The colonial legacy lingers in the oddities of Hong Kong government. [1] In particular, the functional constituency (“FC”) are seats in the legislature that corporations and other professional bodies elect. This paper compares how Hong Kong’s two sovereigns, Britain and China, created and justified their governance structure in Hong Kong – with the FC system as the focal point. This paper adds to the existing literature by comparing and contrasting the factors that led Britain and China to rationalize the FC system – exploring more deeply the factors that seem in common. The factors behind the preservation of the FC system may be grouped into three: (1) Hong Kong’s purpose and its people fueled the perception that consensus politics was a superior fit for prosperity; (2) big business’ allied with non-local sovereign powers and (3) the sovereign promised gradual implementation of universal suffrage. Notably, each factor is “mirrored” under Chinese sovereignty as under British colonial government – at least for now.

I. Background

a. The structure of Hong Kong government

The Hong Kong Special Administrative Region (“HKSAR”) government can be roughly divided into three organs, the executive, the judiciary, and the legislature, as well as the administrative bureaucracy. [2] At the head of the executive branch, and arguably all of the three branches, is the Chief Executive, a president-like figure whose role has largely taken the place of the colonial governor. [3] The legislature, called the Legislative Council (“LegCo”) is made up of half geographically-elected members, called geographic constituents (“GC”), and half functional constituents (“FC”), elected by a mix of individual professionals, corporate bodies, depending on the specific functional constituent. [4] There are currently 35 FC seats elected from 29 FC groups, with each seat purportedly representing a prominent sector of the economy and society. [5]

b. Functional constituencies

Beyond noting that the legislature shall be composed by “elections”, the Sino-British Joint Declaration, the treaty determining the Handover of Hong Kong from Britain back to China, did not speak of FC. [6] Neither did the Basic Law provide any definition for the FC beyond the name, in its annex. [7] The structural legal framework only provides specifications of the electors and candidates for each FC, which are a mix of corporate entities and professionals. [8] In recent years, the FC system, and corporate voting in particular, has faced public backlash. [9] Some argue that the FC system goes against Hong Kong’s constitution, the Basic Law. [10] Other criticism finds the historical justifications for the FC system to be outdated and no longer applicable. [11]

II. Purpose and People Make Expert, Consensus Politics a Better Fit

a. Britain

A lack of natural resources and its geographic position made Hong Kong valuable only as a diplomatic trading post, with China’s especially grudging acquiescence. [12] Colonial Hong Kong technically had three constitutions—the Charter of April 5, 1843; the Order in Council of October 24, 1860 (annexing the peninsula of Kowloon); and the Order in Council of October 20, 1898 (adding the New Territories above the Island).[13] As later Hong Kong-born scholars put it, Britain was “not much interested in playing a civilising role for the natives”. [14] Subsequent letters regarding Hong Kong’s governance also provide evidence of British intent to run Hong Kong primarily as an economic investment. [15] Lord Stanley, Britain’s Secretary of State for War and the Colonies, wrote to Governor Pottinger that “methods of proceeding unknown in other British colonies, must be followed in Hong Kong” noting that Hong Kong was founded “not with a view to colonization, but for diplomatic, commercial and military purposes.” [16]

British officials believed that the local population – and its lack thereof, early on – called for a tight, trustee-like administration. [17] In addition to the dearth of “strong indigenous leaders” at the outset[18], Britain also took issue with the locals’ fitness to govern, finding locals “politically apathetic” [19] or lacking the capacity to direct Hong Kong’s economic prosperity[20]. Hong Kong LegCo’s oldest custom – which lasted about 100 years, until 1973 – was the “election” of unofficial members of the LegCo by the Justices of the Peace and the General Chamber of Commerce, both of which had many “business elites” as members. [21] Members of the two bodies would nominate from their own, and these nominees would then be formally, legally appointed by the Governor. [22] The custom carried long into modernity, with minor reforms like increasing the number of “unofficials”. [23] The institutionalization of the system of “unofficials” occurred in 1985. The new unofficial appointments were called “functional constituencies” (FC) by a Green Paper and White Paper published in 1985 and 1988, respectively. FC legislative seats were held out to be “economic and professional sectors of Hong Kong society […] essential to future confidence and prosperity.” [24]

b. Beijing

Hong Kong had already gained global repute as a bastion of successful laissez-faire politics. [25] Beijing believed that, by and large, the existing colonial structure was compatible with a communist sovereign, and that, more importantly, the “tried and true” system could foster further economic growth for the island and the mainland. [26] In particular, the FC system was seen as a positive institution that added “considerable professional expertise and knowledge to policy making.” [27] Further, it would “serve as a form of checks and balances against geographically elected part of the legislature.” [28] Business savviness was the key determinant of China’s political appointments in Hong Kong’s transitional political regime. [29] Chairman Deng noted that Beijing should concede a measure of sovereignty to preserve it. [30] China did not perceive all the locals to be politically apathetic—rather, some were now too Westernized in their taste for things like expanded suffrage, an appetite that Britain suddenly was interested in feeding. [31] Scholars note that Beijing kept the FC as a way to manage uncertainties with full democratization, but was also careful to concede enough to keep the offer attractive at face value to Hong Kong locals, Britain, and the world. [32]

