1 Later reduced to 27.
• Annual Report 1957, pp. 360-61.
12. The New Territories Magistracy at Fan Ling, opened in 1961.
By courtesy of the Hong Kong Government Information Services.
Facing page 209
XXI AIN
น
י ד ני
+ 448 44
CONSTITUTIONAL DEVELOPMENTS 1945-62
209
opinion in the New Territories. The Heung Yee Kuk was thus reduced to the status of a private society subject to the Societies' Ordinance; however, it refused to register as a society and a peti- tion to the Governor to exempt it from registration was rejected in a reply in which the Government's objections were stated at length. The Government insisted that the law must take its course; so in November 1958 the Heung Yee Kuk began legal proceedings against the District Commissioner for the New Territories and Registrar of Societies. When, in November 1959, the Government introduced a bill in the Legislative Council to provide the Heung Yee Kuk with a new constitution, there were demonstrations outside the Central Government Offices against the bill, but the ordinance was passed in December 1959. The Kuk was to consist of a Council and an Executive Committee. The Council was composed of chairmen and vice-chairmen of the 27 Rural Committees, the unofficial Justices of the Peace for the New Territories and 21 councillors elected by the foregoing. The Executive Committee which was to meet monthly, consisted of the chairmen of the Rural Committees, the New Territories unofficial Justices of the Peace and 15 ordinary members elected by the full Council. The threatened legal proceedings were dropped and after protracted discussions the scheme was accepted and the first elections were held in January and February 1961 respectively. In 1960, the Rural Committees were for the first time given a small monthly subvention for routine expenses.
After the war, the old division of responsibility for the New Territories between District Officers North and South respectively, was revised and one District Officer was made responsible for the whole area with assistants. In 1948 he became known as District Commissioner and was assisted by a District Officer in each of the three districts into which the whole was divided; in 1957 there were four Districts, Yuen Long, Tai Po, Tsuen Wan and Islands; in 1960, the latter district was divided into two, Sai Kung and Islands respectively, each with its own District Officer, making five altogether. In 19541 the District Officers were relieved of their general court duties for which a special magistrate was appointed, but they retained their small debt courts and land courts, until 1961 when their jurisdiction was transferred to the District Courts.
1 Annual Report 1954, p. 274.
CHAPTER XIII
THE STRUCTURE OF GOVERNMENT IN 1962
The Executive: The Governor in Council
THE office of Governor and Commander-in-Chief of the Colony of Hong Kong is constituted and his powers defined in general terms by the Letters Patent and Royal Instructions of 14 February 1917, with subsequent amendments, and which are referred to briefly as the Hong Kong Letters Patent 1917 to 1960. These require him to act 'according to such instructions as may from time to time be given him under our Sign Manual and Signet, or by Order in our Privy Council, or by us through one of our Principal Secretaries of State, and to such laws as are now or hereafter shall be in force in the Colony'.1 This last important provision states explicitly the principle that the Governor of Hong Kong, as with all other British officials, cannot act despotically or arbitrarily, but is subject to law in much the same way as any other citizen. In Hong Kong the law is sovereign. The Governor's powers are further defined in the Colonial Regulations, Part II, Chapter V. "The Governor is the single and supreme authority responsible to, and representative of, Her Majesty. He is by virtue of his Commission . . . entitled to the obedience, aid, and assistance of all military, air force, and civil officers.' He is Commander-in-Chief of the Colony but does not command the regular forces stationed in the Colony; he can demand information from the senior Military and Air Force Commanders, but by tradition does not issue any orders to officers of the Royal Navy, and recommendations for the movement of warships are made through the Secretary of State for the Colonies. The Governor has to supply information on the Colony to the Secretary of State in the form of 'the annual returns for the Colony, commonly called the Blue Book, relating to Revenue and Expendi- ture, Defence, Public Works, Legislation, Civil Establishments, Pensions, Population, Schools, Course of Exchange, Imports and Exports, Agriculture, Produce, Manufactures and other matters with reference to the state and condition of the Colony'.2 As the personal representative of the Sovereign, he exercises the
•
' Letters Patent, 14 February 1917, Section II.
2 Ibid., Royal Instructions, 14 February 1917, Section XXXV.
211
THE STRUCTURE of governmENT IN 1962
royal prerogative of pardon in capital cases; the decision to pardon or not must be taken on his own responsibility, but if he acts contrary to the advice of the Executive Council, he must enter his reasons at length in its minutes. The Governor can also pardon offenders who give information regarding crimes, but except in the case of a political offence, he is not permitted to make banish- ment from the Colony a condition of pardon. The Governor may suspend or dismiss any official, subject to the prescribed procedure being complied with.
The powers and influence of the Governor cannot be precisely defined. He is the chief executive officer and exercises a general influence over the whole administration in virtue of his ultimate responsibility for the peace order and good government of the Colony. All government decisions are promulgated in his name and his views are therefore invested with great consequence.
The Governor is advised by an Executive Council consisting of the Senior Military Officer for the time being in command of the regular forces, the Colonial Secretary, Attorney-General, Secretary for Chinese Affairs and the Financial Secretary, all these being ex officio, and such other persons as may be appointed by the Crown or on instructions from the Secretary of State. The membership of the Council in 1962 consisted of six official members namely the five ex officio members mentioned above, and one nominated official, and six unofficial members, appointed by the Crown on the nomination of the Governor for a period of five years, and eligible for appointment for further terms. In the case of a vacancy the Governor makes a provisional appointment. In effect, the Governor chooses his official advisers except the five ex officio members. As the sixth official, he normally selects a senior administrative officer of staff grade, but not necessarily the most senior. The unofficial members of the Executive Council are usually chosen from past or present members of the Legislative Council with an established record of public service.
