Hong Kong

IMMIGRANT VOTING RIGHTS IN HONG KONG

The Immigrant Voting Project and
New York University Law Students for Human Rights

In Hong Kong, the right to vote arises from a person’s eligibility for permanent residence, not from the person’s citizenship. Hong Kong places significant legal restrictions on who is allowed to be a permanent resident with voting, but makes no distinction among permanent residents during the duration of their status.

By Sonia Lin

Non-Citizen Voting in Hong Kong

Voting is a relatively recent right in Hong Kong, initiated only towards the end of the British colonial period (1842-1997) and enlarged somewhat after the handover to the People’s Republic of China.  For this “special administrative region” of China, the right to vote is not tied to citizenship. Chinese citizenship, after all, does not entitle persons to cross the border from the mainland and settle in Hong Kong, which controls its own borders and immigration policies independently from Beijing.  Instead, the right to vote arises from a person’s permanent residence in Hong Kong, which is a distinct concept from the person’s citizenship. 

Non-citizen eligibility to vote, then, is closely related to Hong Kong’s immigration laws and cannot be separated from the movement for universal suffrage and direct election of the chief executive.  While voting by persons holding foreign passports has gone largely unchallenged, there is some indication that increasing appeals to patriotism may make non-citizen voting an issue of debate in the future.        

Voting Rights in Hong Kong

The colonial government started holding elections for some lower-level council positions in the 1970s, but initially restricted the vote to taxpayers with a secondary education or higher.[1]  Not until after the signing of the 1984 Sino-British Joint Declaration outlining terms of the handover did the British begin introducing substantial democratic reforms in Hong Kong.  Plans for further democratic reforms were drafted into Hong Kong’s Basic Law, its mini-constitution, which specified that universal suffrage and direct election of the chief executive were goals towards which Hong Kong should aspire and ultimately achieve.

In 1985, elections were instituted for the Legislative Council (LegCo), which previously had been advisory in nature only and whose members were appointed by the governor of Hong Kong.  Initially, representatives to the LegCo were not elected by people based on their geographic residence; instead, they were elected by “functional constituencies,” whose electors represent certain professional, commercial or industrial interests.  It was not until 1991 that geographic constituencies began electing some representatives to the LegCo.    

Today, functional constituencies elect half the members of the 60-member LegCo.  Geographic constituencies elect the other half through a system of proportional voting.  The number of electors within each functional constituency has fluctuated over time but has remained limited.  Currently, most functional constituencies have less than 10,000 voters.[2]  And total members of all functional constituencies remain at or just under 200,000.[3]   

Who May Vote

The right to vote accompanies a person’s permanent resident status in Hong Kong, not their citizenship. 

This distinction stems from the “one country, two systems” rule established with the 1997 handover of Hong Kong back to China.  Although the vast majority of Hong Kongers are Chinese nationals, they have no desire to see large-scale migration from the mainland, common nationality notwithstanding.  The Hong Kong government controls border and settlement policy, and only Chinese people meeting certain requirements have permanent residence in Hong Kong, with its attendant right of abode.  In this political context, the right to vote is logically tied to a person’s permanent residence, not citizenship. 

Hong Kong permanent residence confers many of the rights that Americans might see as similar to those linked to U.S. citizenship.  All permanent residents in Hong Kong hold the right to live there and, at 18 years of age, the right to vote.  Both Chinese nationals and non-Chinese nationals may obtain permanent residence in Hong Kong. Non-Chinese nationals, however, must make an application for this status, unlike Chinese citizens, and they may lose their right of abode under certain conditions, such as prolonged absence.[4]

In this respect, permanent residence for non-Chinese nationals in Hong Kong is more aptly compared to U.S. permanent residence status for foreign passport holders, albeit with voting rights and even the right to run for political office.  What we see in Hong Kong, then, is a legal distinction made between groups of permanent residents who are allowed to gain or lose this status, but no distinction made between the rights enjoyed by permanent residents during the duration of their status.        

Who May Not Vote

Though non-Chinese nationals may obtain permanent residence and the right to vote in Hong Kong, in reality, many foreign residents of Hong Kong never become eligible for permanent residence. 

Non-Chinese nationals ordinarily must reside in Hong Kong for seven years to be eligible for permanent residence.  For many of the foreign nationals living and working in Hong Kong, however, restrictions on the definition of “ordinary residence” prevent them from accruing the necessary time to become eligible to apply for permanent residence. 