III. Big Business Alliance with the Non-Local Sovereign

Big businesses held a measure of power over the non-local sovereign that waxed and waned throughout time. Businesspeople were always looking to gain a greater footnote in policymaking. In response, both sovereigns wooed merchants with political incentives at delicate times in the regime – like the British colony’s starting out, or China negotiating the Handover. This push-pull alliance created the FC, and would later institutionalize it as a stalwart against local demands for universal suffrage.

a. Britain

Merchants were not afraid to ask favors from the colonial government. Since the beginning of the colony in 1843, businessmen scrutinized the actions of government officials and offered their opinions on how the colony ought to be run.[33] In August 1845, the British business community in Hong Kong presented a memorandum to the Secretary of State in London, complaining of Governor Davis’ new taxation scheme; the resulting inquiry led by a Select Committee was sympathetic and recommended additional self-governance by British residents[34], which in turn spurred additional requests by businesses for greater representation in the LegCo.[35] These calls were eventually answered by Governor Bonham, who created the first two unofficial seats in the LegCo for David Jardine and J. F. Edger, both powerful merchants nominated by the Justices of the Peace, a chamber where businessmen held a number of seats.[36] Thus began a political tradition – a push-pull dynamic between business and government to expand the unofficial seats in the LegCo.[37] However, the power of business was clearly demonstrated, not the least in the how the Chinese nationals came to be represented within the British administration. The Hong Kong government gave incentives like merchant property rights and monopolistic advantages to attract Chinese merchants from the Mainland to relocate their businesses to Hong Kong.[38] The business revenue and tax dollars of Chinese firms increased in comparison to their British counterparts.[39] In 1877, Governor Pope Hennessy appointed the first Chinese member to the LegCo.[40] The result of this alliance was a limited, business-centric model of self-governance, which some scholars note was not a bargained outcome, but a “gift” from “colonial masters”.[41]

b. Beijing

The PRC decided to systematically reach out to Hong Kong’s elite businessmen and professionals to “ally” with them as a means to preserve the system of limited elections; together, they institutionalized the FC and bypassed having to deal with democratizing reform talk from Britain. [42] Some scholars frame the business-China alliance as a fluid continuation of the business-British alliance[43]; others as a distinct creature with more unsavory overtones.[44] .[45] Regardless, business and Beijing shared certain key immediate and long-term goals, with benefits for both parties.[46] Big business gained a legal mechanism for political efficacy that was not contingent on the good will of a appointing governor.[47] China needed political legitimacy (of not tampering with the existing thing) and also the capitalist expertise.[48] China “wooing” the business community began as early as the first talks of the Handover transition – Beijing put business leaders into new advisory bodies in Hong Kong in the 1980s to further its interests in institutionalizing the business community as a wall against populism and instability.[49] The backgrounds of all Hong Kong NPC and CPPCC delegates after 1997 were consistently business sector-dominated. Beijing trusted that the functional constituency would be extremely effective for HKSAR’s stability and legitimacy. [50]

III. When Does The “Mirror” Break? The Meaning of Gradual Implementation

Gradual progress is the third factor that explains not the creation, but the persistence, of FC. [51] Colonial Britain, despite its hesitancy to reform the limited electorate, followed its Charter and attempted gradual democratization. While it seems at first glance that the fulfillment of “universal suffrage” was not a constitutional mandate in colonial times, but is now mentioned in the Basic Law, the provision of “gradual fulfillment” for all practical purposes nullifies such a right, as of now.

a. Britain

Despite British officials’ lean governing style, representative government was never indefinitely off the table, and the era’s expanding liberal philosophy clouded debates about extending both citizenship and franchise. [52] Further, Hong Kong was legally a Crown Colony in status.[53] The governing mechanism of crown colonies usually underwent an evolution from top-down administrative machinery into a representative government through elections, which could lead to “full responsibility and self-government”. [54] However, letters exchanged between officials noted that Hong Kong was a unique colony, and this may have prompted colonial governors to hold off on any immediate plans starting down the road to self-governance. The Hong Kong administration chose limited, safe expansions that would not open the floodgates to universal suffrage: first to the Justices of the Peace and Commercial Chamber, next to the Chinese business elite, and then to additional representatives of other trade sectors[55]. Scholars note that these measures infused the British colonial government with legitimacy.[56]

However, the World Wars, the Victorian era, and the Labour government heralded new democratic rules on colonial representation.[57] Colonel Oliver Stanley declared in the House of Commons on July 13, 1943: “We are pledged to guide colonial people along the path to self government within the British Empire. We are pledged to build up their social and economic institutions[.]”[58] However, talks of democracy reform from London were frowned upon by Hong Kong governors and LegCos, who felt it was “too soon” given what they noted was locals’ lack of appetite for politics, civil unrest in several neighboring Asian countries, of which not the least was China. [59] Other scholars note this was due to “shadow politics” by the business elite in the LegCo and ExCo, whose favor was needed due to fear of the “collapse of business confidence” given global tensions over new communist regimes. [60]