The Executive Council advises the Governor and he is bound to consult it except in such cases as, in his judgment, the public service would 'sustain material prejudice by consulting the Council thereon' or on unimportant matters. He can act without the advice of the Council in case of emergency, but must then communicate to the Council at the earliest practicable moment the measures
1 Ibid., Sect. XXXIV.
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GOVERNMENT AND PEOPLE 1841-1962
taken and his reasons. The Governor determines its agenda and business according to the following rule: "The Governor shall alone be entitled to submit questions to the Executive Council for their advice or decision; but if the Governor decline to submit any question to the Council when requested in writing by any member so to do, it shall be competent to such member to require that there be recorded upon the Minutes his written application, together with the answer returned by the Governor to the same'.1 The Governor may act in opposition to the Executive Council's wishes, but in this case, he must report to the Secretary of State with his reasons, and any member of the Council can insist that his opinion on the matter be entered at length on the minutes. The Governor has to 'communicate these Our Instructions to the Executive Council, and likewise all such others, from time to time, as We may direct, or as he shall find convenient to our service to impart to them'.2 The Council which meets and deliberates in private cannot proceed to business unless summoned by the Governor, and unless at least two members attend exclusive of himself or the member who is presiding. The Governor presides unless prevented. Minutes are kept and sent to the Secretary of State each six months. Theoretically, the Executive Council has no powers of its it is the body from which the Governor seeks advice, but the Governor in Council has certain statutory duties, e.g. to make regulations in
accordance with certain ordinances.
The Legislature: The Legislative Council
own,
The unicameral Legislative Council is the supreme law-making authority for the Colony. According to Section VII of the Letters Patent "The Governor, by and with the advice and consent of the Legislative Council, may make laws for the peace, order, and good government of the Colony'. There are certain limits to this law- making power. The Crown retains the power of disallowance of any ordinance through the Secretary of State, and a bill passed by the Legislative Council may also be reserved for the signification of the royal assent. The Crown has the right of concurrent legisla- tion by order in council, and further, 'the Governor and Legisla- tive Council shall conform to and observe all rules, regulations, and
1 Ibid., Section XI.
2 Ibid., Section VI.
THE STRUCTURE OF GOVERNMENT IN 1962
213
directions in that behalf contained in any Instructions under Our Sign Manual and Signet." On the passage of a bill through the Legislative Council, the Governor has to declare that he assents, or refuses his assent, or that he reserves the bill for signification of the royal pleasure.
The Legislative Council consists of the five ex officio members of the Executive Council and not more than four other officials, 'as We may from time to time appoint by any Instructions or warrants under our Sign Manual and Signet, or as the Governor in pursuance of Instructions may from time to time appoint by an Instrument under the Public Seal of the Colony
•
·
·
•
།י
all
of whom are styled official members; and, further, of not more than eight unofficial members, 'as the Governor, in pursuance of Instructions
may from time to time appoint by an Instrument under the Public Seal of the Colony . . .'. The unofficial members hold their seats for four years but are eligible for re-appointment for further terms. Vacancies are filled by provisional appointments made by the Governor. If an unofficial becomes bankrupt, or is convicted of a criminal offence or is absent from the Colony for more than three months without permission from the Governor, his seat is declared vacant; any member of the Legislative Council except an ex officio member, may resign but such resignation cannot take effect unless accepted by the Governor. The Governor or, in his absence, the senior official member present presides--but the Senior Military Officer is not considered an official member for this purpose and has an original and a casting vote. The quorum is five. The Legislative Council makes its own standing orders but they must not be repugnant to the Letters Patent or the Royal Instructions. An individual member may propose any subject for debate, and if seconded it is debated, except that financial resolu- tions may be initiated only by the Governor or only with his permission. All ordinances are enacted 'by the Governor of Hong Kong with the advice and consent of the Legislative Council thereof'. All ordinances passed in any one year must be assented to by the Governor, if he proposes to assent to them, in that year. There are a number of specified subjects, legislation upon which must not be assented to by the Governor, except on special instruc- tions from the Secretary of State, or without a suspending clause
1 Ibid., Section XII.
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GOVERNMENT AND PEOPLE 1841-1962
permitting reference to the colonial authorities at home, or unless the matter is of urgent necessity. Among the subjects so restricted are those arranging for divorce; relating to the currency of the Colony or the issue of bank notes or establishing a banking association; imposing differential duties; proposing any action inconsistent with British treaty obligations, interfering with the British armed forces, affecting the royal prerogative or the interests of British subjects not residing in the Colony; and imposing any restriction 'whereby persons not of European birth or descent may be subjected or made liable to any disabilities or restrictions to which persons of European birth or descent are not also subjected or made liable'.
Private bills are allowed subject to safeguards, and if introduced by a private member must be published before being introduced for a first reading. Copies of all ordinances must be sent to the Secretary of State with any necessary explanations and they must be collected and published each year. The Council's minutes must also be sent to him after each meeting at which they have been passed.
Under the Standing Orders, all members of the Legislative Council must take the oath of allegiance, and must therefore be British subjects, and must be English-speaking as the proceedings are in English. The meetings are fixed at the discretion of the Governor, and he may adjourn or suspend any meeting. The order of business in the Legislative Council is: confirmation of the minutes, swearing of the oath (or affirmation) by a new member, announcements, papers laid upon the table and not debated, petitions, questions, Government business, and unofficial mem- bers motions.
Papers are presented only by official members, who may be questioned on the work of their own departments or on matters for which they are responsible; other members may also be ques- tioned, but only on matters for which they are responsible, and prior notice must be given unless waived by the Governor as president. The Governor can send messages to the Council to which consideration must be given and he may address the Counci! at any time. Notice must be given of any motion, with certain procedural exceptions.
Voting is by voice, but if a division is called for, the unofficial members vote first. The legislative procedure follows that of the
THE STRUCTURE OF GOVERNMENT IN 1962 215
House of Commons, namely, a formal first reading at which, apart from the mover and seconder, the Governor may speak but no other discussion allowed, a second reading in which general principles only may be debated, a committee stage dealing with the detailed clauses and a third reading at which the bill is passed as amended in committee. The public are admitted to the meetings of the Council, but strangers may at any time be ordered to withdraw.
The Governor has considerable say in the personnel of the Council since four official members and six of the eight unofficial members are appointed on his direct nomination, that is ten out of seventeen members. The official members in 1962 were the five ex officio members and the Director of Education, Director of Public Works, Director of Medical and Health Sérvices and Direc- tor of Urban Services. The last three have regularly occupied seats on the Council since 1946, and are virtually ex officio but the ninth seat seems to be awarded on more personal grounds. There might be some advantage if all heads of departments were members of the Legislature and liable to be publicly questioned there, in accordance with English constitutional practice, but this would necessitate a corresponding increase in the number of unofficials. any case, all the official members must support the official policy by their votes.
