By Jason Buhi

All other things being equal, legislatures are designed to serve as the branch of government that best represents the will of the people. Hong Kong’s Legislative Council (LegCo) does not fulfil that fundamental objective because 30 of its 70 seats are reserved for corporate special interests known as “functional constituencies.”

Opaque, arbitrary, usually small in size, and vulnerable to co-optation, their existence prevents the people of Hong Kong from translating electoral majorities into representative governance.

The perpetuation of this system is a proximate cause of the cycle of civil disobedience that now defines Hong Kong, but where did this complex and cumbersome substitute for universal suffrage come from? Although adopted by China, it is not of China. And though it is clearly a vestige of the colonial regime, it is not of Britain either.

Photo: May James.

Functional representation was fashioned in the late 19th Century as the Roman Catholic Church responded to the collapse of loyal anciens regimes across Europe. The Vatican sought to retain influence by promoting corporatism as an alternative to capitalism and communism.

Two Papal encyclicals — Leo XIII’s Rerum Novarum (1891) and Pius XI’s Quadragesimo Anno (1931) — outlined an approach derived from the medieval guild system. These writings reference the allegedly harmonious and ordered nature of feudal society, where associations of craftsmen monopolised industries and the fundamental relationship was that of lord and peasant.

Pius XI’s Quadragesimo Anno and Leo XIII’s Rerum Novarum.

As intended, the idea took root in Europe’s underdeveloped Catholic periphery, where liberal ideas were being translated into a political context historically more willing to accept divine authority, absolute monarchs, and a hierarchical view of social relations. The primary recipients of this ideology were Italy, Spain, and Portugal, all of which used it to justify and facilitate the rule of fascist dictators in the 20th century.

Corporatism’s most enthusiastic proponent was Antonio Salazar, Portugal’s dictator from 1932 until his death in 1972. Under his supervision, Portugal adopted the world’s first constitution structured around functional representation in 1933. This is the earliest known relative of Annex II of the Hong Kong Basic Law, but there are fundamental differences.

Unlike Hong Kong, Portugal had a bicameral legislature. One of its houses, the Câmara Corporativa, was composed of aristocrats appointed from twelve functional constituencies. Still, Portugal’s corporate chamber never enjoyed voting rights. It only provided technical advice and produced non-binding opinions to assist the work of the other chamber, which was elected by universal suffrage.

Portugal’s Câmara Corporativa. Photo: parlamento.pt.

Functional representation came to China because Portugal mandated it in all of its colonies. Unlike the domestic arrangement, in colonial legislatures, the functional representatives were allowed to vote in order to reinforce the governor’s control. Indeed, the architect and first President of Portugal’s Câmara Corporativa was Eduardo Marques, a man who never forgot that popular protests had forced him to resign his post as Governor of Macau in 1910.

When a military coup overthrew the dictatorship in 1974, the new junta’s first laws terminated functional representation at home and abroad. “Whereas the legislative assemblies of the overseas provinces have been constituted in a manner which conflicts with the principles (of the revolution and) formed according to criteria which cannot today be peacefully accepted,” they were dissolved by a decree dated 17 August 1974.

Within two years Portugal renounced its entire empire, except for one colony. The Chinese Communist Party refused Lisbon’s offer to exit Macau, officially declaring its intention to recover Hong Kong first. Unofficially, the Party’s United Front had already acquired effective control of Macau during the 1-2-3 Incident in 1966. Because Macau was relatively stable and the Portuguese had no resolve to impose their will abroad, the previous order was retained with China’s blessing.

Eleven years later, before the ink had dried on the Sino-British Joint Declaration, functional representation was transplanted across the Pearl River Delta. So it came to pass that an instrument of governance preferred by Europe’s early 20th Century dictatorships was adopted in Hong Kong.

Basic Law. File photo: GovHK.

Although functional constituencies actually added a semblance of democracy to Hong Kong’s political landscape in 1985, noone is fooled any longer. The system is being targeted by Hong Kong’s demonstrators because it lends itself to easy capture by United Front forces, denies individuals the dignity of the “one person, one vote” principle, and presents a skewed view of livelihood issues to the powers-that-be. As in other countries in other times, Hong Kong’s functional representatives continuously find themselves on the wrong side of popular will.

It seems absurd that this anachronistic system continues to exist in the world, let alone promoted by a nation whose constitution proclaims its opposition to “imperialism, feudalism, and bureaucrat-capitalism.” Portugal terminated its experiment with functional representation in 1974, and Taiwan did the same in 2000. It is time to bring Hong Kong into the 21st Century by realizing the pledge enshrined at Article 68 of the Hong Kong Basic Law, declaring “the ultimate aim is the election of all the members of the Legislative Council by universal suffrage.”

“Asia’s World City” deserves a modern legislature. Allowing robust debate within a fairly-constituted assembly would help to stabilize Hong Kong by building consensus, crafting better quality legislation, and who knows… it might even mitigate the polity’s recurring need to express itself in the street.

Jason Buhi earned his Ph.D. from the HKU Faculty of Law in 2017. He is now an assistant professor at Barry University’s Dwayne O. Andreas School of Law in Orlando, Florida, where he teaches constitutional law.