What again gave democratization – with universal LegCo elections as a key issue[61] – a kick forward was the impending Handover, scheduled for 1997. The Foreign Affairs Committee in the House of Commons had pushed for democratization of the LegCo, but “[s]elf-interest and common sense dictated that the immediate challenge was to enable Hong Kong to weather the storm.” [62] Nevertheless, at least some in Britain saw the “administrative system” – including the FC – as a positive consolation legacy.[63] “Convergence” of the British colonial regime and the new HKSAR regime was deemed “democratic” enough.[64] The history of gradual reforms and FC elections could not be shaken; the question remains if rationalizations afterward were a case of sour grapes.

b. Beijing

Maintaining the status quo

The Basic Law’s rhetoric of gradual realization was in part what made the draft Basic Law palatable to Britain and local activists; but in reality, has been used far more by China to postpone reform. [65] Future reform was couched in terms like “in the light of the actual situation [in HKSAR]”, “balanced participation”, and “in accordance with the principle of gradual and orderly progress”, which are not further defined. [66] Post-Handover, China repeatedly noted[67] that the FC system was necessary to safeguard Hong Kong’s prosperity. [68] Various business representatives voiced agreement. [69] Pro-reform social movements before each LegCo election year did little to sway the National People’s Congress (“NPC”) and the Task Force on Constitutional Reform in Hong Kong to recommend changes. [70] The Task Force stated that there were lacked a concrete proposal for replacing the FC, and abolition would be inconsistent “with the original intention of setting up functional constituencies.”[71]

Time passed. In 2007, pro-democracy advocates again found the “no universal suffrage in 2012” message in the NPC’s 2007 report frustratingly vague.[72] The NPC explanation used the familiar language: “in light of the actual situation of Hong Kong” the FC would be kept; the FC have been “functionally smoothly and experience has demonstrated that it is conducive to the balanced participation of various strata and sectors of Hong Kong and the development of the capitalist economy.”[73] The report again alluded to gradual realization of universal suffrage, citing the date of 2017 as the proposed time.[74] In particular regarding the LegCo, the 2007 report stated that the “public” were too divided on the issue to change the FC for 2012.[75] The NPC issued a new report in August: while LegCo universal suffrage was again tabled[76], the Chief Executive elections in 2017 “may” be achieved by universal suffrage, provided Beijing approved the candidates.[77] After Hong Kong residents took to the streets in the Occupy movement, the proposed reform went to the LegCo, where pro-democracy groups refused to compromise, and, 33 pro-Beijing legislators were absent. [78] Direct elections were again tabled.

Occupy Movement, or the Umbrella Movement

Conclusion

This paper has drawn broad comparisons between Hong Kong’s two sovereigns, Britain and China, and how their similar beliefs, alliances, and promises of gradual progress shaped Hong Kong’s governance into one where corporations hold veto power in the legislature. The FC have and arguably will continue to shape Hong Kong’s present and future. For a British-made system so resilient to change for over a hundred years, something needs to crack for the FC to experience dramatic reform in the fifty-year HKSAR window[79]. Otherwise, what Hong Kong will continue to see are just reflections.

[1] Joseph Chan and Elaine Chan, Perceptions of Univeral Suffrage and Functional Representation in Hong Kong: A Confused Public ?, 46 Asian Survey, 257, 262 (Apr. 2006) available at http://www.jstor.org/stable/10.1525/as.2006.46.2.257.

[2] The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China arts. 43-104 (1990) (China), available at http://www.basiclaw.gov.hk/en/basiclawtext. [Hereinafter “Basic Law”]; Wilson Wong, The Civil Service, in Contemporary Hong Kong Government and Politics 96 (Lam Wai-man et. al. ed., 2012).

[3] Christine Loh, Civic Exchange, Government and Business Alliance: Hong Kong’s Functional Constituencies, 1, 5 (2004) available at http://civic-exchange.org/wp-content/uploads/2004/08/200408GOV_GovBusinessAlliance_en.pdf.; Lam Wai-Man, Political Context, in Contemporary Hong Kong Government and Politics 11 (Lam Wai-man et. al. ed., 2012).

[4] Legislative Council of the Hong Kong Special Administration Region of the People’s Republic of China, LegCo Today, LegCo.gov, http://www.legco.gov.hk/general/english/intro/about_lc.htm (last visited Nov. 19, 2017).

[5] Hong Kong’s dysfunctional constituencies, The Economist (Oct. 15, 2016) available at https://www.economist.com/news/china/21708702-hong-kongs-dysfunctional-constituencies; LegCo Education Service, Notes on “Legislative Council in Pictures”, LegCo.gov, available at https://www.legco.gov.hk/education/files/english/Exhibition_Panels_Supplementary_Notes/Composition-of-the-LegCo.pdf.

[6] Sino-British Joint Declaration (f/k/a Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong), signed Dec. 1984, available at http://www.cmab.gov.hk/en/issues/joint.htm.