In
Of the eight unofficial members, six are directly nominated by the Governor and two are elected respectively by the Justices of the Peace and the Hong Kong General Chamber of Commerce for the Governor's subsequent formal nomination. Of the six unofficials nominated by the Governor there were in 1962 five Chinese, and one Indian. In the past, the number of Chinese members to be nominated by the Governor was laid down by the Secretary of State; the Letters Patent and Royal Instructions of 1917 are silent on the point, but it may be inferred that conven- tion now governs the point although the Queen's instructions in any case are necessary for substantive appointments and she may disallow provisional appointments when reported.
The representative of the Hong Kong General Chamber of Commerce on Legislative Council was, up to 1961, elected at a special general meeting of the Chamber; since that date the election is by the General Committee. Since the War the Chamber has elected its chairman as its nominee on the Council; before the War this was not the usual practice. The Hong Kong General
216
GOVERNMENT AND PEOPLE 1841-1962
Chamber of Commerce is an international body comprising some 760 firms, and by its Articles of Association, the General Committee must be British and members of British firms; since this body elects the chairman, he is invariably an important British business man, and has usually had long experience in the Colony before reaching the chair. An electorate of 760 is small enough, but it is racially mixed and very influential because representative of a vitally important side of Hong Kong life.
The unofficial Justices of the Peace have shown faith in their nominee by normally re-electing him for long periods. During the 57 years, 1884 to the Pacific War in 1941 they elected only three men, F. D. Sassoon, 1884-87, C. P. Chater, 1887-1906, and H. E. Pollock, 1906-41, and since the War only four, the Hon. M. M. Watson 1946-53, Dhun Ruttonjee 1953-58, H. D. M. Barton 1958-62 and S. S. Gordon 1962. They have nominated on occasion members of communities which might not otherwise be represented on the Council, and in this way paid regard to the broad interests of the community at large. The remaining unofficial members nominated by the Governor are selected, it would seem, from prominent members of the business community, especially those of them who have proved themselves by public service.
The Legislative Council normally meets once a week on Wednes- day afternoons. Its proceedings have become formal and one of the most important reasons for this is the existence of a committee system in which issues that would normally be debated in public in the Legislative Council, are argued in private in committee. By section 4 of the Standing Orders of the Legislative Council of Hong Kong, dated 19th December 1929, there are three standing committees.1 They are the Finance Committee, consisting of the Colonial Secretary as chairman, the Financial Secretary, the Director of Public Works and all the unofficial members; the Public Works Committee comprising the Director of Public Works as chairman, the Financial Secretary, and all the unofficial mem- bers of the Legislative Council; and the Law Committee, consisting of the Attorney-General as chairman, and four other members appointed by the President at the first meeting each year of the Legislative Council. Any member of the Council is entitled to attend any meeting of any of these committees, but is not entitled to take part in the proceedings of a committee of which he is not a
1 Hong Kong Civil Service List 1958, p. 11.
THE STRUCTURE OF GOVERNMENT IN 1962
217
member. The Committees meet and debate in private and there is no published record of their proceedings. This committee system has been in being with emendations since 1883, and the Finance Committee since 1872. The Finance Committee meets normally every other Wednesday afternoon after the meeting of the full Council, but it can and does meet as often as required. The unofficial members have a majority and it is safe to say that Government measures involving some financial provision must, in general, satisfy them. In the absence of any published proceedings it is impossible to be dogmatic, but there is reason to believe that it is in this Committee that the influence of the unofficials is perhaps most felt.1
The other two standing Committees, those of Public Works and Law, meet seldom, if ever, are of little importance, and continue largely in name only. These two Committees have their business remitted to them from the Legislative Council, and so cannot examine proposals before they are brought before the Council. The result is that, except in regard to Finance, the system of standing committees is modified in practice and replaced by a much more flexible committee system. Much of the Public Works programme is discussed in a Public Works sub-committee of the Finance Committee, since public works are normally dependent upon financial provision being found possible. This sub-committee produces an annual printed report; the first appeared for the year 1955-56, and it is presumed that this sub-committee began to function then. A Government Public Works Review Committee examines all public works proposals and a New Buildings Schemes Committee, consisting of the Deputy Colonial Secretary, chair- man, Deputy Financial Secretary, three unofficial members of the Legislative Council and two other officials, the Assistant Secretary (Lands) and the Assistant Director of Public Works, considers all new public works before they are submitted to the Council. These three Committees meet as necessary, and much of the ground work of legislation is debated in them, in private. It is understood that most recently a further sub-committee has been formed to discuss proposals for staff increases, etc. before their in- clusion in the draft estimates of expenditure for the annual budget.
1 This was confirmed by an unofficial member at the budget debate on 16
March 1964.
:
ERMANI
218
GOVERNMENT AND PEOPLE 1841-1962
Similarly the Standing Law Committee, virtually unused, has its work performed by a Law Reform Committee, consisting of the Chief Justice or his representative as chairman, the Attorney- General or his representative, an unofficial member of the Legis- lative Council selected by the unofficial members, the Registrar- General or his representative, the chairman of the Hong Kong Bar Association or his representative, the president of the Hong Kong Law Society or his representative, a member of the Attorney- General's Department (member and secretary), and such other persons as may from time to time be co-opted by the Committee either generally or for any particular purpose.1
There is one further important modification of the standing committee system. The draft estimates of revenue and expenditure (the budget), are referred each year to a Select Committee, consist- ing of the Colonial Secretary, the Financial Secretary and all the unofficial members. This is almost the same membership as the standing Finance Committee, but it is presumably felt that the annual estimates should be the subject of a special committee for that sole purpose. This procedure has been adopted since the War. This Committee system must not be confused with the quite different committee stage in the legislative process taken between the second and third readings in the full council.
Administration: The Urban Council
There has been no traditional division of functions between central and local government authorities in Hong Kong such as is found in Britain and the United States because the limited size of the Colony permits the central government itself to perform all the necessary tasks.
