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CHAPTER 10 ‘One person, one vote’: The US electoral system and the functional constituencies The Association of the Bar of the City of New York Introduction We, the Association of the Bar of the City of New York, view certain developments in the Hong Kong Special Administrative Region of China (HKSAR) with great concern, in particular, the regressive interpretations of the Basic Law by the central government of China in April 2004 by which it pre-empted the question of whether there is a ‘need to amend’ the Basic Law regarding the election of the chief executive in 2007 and the Legislative Council in 2008, the manner in which such interpretations were delivered, and the barrage of intimidating personal attacks by the central government against the pro-democracy supporters of universal suffrage which accompanied these interpretations. As the debate over constitutional reform in Hong Kong intensified in 2003 and 2004, voices supportive of maintaining the electoral status quo in Hong Kong raised, at certain points, the example of the United States and its electoral system as they argued to reject the rising call in Hong Kong for the more immediate fulfilment of the Basic Law’s promise of ‘universal suffrage’. It is this reference to the US electoral system and the historical experience of the United States with the democratic ‘one person, one vote’ principle as it has evolved and expanded over the past 215 years that we will address. For many years, numerous New York law firms and hundreds of our members have been working as lawyers in their Hong Kong regional offices, and many are permanent residents. We believe they contribute significantly to the economic, commercial, and financial life of Hong Kong. In addition, many of our members have regional headquarters in Hong Kong or do extensive business there and often seek our advice regarding the benefits of locating in, relocating from, or doing extensive business in and from Hong Kong. Over the years, we have commented favourably on its independent and highly qualified judiciary, free press, active lawyers’ associations, conditions of transparency, absence of corruption and its adherence to the rule of law and common law principles that protect civil, political and commercial rights. Our experience confirms what economists can now demonstrate — that only societies with such freedoms attain and maintain economic prosperity and viable capital markets.1 Through the 1984 Joint Declaration,2 the United Kingdom and the People’s Republic of China (‘China’ or ‘PRC’) entered into a solemn compact: the return of sovereignty to China in exchange for continued maintenance of Hong Kong’s political, social, economic, and legal institutions accompanied by a high degree of autonomy, and the promise that universal suffrage would be instituted for the election of the chief executive and members of the Legislative Council. Expressly stipulated in the Basic Law implementing China’s obligations under the Joint Declaration is the commitment by China and the Hong Kong Special Administrative Region government that the fundamental rights of free speech, free press, freedom of assembly, freedom of association and freedom of religion, as well as due process, would not only continue but flourish and that the ‘ultimate aim’ of universal suffrage would be implemented for the election of both the chief executive and the Legislative Council.3 It is therefore incumbent on all interested parties, the United Kingdom (through the Joint Declaration), China (through the Joint Declaration and the Basic Law) and the HKSAR government (through the Basic Law), to maintain these basic principles in action as well as words.4 The benefits of such freedoms will accrue not only to the people of Hong Kong but to Hong Kong’s economy, as a society which safeguards such rights and freedoms is the most secure foundation upon which to build a prosperous economy. Freedom of speech, freedom of the press, freedom of assembly and freedom of association are not abstract principles embodied in the Basic Law for cosmetic purposes. Rather, they are the foundations for an informed public to choose those who would govern, assure transparency in government, and determine who would be accountable for their actions. To support these four freedoms but deny universal suffrage to the citizens of Hong Kong is to weaken or frustrate the attainment of a truly democratic society. Until these recent developments, and with certain exceptions,5 we have been gratified that Hong Kong and the People’s Republic of China generally have fulfilled their obligations under both the Joint Declaration and the Basic Law...

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