[7] The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China arts. 43-104 (1990) (China), available at http://www.basiclaw.gov.hk/en/basiclawtext. [Hereinafter “Basic Law”]; Wilson Wong, The Civil Service, in Contemporary Hong Kong Government and Politics 96 (Lam Wai-man et. al. ed., 2012).

[8] Simon Young & Anthony Law, Priviledged to vote: Inequalities and anomalies of the FC system, in Functional Constituencies: A Unique Feature of the Hong Kong Legislative Council, 59, 80 (Christine Loh ed., 2004).

[9] See, e.g., Alex Lo, Reform Legco’s functional constituencies, South China Morning Post (July 16, 2014) http://www.scmp.com/comment/insight-opinion/article/1555003/reform-legcos-functional-constituencies.

[10] The “one person one vote” principle has been articulated within the Basic Law Article 39 with explicit reference to Article 25 of the International Covenant on Civil and Political Rights (ICCPR) referencing “universal and equal suffrage”. Basic Law, supra note 2, art. 39. Corporate voting promotes phenomenon like “packing”, where one individual that has interest or is part of several corporate entities can thus elect multiple authorized representatives who each cast a vote. Ultimately, it translates to that corporate-affiliated individual being represented by multiple LegCo seats. A suit regarding the disparity in constituency sizes between the geographic constituencies and FC was Lee Miu Long v. Attorney General. Hong Kong’s highest court ruled that the disparity was justified due to Hong Kong’s electoral system still being in its “embryonic stage” Young & Law, supra note 8, at 80.

[11] Id. at 80-81.

[12] Among other things, China was deeply worried about illicit opium funneled through Hong Kong. See Loh supra note 3, at 4 British merchants were honored in their own country, and “were then making similar demands everywhere [to trade]”. G.B. Endacott, Government and People in Hong Kong 1841 – 1962: A Constitutional History vi (1964).

[13] Norman Miners, the Government and Politics of Hong Kong 64-65 (1981). [Hereinafter “Miners”].

[14] Loh supra note 3, at 5; see also Endacott, supra note 12, at v (“Sir Hercules Robinson, Governor 1859-65, remarked: ‘Indeed, Hong Kong is totally unlike any other British dependency and its position is in many respects so grotesquely anomalous’”).

[15] Sir John Davis, the governor following Pottinger, criticized that there were too few people in the councils and how their membership overlapped. He proposed to expand LegCo from two individuals to five, but others rebuked him, noting that the Governor’s Instructions from Whitehall were to deliberately keep these councils small for the purpose of giving the Governor greater authority. Thus Davis reorganized ExCo and LegCo to have three members each. See Endacott, supra note 12, at 41 (“Sir James Stephen argued that the it was barely possible to err on the side of reducing the size of the Council and thought that the Governor could bring all the local experience ‘at and to its deliberations’, and contended that a large Council was useless as weakinening responsibility without adding any free or popular element, ‘for which kind of principle there is no scope.”).

[16] Id. at .0. e for War and the Colonies, hree membersnger, as the Politics a Better Fitl Review of Education, is issue after the 2017 e21.

[17] Loh supra note 3, at 4 (“The first 50 years of British rule was complicated by the fact that there was not much of a powerful local elite that the British could cultivate and negotiate with, as they did in other parts of the British Empire.”).

[18] “Hong Kong became a colony before there was a significant settled population. This meant that, in contrast to other territories, the colonial government could not rely upon indigenous leaders as collaborators of colonial rule.” See Mark Bray & W.O. Lee, Education, Democracy and Colonial Transition: The Case of Hong Kong, Int’l R. of Education, 541, 545 (Nov. 1993) available at http://www.jstor.org/stable/3444980; see also Richard C. Bush, Hong Kong in the Shadow of China: Living with the Leviathan 76 (2016).

[19] Some scholars find that the local population’s feelings regarding politics included apathy or aversion. The roots of these feelings spanned from the financial incentives for moving to Hong Kong, Chinese Confucian scholar-governance culture, or refugees’ lingering trauma from the civil uprisings in mainland China. See Bray & Lee, supra note 18, at 545-46, 558; see also Endacott, supra note 12, at vi (“The Chinese were accustomed to political despotism at the centre coupled with – in theory at least – benevolent local administration by the scholar official, and so they did not fret over the absence of the Western forms of political liberty in Hong Kong.); Shui-hing Lo, Decolonization and Political Development in Hong Kong: Citizen Participation, 28 Asian Survey 613, 615-16 (June 1988) available at http://www.jstor.org/stable/2644656; Fu-Lai Tony Yu, Studies in Entrepreneurship, Business and Government in Hong Kong: The Economic Development of a Small Open Economy 163 (2006).

[20] See Bray & Lee, supra note 18, at 550.

[21] The Justices have done so since 1849; the Chamber since 1883. Endacott, supra note 12, at n. 24; Miners, supra note 13, at 71.