The Urban Council is not a municipal council after the English pattern. Its responsibilities, which are limited to the urban areas, are laid down by ordinance and include environmental hygiene, supervision of markets and hawkers, public cleansing, cemeteries, and the provision of recreational facilities. It operates through an Urban Services Department, the functions of which 'shall include the doing of such acts and things as may be necessary for the pur- pose of implementing any decision of the Council... '. The head of the Urban Services Department is an administrative officer,
1 Government Gazette, No. 12, 16 March 1956.
}
;
E
13. Urban Council Meeting, 6 August 1963. By courtesy of the Hong Kong Government Information Services.
Facing page 218
BALLOT
14. Voting in the Urban Council elections held on 7 March 1963.
By courtesy of the South China Morning Post, Hong Kong.
Facing page 219
THE STRUCTURE of governmENT IN 1962
219
employed and paid, like his staff, by the Hong Kong Government and responsible to it.
The Urban Council consists of ex officio members and ordinary members; there are five ex officio members, the chairman, appoint- ed by the Governor, who is the Director of Urban Services, the Deputy Director of Medical and Health Services as vice-chairman, Director of Public Works, Secretary for Chinese Affairs, and the Director of Social Welfare; the Commissioner for Resettlement also sits as a temporary ex officio member.1 There are 16 ordinary members, of whom eight are elected and not more than eight are appointed, giving them a clear majority over the official members. The ordinary members must not hold office under the Crown or have been sentenced to any period of imprisonment exceeding one year; or have been convicted of treason; or have been disqualified under any corrupt practices ordinance; or be a member of the legislature of any foreign power or a salaried functionary of any foreign power; or be an undischarged bankrupt. Ordinary members may
be of either sex and must give proof of ability to speak and write English and must sign a declaration of acceptance of office. The eight appointed ordinary members comprised in 1962, five Chinese, two British and one Portuguese, and they hold office normally for four years and are eligible for re-appointment.
2
The eight elected members are elected for four years by voters possessing any of the following qualifications; (a) liability to serve as a special or common juror, (b) exemption from jury service on certain specific grounds, (c) qualified teachers under the Education Ordinance, (d) payment of tax under the Inland Revenue Ordin- ance, and (e) membership of the Defence Force or Auxiliary Services, except that members of the Police Force and of the regular Armed Forces are not qualified to vote. A voter must be over 21 years of age and not have been found guilty of corrupt practices or have been convicted and imprisoned for a term cx- ceeding six months. The maximum scale of election expenses is prescribed by the Governor and must not exceed 'during the elec- tion .. after such election or within the nine months before
1 Annual Report 1957, p. 358. In March 1964, the Governor announced an increase of unofficial members of the Urban Council, two appointed and two elected.
The Urban Council Ordinance of 1956 does not follow precedent set by the earlier ordinances dealing with the Sanitary Board or the Urban Council in binding the Governor to nominate a minimum number of Chinese.
i
220
GOVERNMENT AND PEOPLE 1841-1962
THE STRUCTURE OF GOVERNMENT IN 1962
221
所理以監及 您
法根軸國
On the occasion of the formal opening of the
City Hall on 2nd March 1902 His Excellency Sir Robert Black Knight Grand Cross of the Most Distinguished Crair of St. Michael & St George. Officer of the Most Excellent Order of the Fraish Empire, Gourner & Commander in Chief of the Colony of Hong Kong. presented this
scroll to the Urban Council upon whom the
management of the City Hall had been wested
by Ordnance on Wednesday, 29th March 1961.
It was received on behalf of the Urban Council
the Chairman the Honourable Kenneth
Štrathmore Kinghorn, Justice of the Peace-
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訂禃此荠
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香
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主
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Scroll presented to the Urban Council by the Governor on the occasion of placing it in control of the City Hall at its opening, 29 March 1961
the date of such election', $5,000, plus 20 cents for each entry in the register of voters in excess of 25,000.
An election agent's fee is not to exceed $1,000. In the case of two or more joint candidates, i.e. having the same election agent, the maximum permitted expenditure is reduced by one quarter, and in the case of more than two joint candidates, by one third.1
The Urban Council's position may be anomalous, but there can be no question of its influence and importance. It has no direct control over its chairman, the Director of Urban Services and his staff, but its public discussions do in practice carry great weight, and its decisions are normally implemented. Its value is that administrative action, which closely touches the lives of the people
1 Corrupt and Illegal Practices (Urban Council Election Expenses Order 1955, GNA B4 of 1955).
is discussed in public and helps to create an informed public opinion. The work of the Council is onerous. It meets for formal business at least once a month, but the chief work is done in its 15 select committees and 4 sub-committees; the Chairman presides over the policy committees, and unofficial members may occupy the chair of other committees and assume responsibility for a
1
particular part of the Council's work. Membership of the Council is no sinecure, and carries on an old British tradition of unpaid service to the community. There is considerable pressure from the unofficial members of the Council gradually to increase the scope of its activities, and the Young Plan may yet be implemented, though in piecemeal fashion. The Resettlement Department created early in 1954, operates under its general direction, though here again the Commissioner for Resettlement and his staff are not under its control. The Housing Authority set up by the Housing Ordinance No. 18 of 1954 consists of all members of the Urban Council, ex officio, and not more than three members appointed by the Governor. The Housing Division which consists of Government staff lent to the Housing Authority is also part of the Urban Services Department. The Council controls parks and playgrounds as well as such new amenities as the swimming pool, and the recently excavated Lei Cheng Uk Tomb of pre-T’ang times.
The administration and management of the new City Hall which was completed in 1962 also comes under the Urban Council.
Administration: The Government Departments
The administrative functions of Government are discharged, under the general superintendence of the Colonial Secretary, by some thirty-five departments, the staffs of which form the Hong Kong Civil Service. The Colonial Secretariat under the general control of the Deputy Colonial Secretary co-ordinates the work of the other Departments and acts as the link between the policy-making authoritics and the administrative bodies who have to implement their decisions.3 Generally, the departments administer ordinances coming within their sphere, in addition to any specific statutory
1 Annual Report 1957, p. 196.
Ibid., p. 188. Up to 1962, only one such member had been appointed. This account is based on information given in the Annual Report 1962.