Under the Immigration Ordinance, a person is an ordinary resident if s/he remains in Hong Kong legally, voluntarily and for a settled purpose, such as education, employment, or residence. 

The law specifies classes of people who are not ordinary residents.  These include those unlawfully present, refugees, consular officials, and people in prison or detention pursuant to any court order.  These categories of restricted persons also includes contract workers from outside Hong Kong and foreign domestic helpers, the latter group of which makes up a substantial percentage of the non-Chinese population in Hong Kong. 

Much of Hong Kong’s population growth can be attributed to migration, [5] and many migrants come to this Special Administrative Region of China for work purposes, often domestic work.  Domestic helpers from the mainland are not allowed because of fears that this might create an avenue for circumventing the existing one-way permit system for settlement in Hong Kong. 

According to government statistics, Chinese nationals make up approximately 95% of the Hong Kong population, which reached around 6.8 million in 2003.  Non-Chinese passport holders number slightly more than half a million, of which the largest group were from the Philippines (2.1% of total population in 2001).[6] 

At end of April 2004, there were 220,910 foreign domestic helpers in Hong Kong, of whom 53.97% came from the Philippines, 42.17% came from Indonesia, and 2.15% from Thailand.  The foreign domestic helper population increased 1.86% from the same period in 2003.[7] 

The Future of Democratic Elections in Hong Kong

The extension of democratic elections in Hong Kong remains a contested issue, and the right of non-Chinese nationals to vote may come to play a more controversial role in the continuing battle between pro-democracy and pro-Beijing groups in Hong Kong. 

According to some experts on the political situation in Hong Kong, the last election in 2004 was preceded by months of intimidation from Beijing, prompted largely by large-scale demonstrations 2003 against a new security law proposed by the Beijing-friendly chief executive and later retracted.[8]  Human Rights Watch, among others, has reported on threats made against prominent anti-government media figures and the practice of some pro-Beijing employers to require their employees to use their cell phones to photograph their voting ballots as proof of voting correctly.[9]  

 Turnout for the 2004 election reached its highest point ever, 55.6% of registered voters.  However, because of electoral system’s design and, to a lesser degree, miscalculations in the campaign strategy of pro-democracy groups, candidates from the pro-democratic camp garnered 62% of the vote, but only got 41% of the seats in the Legislative Council.[10]

Worries abound about whether Hong Kong’s limited democracy will ever be extended to include direct elections for the chief executive and Legislative Council by geographic constituencies, as per the Basic Law.  The fears of pro-democratic groups were made worse in April 2005, when Beijing announced that direct elections for the chief executive and LegCo in 2007 and 2008 will not be held, as widely hoped.        

The 2004 election season was marked by the launch of a debate about patriotism, where patriotism was linked to the central government and certain pro-democracy candidates and members of the press were labeled anti-patriotic for their criticism of the government.[11]     

Though non-citizen voting has not come under direct attack in the democracy debate, the issue has been debated.  In November 2003, the chief of the pro-Beijing political party Democratic Alliance for the Betterment of Hong Kong (DAB), Tsang Yok-sing, spoke at a forum sponsored by the International Committee of Jurists’ affiliate, Justice.  In his comments, Tsang pointedly but indirectly questioned foreigners’ right to vote, stressing Hong Kong’s position as a part of China when discussing the Basic Law’s requirement that selection of the chief executive be made in light of Hong Kong’s “actual situation”.[12] 

This comment touched off debate in the press and a flurry of letters to the editor of the English-language newspaper South China Morning Post.  Tsang wrote in to the Post to several days later to clarify the meaning behind his remarks.  The right to vote was not necessarily a basic human right, he wrote.  Though the right to vote is internationally recognized as a citizens’ right, it is not considered the right of every person who lives in a particular country.  He observed that Hong Kong differed from many countries because the Basic Law extends the right to vote to non-Chinese citizens, and suggested this fact be considered in deciding how Hong Kong’s chief executive should be chosen. “The fact that non-Chinese nationals are entitled to vote in elections for chief executive must be an important element of the ‘actual situation.’”[13]            

Should patriotism continue to be a primary theme in subsequent elections, the issue of non-citizen voting may very well arise again, potentially splitting pro-democracy groups and providing fodder and increased voter appeal for pro-government groups. 

Conclusion

Bcause of its colonial past and unique political structure, Hong Kong extends voting rights to non-Chinese citizens, but voting rights of all eligible voters in Hong Kong are limited in scope.  Because the future of democracy in Hong Kong remains uncertain, the future of non-citizen voting rights remains in question as well.