[22] The same system of appointments drew ire in 1970, where critics noted that “unofficials” were “drawn from a narrow class”, “directly representative of the interests of big business and banking, the industrialists and the employers” and were “without exception the representatives of wealth.” Since the thirteen unofficial seats included seven industrialists, merchants and managing directors, two lawyers (who also held a number of directorships), one banker and company director, one architect, and two educationists, the criticism appeared to be justified. See Miners, supra note 13, at 177-78.

[23] See generally Endacott, supra note 12.

[24] “The present informal system of selecting Unofficial members of the Legislative Council from functional constituencies should be developed into a formal representative system for the election of one or more representatives from each functional constituency to serve on the Legislative Council.” Green Paper: The Further Development of Representative Government in Hong Kong (July 1984), available at https://archive.org/details/greenpaperfurthe00hong. at 37.

[25] See Yu, supra note 19, at 163-64 (“Milton Friedman cites Hong Kong’s economic achievement as a classic illustration of the benefits of free market policy. Rabushka describes Hong Kong as the last bastion of laissez—faire. However, many scholars, particularly from political science, argue that laissez-faire policy in Hong Kong is a myth. Vogel cautiously maintains that Hong Kong’s success was “aided by the government, whose civil servants greatly facilitated industrial planning and the development of local industry”. More radically, Schiffer, Castells, Henderson and Appelbaum and Henderson argue that the HK government has substantially, though subtly, intervened in HK’s economic affairs.”)

[26] Loh supra note 3, at 9. See also Bray & Lee, supra note 18, at 544 (“Further, even though in many territories democratisation took place in the process of decolonisation, the conclusion of colonial rule was marked by a lateral transfer of power, i.e., a shift of responsibility from one elite to another.”).

[27] Baohui Zhang, Democratizing Hong Kong: Functional Represenatation and Politics of Institutional Change, 84 Pacific Affairs 643, 651 (Dec. 2011) available at http://www.jstor.org/stable/23056126 (“The colonial government clearly indicated a corporatist motivation for the new functional representation system.”).

[28] Id. Regarding the constitutional powers that China actually had over Hong Kong via the Basic Law, the perception in 1991 was that it was a more limited power than colonial Britain exercised through the Letters Patent. Norman Miners, the Government and Politics of Hong Kong 55, 64 (1991).

[29] Chief Executive Tung Chee Hwa was described by the former Financial Secretary Henry Tang as a former shipping tycoon, “philosophy of governance” as big market, small government, which sounds very much like maximum support, minimum intervention.77 Loh supra note 3, at 14.

[30] Deng Xiao Ping argued that the reunification brought about by peaceful means was “essential” to the economic development of China that. “Peaceful reunification would mean that China would continue to benefit from Hong Kong’s contribution to the modernization of China as well as to provide the stability that China itself needed for its new policies.” Yash Ghai, Hong Kong’s new constitutional order: The resumption of Chinese sovereignty and the Basic Law 139-40 n. 3 (1999); see also Richard C. Bush, Hong Kong in the Shadow of China: Living with the Leviathan 86 (2016). (“The apparent logic operating here was that stability in Hong Kong was a function of continued economic growth and that the business community had delivered on those expectations for decades.”); Bray & Lee, supra note 18, at 557 (“The economic value of this colony made Hong Kong important not only to Hong Kong residents, but also to Britain and to China. This has provided the context for depoliticisation in Hong Kong.”).

[31] Bush, supra note 30, at 77 (“By the 1980s the colonial government was undermining its closed-door, consultative approach to government by initiating democratization of the political system.”). The public seemed increasingly disillusioned to the “ideological weapon of ‘economism’”; co-opted business elites struggle to defend the pro-business policy agenda in the public sphere. Brian Fong, State-Society Conflicts under Hong Kong’s Hybrid Regime Governing Coalition Building and Civil Society Challenges, 53 Asian Survey, 854, 873 (Oct. 2013) available at http://www.jstor.org/stable/10.1525/as.2013.53.5.854.

[32] Chairman Deng stated to Prime Minister Thatcher on Dec. 1984: “If we had wanted to achieve reunification by imposing socialism on Hong Kong, not all three parties would have accepted it. And reluctant acquiescence by some parties would have led to turmoil. Even if there had been no armed conflict, Hong Kong would have become a bleak city with a host of problems, and that is not something that we would have wanted.” See Ghai supra note 30, at 140 (citing Deng Xiaoping, On the Question of Hong Kong (1993)); see also Zhang supra note 27, at 661 (“Beijing’s insistence on keeping the functional representation system is motivated by its desire to manage the political uncertainties of Hong Kong’s democratization. This concern is fundamentally an outcome of Beijing’s mistrust of the democrats, its uncertainty of their loyalty to China and their acceptance of Chinese sovereignty over Hong Kong.”).

[33] Yu, supra note 19, at 167.

[34] “The immediate effect of the recommendations was to encourage the merchant community in HK to renew their demands for relief from financial burdens and for constitutional reform.” For example, on January 1949, “the leading inhabitants of the Colony” sent a petition to Parliament alleging that nothing had been done to implement the 1847 Select Committee’s Report, and no share in legislation had been given. Endacott, supra note 12, at 43-44.