222
GOVERNMENT AND PEOPLE 1841-1962
duties, carry out policy decisions, prepare departmental estimates for the budget and put up proposals for future legislation or administrative action. The heads of departments might be deputed to answer questions in the Legislative Council, if they are mem- bers, but generally are responsible to the Governor through the Colonial Secretary.
The Colonial Secretariat is organized in four divisions, general administration, finance, defence and establishment. The first is controlled by the Deputy Colonial Secretary. The Financial Secretary prepares the annual budget and deals with financial and economic policy. The Defence Secretary is responsible for the Royal Hong Kong Defence Force, the Auxiliary Police Force and the Essential Services Corps and is the link between the Hong Kong Government and the British Armed Forces stationed in the Colony.
The establishment is controlled by a Public Services Commis- sion, which is an independent statutory body, set up in 1950, to advise on pensionable posts, appointments and promotions in the Government service.
The Legal Department under an Attorney-General is responsible for advising the Government on legal matters, drafting legislation and conducting public prosecutions.
The Secretary for Chinese Affairs advises on all matters con- nected with the Chinese population in the urban area and presides over statutory committees of special importance to the Chinese, controls the District Watch Force, and co-ordinates the policy of other departments in relation to the Chinese, e.g. in connection with measures against drug addiction.
The Social Welfare Department has six sections dealing with Child Welfare, Youth Welfare, Community Development, Welfare of Women and Girls, Special Welfare Services e.g. to the Blind, Relief and Public Assistance, and Probation, and it has close relations with the Council of Social Service and many voluntary bodies concerned with social welfare.
The Accountant General is responsible for the government accounts and a Director of Audit is responsible, under the general supervision of the Director-General of the Overseas Audit Service in London, for auditing them. A Commissioner of Rating and Valuation is responsible for the assessment of rates and questions concerning the value of real property. The Commissioner of
THE STRUCTURE OF GOVERNMENT IN 1962
223
Inland Revenue concerns himself with internal revenue such as the Earnings and Profits Tax, Stamp Duties, Estate Duty, Enter- tainment Tax, Dance Halls Tax and the Betting and Sweeps Tax.
The Director of Commerce and Industry is responsible for trade development, collection of import and excise duties, the working of the Preventive Service, the production of trade statistics and of any other statistics required by the Government, certificates of origin, trade licensing, etc. He controls the Hong Kong Govern- ment offices in London and Sydney which are mainly concerned with trade promotion.
The Public Works Department has nine sub-departments dealing with waterworks, Crown Lands and Surveys, administra- tion of the Buildings Ordinance, electrical and mechanical works, architecture (government buildings), development, port works, drainage, and roads. The Director of Public Works is also respon- sible for town planning.
The Urban Services Department under a Director is responsible for sanitary services in the whole colony and for certain services in the field of public health in the urban area such as standards of cleanliness in the preparation of food, control of slaughter houses, administration of pest control measures, and supervision of hawkers; it controls public parks, playgrounds, bathing beaches, car parks and the City Hall. It operates in association with the Urban Council which ensures that decisions which touch the daily life of citizens are debated in public by a body composed of officials and representatives of the community. The Urban Services Department also comprises a Housing Division under a Commis- sioner who works in association with the Housing Authority.
Resettlement Department became necessary with influx of refugees. The Urban Council working through the Department its responsible for the clearance and resettlement of squatters, the administration of resettlement estates and areas, and the depart- ment works in close association with the Housing Authority and the Commissioner for Housing.
The Police Department and the Prisons Department, each under a Commissioner, need little comment. The duties regarding control of immigration which used to be performed by the police have now been placed under an independent Immigration Department; the problem is to control illegal immigration, for the ordinary com- munity services cannot bear the strain of continued mass immigra-
ལ
BETA USAIDIEREN BAINA
224
GOVERNMENT AND PEOPLE 1841-1962
tion into the Colony, and the long-maintained open frontier with China has had to be abandoned.
The Medical and Health Department is responsible for providing hospital and clinical facilities in the whole colony, including the New Territories and also provides maternal and child health facilities, a school medical service and port health services, and is responsible for preventive measures against epidemics. The department also supplies medical staff for the Urban Services Department, the industrial health section of the Labour Depart- ment, and the Prisons Department. The Urban Council, through the Urban Services Department is the authority for environmental and food hygiene for the urban area, and is in process of taking over similar responsibilities in the rural areas. Government policy aims at providing medical facilities at low cost for those unable to afford the expense of consulting medical practitioners on their own account, and with this in view, in addition to various hospitals, Government provides out-patient clinics or assists voluntary asso- ciations or medical missionary bodies to provide them. The normal charge at a clinic is one dollar for each attendance, but tuber- culosis, leprosy and venereal disease treatment is free as are maternal and child services.
The Education Department concerns itself with primary, secondary and post-secondary education and directly maintains schools and assists by grants or subsidies approved schools run by missionary and other voluntary agencies.
The Labour Department is responsible for initiating labour legislation, for the registration and inspection of factories with a view to promoting industrial health and safety; it undertakes con- ciliation in industrial disputes, advises on the formation and management of trade unions and has statutory duties in the protec- tion of women and young persons in regard to conditions of labour, and administers the Workmen's Compensation Ordinance. The Commissioner of Labour is also the head of another smaller depart- ment as Commissioner of Mines.
The Registrar-General's Department deals with land registra- tion, births and deaths, marriages, registration of trade marks and patents. It also contains the offices of the Official
companies
and Receiver in Bankruptcy, the Official Trustee and Judicial Trustee and of the Official Solicitor in Lunacy; for these highly specialized
duties it has a staff of solicitors.
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THE STRUCTURE OF GOVERNMENT IN 1962
225
The Marine Department under a Director is responsible for co-ordinating and controlling the harbour services assisted by various port committees on which the local commercial interests are represented.
The Airport administration and operation are controlled by a Director of Civil Aviation.
The British section of the Kowloon-Canton Railway is run directly by Government through a Manager and Chief Engineer. A Postmaster General controls the Post Office and the Radio Station, but telephone and cable services are privately organized by a public utility company.
The Director of the Royal Observatory is responsible for pro- viding meteorological information and warnings.
