leadership? The recent debate over the Race Discrimination Bill proposed by the government provides a useful insight into this question.

The aim of the bill is to outlaw all forms of racial discrimination in our society. To advocate racial equality is a great sign of maturity for HongKong. It demonstrates moral responsibility on an issue that plagued most of the 20th century. By enacting this legislation, we would demonstrate to all that the Hong Kong people are citizens of the world,and we would have earned our rightful title as an international city.

Ethnic minorities, including Indians, Filipinos, Indonesians and Pakistanis, have contributed to the success of Hong Kong through generations of hard work, and are more-loyal citizens than many others could claim. Some of them are trilingual, with a thorough grasp of Chinese language and culture. They provide a vital economic link between Hong Kong and other Asian countries. Yet, for generations,they have felt marginalised and underappreciated for their work and contribution to society. With the enactment of the anti-discrimination legislation, they would at least have a legal guarantee for equal opportunities and know that their children would receive fair and equal treatment in our public schools and hospitals. But is that so?

The government has insisted that the bill must provide a broad range of exemptions, covering most of the administration’s activities and that ofother public authorities. Clause 3 of the bill states: “This Ordinance applies to an act done by or for the purposes of the Government that is of a kind similar to an act done by a private person.” This not only violates the legal standards set by the International Convention on the Elimination of Racial Discrimination, it effectively provides a licence for the government to engage in racially discriminatory practices in all governmental functions – such as the provision of education, health care and taxation. None of the legislation that prohibits discrimination on the basis of sex or disability provides for these exemptions for the government.

The bill also does not seek to outlaw the discrimination faced by new immigrants from the mainland. They often come to Hong Kong with nothing but the hope of making a new start and the will to work in the most humble jobs just to earn a better living. They have every right to be treated with equal respect. But the discrimination often faced by these new immigrants limits their employment opportunities and locks them in poverty without the means to escape. The tragedies we have seen in Tin Shui Wai are glaring examples of this social problem. The UN states that the objective of the International Convention on theElimination of Racial Discrimination includes the need to outlaw discrimination based on immigrant status.

Our government took the right step in introducing this bill, but why is it not willing to be bound by the same law as everyone else? If it is serious about leading the fight against racial discrimination, why does it insist on putting itself above the law and allow a legal loophole for institutional racism to thrive?

History teaches us that eliminating racial discrimination in any society requires much more than new laws; it takes years of civic education to reform people’s attitudes. With this double standard in place, how can we expect the government to take a leadership role in the education ofthe public?

Perhaps our bureaucrats fear the legal and practical implications of thebill. After all, pragmatism is the buzz word for Donald Tsang Yam kuen’s administration. But, when it comes to questions of moral values and the vision of a fair and just society, simply being pragmatic with a”get the job done” mindset is not enough. Our government must lead by example.