[35] Endacott, supra note 12, at 45. For example, merchants noted that: “The common right of Englishmen to manage their local affairs” and asked for greater self-government like municipal councils. Sir William Robinson questioned whether the prosperity of Hong Kong would have been without the lean appointment system. See Endacott, supra note 12, at 120 (debating if “[t]here were enough ‘gentlemen’ in Hong Kong to form a municipal council”)

[36] Yu, supra note 19, at 169. Governor Bonham thought such members advantageous because they would “provide information which would be useful to government, the residents could make their wishes known through them, and they would assist the gov’t to explain its policy to the community.” Endacott, supra note 12, at 45. Governor Bowring in a private letter in 1855, wrote he was “giving importance to the Legislative Council as an instrument of great value. I found it an absolute nullity and that it had never been consulted by my predecessors on the all important questions of income and disbursement.” Endacott, supra note 12, at 47.

[37] Unofficial members of LegCo “invariably” were leading British merchants throughout 1859-77. Endacott, supra note 12, at 89. In the open petitions of 1894, 1916 and 1919, the predominantly British merchants campaigned for “institutionalizing their representation”, but were repeatedly rejected by the London and Hong Kong governments. Brian C. H. Fong, Hong Kong’s Governance Under Chinese Sovereignty: The Failure of the State-Business Alliance After 1997 n.n. 2, 3 (2014). See also Loh supra note 3, at 6; Yu, supra note 19, at 170 (Governor W.H. Marsh in 1886 stated: “It seems to have a custom since Hong Kong was a colony for the senior partner in this, the largest mercantile firm in China, to have a seat in the Legislative Council and I have followed tradition”).

[38] Loh supra note 3, at 6.

[39] By 1881, only 3 of the top 20 ratepayers in the colony were European firms. The British merchant family, the Jardines, fell to fourth. The rest were Chinese firms or individuals. Yu, supra note 19, at 170.

[40] Yu, supra note 19, at 171. Also, Chinese nationals took over more Crown property leases. Endacott, supra note 12, at 91.

[41] Directly-elected members in the LegCo was a gift from the “colonial masters, not the result of a Hong Kong lobby for democracy.” Chinese business elite in Hong Kong, “which serves as the fulcrum of consultative colonialism, largely shies away from full-fledged Western democracy. Hong Kong is ‘an admirable, successful, prosperous, and reasonably free society, but not a democracy.’” Winberg Chai, The Future of Hong Kong: A Countercyclical View, 17 Asian Affairs 123, 126 (1990) available at http://www.jstor.org/stable/30172347.

[42] China’s selection of individuals to serve on transitional boards was an “integrated exercise”, where status markers predominantly sought politically-influential business elites or those with close connections to business. Leo F. Goodstadt, China and the Selection of Hong Kong’s Post-Colonial Political Elite, 163 The China Quarterly 721, 727 (2000) available at http://www.jstor.org/stable/655796 (“The Chinese bureaucracy handling Hong Kong affairs came to believe that tycoons and taipans controlled the levers of power.”); D.J. Dwyer, The Future of Hong Kong, 150 The Geographical J. 1, 9 (1984) available at http://www.jstor.org/stable/633917 (“In recent months, China has taken up the position that the Governor of Hong Kong, Sir Edward Youde, who has been participating directly in the talks in Beijing, is not recognized as representing the Hong Kong people. A good deal of direct consultation with various Hong Kong groups summoned to Beijing has been going on and this has further complicated the assessment of the situation within Hong Kong”).

[43] This government-business partnership continued even as control of major firms shifted from Britons to ethnic Chinese. Bush, supra note 30, at 76. “China maintained British administrative model in the territory.” Yu, supra note 19, at 172.

[44] In the late 1980s, an “unholy alliance” had been formed between Hong Kong’s businesspeople and Beijing. The common interest was to stem what other members of Hong Kong society, namely grassroots and service professionals, thought to be Beijing’s democratic promise. Alvin So, Hong Kong’s Problematic Democratic Transition: Power Dependency or Business Hegemony?, 59 The J. of Asian Studies, 359, 371 (May 2000) available at http://www.jstor.org/stable/2658660. However, unlike the British colonial era “”when the co-opted business elites were widely seen as ‘respectable intermediaries’ representing the Chinese community and helping the colonial state to carry local opinion”, the public’s image of business is negative. Fong, State supra note 31, at 872.

[45] Bray & Lee, supra note 18, at 556 (citing J.O. Friederichs, Whose Responsibility? The Impact of Imminent Socio-Political Change on Hong Kong Education, 37 Int’l R. of Education 193, 194 (1991)). Scholars have alluded to the comfortable position businesses occupied in political power, in addition to economic incentives. Bush, supra note 30, at 77-78. Regarding constitutional reform, one property tycoon said in 2004: “A lot of us are pretty happy with the current system. Nothing major needs to be changed I believe that, structurally speaking, the status quo is the best way to go.” Loh supra note 3, at 21.