The Director of the Information Services Department is responsible for official publicity.
The Agriculture and Forestry Department covers land utiliza- tion and provides technical advice to farmers in the use of scientific techniques and conservation of soil and water through afforestation. The Government fosters the fishing industry and encourages co- operative marketing schemes through the Co-operative Develop- ment and Fisheries Department, which is responsible for a Fisheries
Research Unit.
The Fire Brigade under a Chief Officer provides protection against the hazard of fire in the urban area and more populous parts of the New Territories.
A Stores Department buys and distributes government stores. The Government Printer at the head of the Printing Department is responsible for all government publications.
A Quartering Authority provides accommodation for Civil
Servants.
A new department set up in 1961, the Government Public Enquiry Service, assists the general public by answering enquiries concerning government departments.
The New Territories Administration, under a District Com- missioner, has been described in an earlier chapter.
On 1 January 1962 the total actually employed in the Hong Kong Government service was 49,902, almost treble the number employed on 1 April 1949, at which date the figure was 17,554; the authorized establishment including unfilled posts was 56,910. The estimated cost of salaries and wages for the year 1962-63 was about
1
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GOVERNMENT AND PEOPLE 1841-1962
378 million dollars, or 31% of the total estimated government expenditure for the year. Monthly paid officers form four broad categories, one includes administrative and professional officers; a second, junior grades with monthly salaries above $360 for men and $275 for women; a third, staff subject to discipline below the rank of police sub-inspector or equivalent rank; and finally non- pensionable officers with initial monthly salaries up to $360 for men and $275 for women.
Local Recruitment
Much progress has been made in encouraging local recruitment to the government service. This policy, which was designed to be complementary to plans for constitutional progress, was laid down in a British Government White Paper, Colonial No. 197 of 1946: 'If progressive advancement along the road to self-government within the frame work of the British Commonwealth of Nations is to be a reality, the public services of the colonies must be adapted to local people. It is already a fully accepted principle that there should be no barrier to the appointment of a Colonial candidate or a locally recruited public servant to any post which he is qualified to fill . . . '. It also urged the appointment of an independent public services commission in each Colony to supervise this policy. A Public Service Commission was set up in Hong Kong in 1950.
The Retrenchment Commission of 1932 had urged this policy, but there was little progress until after the War. In 1946 Admiral Sir Cecil Harcourt, head of the temporary Military Administration praised the Chinese and Portuguese staff without whom, he said 'the personnel position would have been untenable, and it can hardly be denied that they thereby established credentials which it would be hard for any future government to ignore'.
Sir Man Kam Lo, who made himself the spokesman of the demand for extended local recruitment, complained in the Legisla- tive Council1 that little was being done to implement the policy. Sir Mark Young, in his address to the Legislative Council during the budget debate in September 1946, replied by giving a definite undertaking that "The policy of Government is to ensure that every opportunity shall be given to locally recruited persons not only to enter but to rise in the service of the public up to the highest posts
1 Hong Kong Hansard 1946, p. 117.
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THE STRUCTURE OF GOVERNMENT IN 1962
227
and to fulfil the highest responsibilities of which they are capable or can be assisted to become capable' by any means at the disposal of the Government.' The first post-war Salaries Commission of 1947 implemented this policy by making the payment of expatriate allowance to an overseas officer conditional upon there being no person with the requisite qualifications being available for local recruitment. An immediate start was made in the Medical Depart- ment where the Director was an enthusiastic supporter of the new policy, and before the year was out the grades of medical officer, nursing sister and health inspector which had up till then been restricted to expatriate officers were thrown open, and in the Education Department the grade of master was similarly opened. Of even more significance was the appointment in 1946 of the first Chinese, born in the Colony, to be a cadet officer and in 1952 for the first time a locally recruited officer was promoted to be the head of a government department. The same policy was adopted in the Police Force and in the technical departments such as the Kowloon-Canton Railway and the Public Works Department, opening the way to greater advancement of Chinese staff. In 1951 there were 54 locally recruited officers in the then classes I and II of the civil service, comprising administrative and senior profes- sional technical officers and others with a minimum basic monthly salary of $1,750;3 or 10-75% of the total employed in these classes. On 1 January 1962, there were 730 local officers and 950 expatriate officers, that is the percentage of the former had risen to 43.5 in the equivalent of these classes. To implement this policy much depended upon the provision of education and training facilities,
and
progress was slow until the flow of graduates from the Univer- sity began once more. As evidence of the new policy, the Central British School giving secondary education, which had been restricted to European children, was renamed King George V School in 1947 and thrown open to all children who could benefit by the instruction given.
It has been recognized that the policy of local recruitment for government service must be supplemented by opportunities for advancement in the service. Local officers have been assisted in
the
1 Hong Kong Hansard 1946, p. 128.
Report of the Salaries Commission, Hong Kong Sessional Papers 1948. Part I, p. 12.
'Slightly lower for women.
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GOVERNMENT AND PEOPLE 1841-1962
this respect; in 1962, for example, 92 local officers were sent over- seas to attend courses of instruction, at a total cost, including that of other expatriate officers who attended courses while on leave, of $1,550,000. In 1961 a start was made with more systematic schemes with the object of enabling locally recruited officers to qualify themselves by training or examination for the highest posts they are capable of filling.
!
CHAPTER XIV
GOVERNMENT BY DISCUSSION-HOW THE CONSTITUTION WORKS
Public Opinion and Lawmaking
LITTLE electoral machinery exists to enable opinion in the com- munity to be reflected in the Government through elected re- presentatives in the Legislature. The Governor and his professional civil service colleagues, backed by the Colonial Office in London, are in control. Yet the appearance of bureaucratic rule is misleading. An examination of the working of the Hong Kong constitution shows that interested opinion is consulted continuously prior to any important government decision, and that on occasion, where the interests of the whole community are concerned, as for one example only, the validity of Chinese marriages, the general public at large is invited to express its views. Indeed, consultation as practised by the Government is so extensive that the term 'govern- ment by discussion' aptly describes one of its leading characteristics and is taken as a fitting title to this chapter.
Even with electoral machinery, it is not always easy to find out public opinion or be certain that a government acts in accordance with the popular will. One criterion is the presence or absence of political unrest. Organized opposition to the government in Hong Kong is conspicuously absent and demands explanation. It may be due to apathy, repression or to Government and people being broadly in step. Some degree of apathy comes from the realization that decisions vitally affecting the future of Hong Kong may be taken in London, Peking, New York or elsewhere. There is also among the Chinese a tendency to political acquiescence, which stems from a Confucian respect for the official and which should not be mistaken for apathy. The police do have wider powers than for example in Britain, but generally, freedom of speech, conscience and association are enjoyed by the individual under the constitu- tion and these rights are incompatible with repression. Again, there is a mass of government publications regarding government business which creates the impression of willing accountability to the public.
:
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GOVERNMENT AND PEOPLE 1841-1962
In fact, the Government in Hong Kong commands respect by a policy of serving the common interest. This is not the same thing as governing in accordance with the general will, but it is accom- panied by some effort to elicit the views of the public as to what the general interest is.
The unofficial members of the Legislative Council are most influential because their function is to represent the community. Examination of the working of the Council shows the sensitiveness of Government to their views.
The proceedings of the Council have become formal; it has almost ceased to be a debating assembly. Government measures are rarely challenged and the unofficial members have not formed an opposition party as they threatened to do fifty years ago under the inspiration of Thomas Whitehead. The one exception is the full-dress debate on the annual budget. The Governor addresses the Council reviewing the work of the administration during the previous year and outlining some of the main problems to be faced in the coming year. The Financial Secretary presents his budget in detail and, at the next meeting, all the unofficial members pass comment with speeches in which traditionally they are free to range over the whole compass of public affairs. At the subsequent meeting, replies are made by the Colonial Secretary and other departmental heads dealing with the issues raised. There is little debate even here, and the occasion is one marked by a series of speeches which afford the unofficial members an opportunity to catch the public eye and justify themselves. They are fully reported in the daily press. The Council's normal proceedings have diminished in interest because in practice they do little more than formally record assent to bills which have been debated elsewhere. There are many reasons for this formality. The existence of an official majority which can always be used to carry government bills means that debate may be without effect on the final vote. Moreover, as society becomes more complex, legislation deals more with technical issues than with matters of broad popular interest. As an example, in the year 1957, chosen at random, the first twenty ordinances passed, given in alphabetical order were:
Births and Deaths Registration (Amendment), Board of Trustees of the United College of Hong Kong Incorporation Bill, Business Regulations (Amendment) Bill, Commonwealth Preference (Motor Vehicles), Crown Proceedings, Custodian of Property (Termination
GOVERNMENT BY DISCUSSION
231
of Functions), Defences (Firing Areas) (Amendment), Dutiable Commodities (Amendment), Education (Amendment), Enemy Pro- perty Legislation Repeal, Fatal Accidents (Amendment), Franked Instruments (Validation), Hawkers (Amendment and Validation), Hong Kong Airport (Control of Obstructions), Hong Kong Airport (Control of Obstructions) (Amendment), The Hongkong and Shanghai Banking Corporation (Amendment), Hong Kong Tourist Association Bill, Housing (Amendment), Kowloon City Baptist Church, Landlord and Tenant (Amendment), Law of Property (Enforcement of Coven- ants), Masonic Benevolence Fund Incorporation.
ordin-
It is clear that they are not so much policy measures as technical administrative measures, where expert views must ultimately prevail. They are inherently non-contentious, unless it be amongst the experts themselves and have to be voted as a necessary part of efficient administration. The working of the committee system in the Legislative Council, where the unofficial members have a majority or are well represented, makes it difficult to pass ances to which they were strongly and collectively opposed. They can therefore secure concessions before the final vote in the Council. Much informal consultation also takes place between the members and heads of departments quite apart from the discus- sions in committee. Thus in various ways differences are ironed out at an early stage and lengthy debate in the Council is obviated. The precise degree of influence exercised by the unofficial mem- bers is difficult to estimate. On important issues, their opinion has obvious weight and their opposition is avoided. Their vote against the Young Plan in 1949 was decisive, for neither the British Government nor the local British authorities were willing to make constitutional changes over their heads; yet their proposal for an amended Legislative Council was not accepted. În deference to local Chinese opinion Chinese custom is safeguarded and legisla- tion concerning it is unlikely to be proposed except on the initiative of the Chinese unofficial members. The Government, having nominated all but two of the unofficial members, naturally has confidence in its choice and normally heeds their advice.
It is on those rare occasions when the normal consultative processes break down or fail for some reason to reconcile the differences that the reality of the influence wielded by the un- officials is brought into the open. The following examples, taken from recent proceedings of the Legislative Council:
E
WALTE MEGENGERINGIL
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GOVERNMENT AND PEOPLE 1841-1962
The Education (Amendment) Bill, 1958,1 part of the object of which was to ensure the structural soundness of school premises and prevent the use of schools for propaganda purposes, aroused opposition for fear the bill would lead to the closure of private schools and reduce much-needed educational facilities. The first reading was taken on 18 December 1957 and the second was delayed until 8 January 1958, on which occasion the Attorney- General moved an amendment. The one unofficial member who spoke, referred to the need for various safeguards 'sufficient to ensure that Government stands no chance of getting away with undesirable restrictions'. Similarly, in 1957 a Medical Registra- tion Bill,2 directed against those holding medical qualifications but not registerable in Hong Kong, chiefly refugee doctors, aroused opposition. When the second reading was taken on 22 May, the Director of Medical Services referred to 'much evidence of public apprehension both as to its purpose and possible effects. There have been many representations to Government and to Unofficial Members ' and on behalf of the Government he himself moved eight amendments.
In the case of the Landlord and Tenant Bill, 1955,3 the first reading was on 6 July and the second was delayed until 17 August, because of opposition. The Attorney-General's speech on the latter date acknowledged that 'many representations and suggestions have been put forward by the honourable Unofficial Members of this Council and by various bodies and associations in this Colony'; he said 'All suggestions, representations and comments have been most carefully considered. .'; as a result, he himself proposed
a number of amendments.