[46] “[Various groups and individuals in the pro-Beijing United Front] proved an effective instrument for Beijing to manage risk in a complex transitional environment that was relatively unfamiliar to the CCP.” Bush, supra note 30, at 80. Local capitalists gain political prestige, but also “an unprecedented institutionalized channel to gain direct access to top Beijing leaders.” Fong, HK Governance supra note 37, at 212.

[47] Fong, HK Governance supra note 37, at 199.

[48] “For the Chinese government, the maintenance of the state–business alliance after 1997 is central to its governing strategy in Hong Kong”. Id. at 184. “[This] method was to kill two birds with one stone – making sure that a substantial number of pro-Beijing business and professional legislators will be returned by functional constituencies for providing stable political support to the Chief Executive, and also limiting the potential political influences of those pro- democracy legislators returned by direct elections in the geographical constituencies.” Id. at 197. To ensure that selection processes would produce results to CCP’s liking and guarantee a central role for its loyalists, it drafted the Basic Law to properly engineer the electoral system to give extraordinary power to its loyalists. For the selection of the chief executive, the key institution was the election committee and for LegCo, it was functional constituencies, or FCs.” Bush, supra note 30, at 80.

[49] “Leaders of larger corporations, who were previously not deemed to be patriotic, became members of the National People’s Congress and Chinese People’s Political Consultative Conference.” Bush, supra note 30, at 77.

[50] Within Hong Kong the NPC delegation’s businessmen occupied an average of 43.7 per cent of the total number of seats, while the representation of the business sector within the CPPCC delegation was more overwhelming, occupying 70.8 per cent of seats. Fong, HK Governance, supra note 37, at 212.

[51] No scholar seems to have written about the element of “gradual” progress in expanded democratic elections compared between colonial Hong Kong and present-day Hong Kong.

[52] The 19th century saw liberalism and expanding democracy in the United Kingdom and elsewhere in the world. Franchise to those of pure British descent and those holding British citizenship was an early concession. However, universal suffrage would have marked the end of the colonial era. Indirect elections, with a limited electorate, was a compromise. Leo F. Goodstadt, The historical role of functional constituencies, in Functional Constituencies: A Unique Feature of the Hong Kong Legislative Council, 42-43 (Christine Loh ed., 2004).

[53] Endacott, supra note 12, at vi.

[54] The form of Crown Colony government varied in detail but usually at a later stage some form of representative government through elections was instituted as the prelude to self-government. Endacott, supra note 12, at 19. Hong Kong individuals seemed to expect the same treatment. “In the colonial government’s original conception, the functional constituency was meant to institutionalize an informal consultative system that the colonial government had frequently used in the determination of public policies. The move was welcomed at the time by most people in Hong Kong and considered to be a step toward eventually achieving representative government.” Chan supra note 1, at 259.

[55] Endacott, supra note 12, at 103, 120; see also Goodstadt, History, supra note 51, at 43-46; Loh supra note 3, at 7; Miners, supra note 13, at 179.

[56] The British hoped that more diversity of viewpoints in the LegCo would allow it to acquire greater prestige, and greater legitimacy. “Such a Council may be more cantankerous, but in the long term wit will probably bring greater stability to the regime.” Miners, supra note 13, at 179. Apart from ExCo and LegCo, a larger number of these elites were put on a range of government committees with interlocking memberships “so that they felt consulted on policies. These small, closed bodies became an essential characteristic of the colonial government as the appointment system evolved.” Loh supra note 3, at 8-9.

[57] Endacott, supra note 12, at 184.

[58] Id.

[59] Brian Hook, British Views of the Legacy of the Colonial Administration of Hong Kong: A Preliminary Assessment, 151 The China Quarterly 553, 559 (Sep. 1997) available at http://www.jstor.org/stable/655253.

[60] Dr. Steve Tsang wrote the “most authoritative account” of “the first betrayal of London’s pledges for democracy” which occurred in the post-WWII, 1940s and 1950s era. He attributes the failure of democratic reforms sweeping Hong Kong to be because the Hong Kong government needed to be on big business’ good side, as they feared economic downturn given the Korean War, and Western embargoes to China. Goodstadt, History, supra note 51, at 44-46; see also Hook supra note 59, at 558.

[61] See, e.g., Bush, supra note 30 at 31 (“When it came to representative government, the key argument was over the mechanisms that would be used to select the chief executive and the Legislative Council.”).

[62] Hook supra note 59, at 561.

[63] Id. at 566.

[64] Britain covered its tracks by stressing the need for “convergence” between Britain’s pre-1997 political reforms and China’s post-1997 political order. However, a dispute later ensued over whether the direct elections in 1988 constituted a “major constitutional change,” and Lu Ping, the Chinese official in charge of Hong Kong affairs, issued a threat that in 1997, Beijing would overturn any British change that it did not like. This was a threat that Percy Craddock, who controlled Hong Kong policy in London, respected and used to stave off initiatives that he regarded as too radical. Bush, supra note 30, at 36.

[65] Contemporary scholars, mirroring the public, were more hopeful for reform than their current counterparts. See, e.g., Zhang supra note 27, at 662 (“If this process of confidence building leads to increased mutual trust, Beijing’s concerns about the political uncertainties in Hong Kong could also be diminished. If so, Beijing might be willing to work with moderate democrats to significantly reduce the role and power of functional representation in Hong Kong.”); see also Hook supra note 59, at 558-59.

[66] Basic Law, supra note 2, art. 45 and 68.

[67] In a speech in June 2007, President of the NPC, Wu Banguo, made “explicit remarks about the future of functional representation”, reiterating “support for so-called balanced participation”. Zhang supra note 27, at 644. In 2004, amidst public calls for universal suffrage, the NPC decided that the Chief Executive should first prepare a report and submit it to them. After the report came on April 15, on April 26, the NPC “formally ruled out universal suffrage for 2007 and 2008.” The NPC explicitly notes in the report that the 50:50 ratio between FC and GC should be maintained for the 2008 LegCo elections Loh supra note 3, at 2. In 2007, the NPC issued another report regarding the progress for universal suffrage in the 2012 elections. The NPC report reiterates several times the “principle of gradual and orderly progress”, and in conjunction with other catchphrases: “specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress.” 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 the Year 2012 and on Issues Relating to Universal Suffrage (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 29, 2007)(translated) at 4-5, available at http://www.cmab.gov.hk/cd/eng/basic/pdf/decision.pdf. [HerasC report itselfy’asic Law,e LegCo 2007)authority on “Y. Times fusing the compromise, and, controversially, 33 pro-Beijin

[68] In 2002, Chinese officials stressed that “Hong Kong is a commercial city” and that “functional constituency elections is an effective way to ensure that people from all walks of life can have balanced participation in political life”. See Loh supra note 3, at 2 (citing edited transcript in BBC Monitoring Asia Pacific, “Chinese vice-premier warns against democratic elections in Hong Kong”, BBC (June 26, 2002)).

[69] A property tycoon said in 2004 in a speech to the American Chamber of Commerce: “A lot of us are pretty happy with the current system. Nothing major needs to be changed I believe that, structurally speaking, the status quo is the best way to go”. Ronnie Chan, Chairman of Hang Lung Properties, on 28 April 2004. In another case, a tycoon asserted that: “Even if some local business are currying favour from Beijing, benefits received are private to those individuals and are economic in nature. It is no one’s business.” Loh supra note 3, at 21.

[70] Young & Law, supra note 8, at 93-94.

[71] Id.

[72] See, e.g., Bush, supra note 30, at 97 (“In the decision it made on electoral reform in Hong Kong in December 2007, the [NPC] sent an ambiguous message regarding democracy and universal suffrage in Hong Kong.”).

[73] “By making clear the universal suffrage timetable and clarifying the way forward for Hong Kong’s constitutional development, we will enable all parties concerned to work towards this ultimate aim collectively, reduce contentions within the Hong Kong community, focus energies on furthering economic development, improve livelihood and promote the long term prosperity and stability of Hong Kong.” The Explanations on the Draft 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 the Year 2012 and on Issues Relating to Universal Suffrage (by the Standing Comm. Nat’l People’s Cong., Dec. 26, 2007)(translated) at 8, available at http://www.cmab.gov.hk/cd/eng/basic/pdf/explanation.pdf.

[74] “By 2017, Hong Kong will have returned to the motherland for twenty years. […] By that time, quite a number of elections for the Chief Executive and the Legislative Council will have been held, and much valuable experience will have been gained through gradual and orderly progress.” Id.

[75] “In view of the fact that the Hong Kong community still hold diverse views on how the Legislative Council should be formed by universal suffrage, this has to be further discussed. Hence, the Draft Decision does not cover this issue.” Id. at 12.

[76] Familiar language includes: “This is consistent with the principle of gradual and orderly progress in developing a democratic system that suits Hong Kong’s actual situation and conforms to the majority view in the Hong Kong community.” Id.

[77] Cautionary language interspersed the report, along with a note that the NPC would retain authority on “certain core issues”. “The formulation of the method for selecting the Chief Executive by universal suffrage must strictly comply with the relevant provisions of the Hong Kong Basic Law, accord with the principle of ‘one country, two systems’, and befit the legal status of the [HKSAR]. It must meet the interests of different sectors of the society, achieve balanced participation, be conducive to the development of the capitalist economy, and make gradual and orderly progress in developing a democratic system that suits the actual situation in Hong Kong. […] [The NPC] finds it necessary to make provisions on certain core issues concerning the method for selecting the Chief Executive by universal suffrage, so as to facilitate the building of consensus within the Hong Kong community and the attainment of universal suffrage for the selection of the Chief Executive smoothly and in accordance with law.” Id.

[78] See, e.g., Wilfred Chan, Hong Kong legislators reject China-backed reform bill, CNN (June 19, 2015) http://edition.cnn.com/2015/06/18/asia/hong-kong-reform-vote/index.html.

[79] Hong Kong retains its SAR status until 2047. What will occur then is a full return, but democracy activists have suggested they will seek a referendum. See, e.g., Chan, supra note 78.