4
In 1956 a debate developed in the Legislative Council on the future of broadcasting in Hong Kong. The Government had outlined five recommendations in a Sessional Paper and the Colonial Secretary moved that they be accepted. Amendments were pro- posed by an unofficial member and supported by his colleagues, and at the end of the debate, the Colonial Secretary announced that the amendments would be accepted by the Government.
1 Hong Kong Hansard for 1958, p. II.
2 Ibid., 1957, pp. 142, 182
a Ibid., 1955, pp. 214, 239.
• Ibid., 1956, p. 45
GOVERNMENT BY DISCUSSION
233
One of the most conspicuous examples was the defeat of the Football Pools Betting Bill in June 1960. Following a move to introduce football pools into Hong Kong, a committee was ap- pointed to consider possible amendments to the law regarding gambling. Towards the end of 1959, the committee was asked to consider the question of the pools separately and replied that they would probably recommend that the law be amended to allow their operation. On 23 December 1959, Government announced its intention, with the approval of the Executive Council, to introduce legislation to this effect, and the Football Pools Betting Bill received its first reading on 4 May 1960. The Officer Adminis- tering the Government on that occasion made the following special statement. . . . Unofficial Members of the Executive Council and of this Council have informed me that in their view there is a large body of opinion in the Colony which is opposed to this measure, and certain Unofficial Members have expressed their own personal misgivings as to the desirability of proceeding in the manner proposed.' He suggested a debate on the second reading in accor- dance with standing orders. This took place on June, and the bill was defeated by the opposition of seven unofficial members, in a vote in which all the eight official members and one unofficial member abstained. Government preferred to go back on its announcement rather than override the unofficial members.
The evidence is that opposition to the Government's legislative proposals, constitutionally expressed through the unofficial mem- bers of the Legislative Council, is listened to with respect, and that Government is clearly anxious to avoid a head-on conflict with
the unofficials.
The structure of two committees of the Legislative Council, those of the Finance Committee and the Select Committee for the annual draft Estimates of Income and Expenditure, gives the un- official members a substantial majority. It may be assumed-in the absence of any published proceedings this cannot be confirmed that financial proposals go forward to the full Council in a form acceptable to them.
The conclusion must be if that the largely formal proceedings of the Legislative Council recorded in the Hong Kong Hansard provide no index of the degree of influence in fact exercised by the unofficial members representing the community at large; the evidence is, not that there is little consultation with the unofficials
+
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GOVERNMENT AND PEOPLE 1841-1962
but much profitable consultation, not less debate but more effectual debate. This takes place during the preparatory stages of legislation when amendments can be more easily examined and accepted. Whatever disadvantage there may be attaching to influence exer- cised in private, behind the scenes, is possibly offset by the greater persuasive power of the unofficial members which allow a settle- ment of disputed points being arrived at without the Government exposing itself to public rebuff if the measure is not amended in accordance with public feeling.
In such a system of nominated unofficial members of the Legislative Council, much depends on the criteria used by the Governor in making his nominations. Under existing conditions his choice is limited. The candidates must be British subjects, otherwise they could not take the oath of allegiance. They must be men of some substance, otherwise they could not afford time to attend the meetings of the Council or of its committees, or attend to the various duties inseparable from membership or avail them- selves of invitations from departmental heads to inspect government projects. The British tradition of unpaid service to the community has much to commend it, but few can afford to give the necessary time. In any case, the Governor nominates only six members, the other two names being put forward by outside bodies. His dis- cretion is further limited by the need to balance the claims of the different communities, Chinese, Indian and British. Finally the Governor presumably has to look for evidence of ability, willingness to serve the public interest and capacity to represent some side of public opinion. The result is that the choice has to be made from a restricted class in society and from those who have proved them- selves in the Urban Council or in other public work.
In some ways the fact that there are nominated unofficials at all makes them representative, in the sense that members of the general public will discuss their grievances and present their views only to those whom they believe to have influence with government and so are in a position to help.
Public Opinion and Administration
The unofficial members of the Legislative Council are officially acknowledged as representatives of public opinion in the Colony in the matter of legislation. In day-to-day administration, the
:
GOVERNMENT BY DISCUSSION
235
Government is assisted by advisory bodies on which other mem- bers of the community serve and make their influence felt. The Urban Council with its eight nominated and eight elected members is the most important of these. The Civil Service List for 1962 gives the names of 67 advisory 'Councils, Boards and Committees etc.' with their composition. Of these, thirty-seven are statutory bodies in which the membership is wholly or partly determined by ordinance and which carry out statutory duties. Three are set up in accordance with regulations made under the authority of an ordinance. Nineteen are appointed by the Governor to advise the head of a department and keep him in touch with local opinion, and which he consults as much or as little as he finds advisable. The remaining eight are without indication of the constituting authority, though some appear to be of purely domestic interest to the Government's internal working.
These advisory bodies are an important and characteristic feature of Hong Kong's constitution. They are of bewildering variety in function, membership, powers, origin and influence and the list does not exhaust their number. Some are large representative bodies advising a department over the whole of its work, some are ad hoc bodies advising on a special aspect. The membership may be prescribed, in whole or part, by ordinance; there are ex officio members by virtue of positions occupied in the community, while others are appointed at the Governor's discretion. It is unnecessary to deal with all these bodies individually, a few examples will suffice to show the system at work.
In the Education Department, for instance, a Board of Educa- tion, set up by ordinance, advises the Director of Education, who is its ex officio chairman. Its twenty members, of whom ten are Chinese, comprise representatives of the main religious bodies interested in education, and of the chief communities, together with individuals qualified by experience and attainment to advise. There is a statutory Appeals Board, to which appeal may be made against the refusal of the Director to register a school, a manager or a teacher, with eight members, of whom three must be registered teachers, under an independent chairman. There is also a British Universities Selection Committce, appointed by the Governor, with the Director or his Deputy as chairman and seven other mem- bers such as representatives from the University of Hong Kong, the British Council, and an Assistant Director of Education. The
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GOVERNMENT AND PEOPLE 1841-1962
Social Welfare Department has a Social Welfare Advisory Com- mittee appointed by the Governor with the Director as ex officio chairman, the chairman of the Hong Kong Council of Social Service, the chairman of the Hong Kong Council of Women, the chairman of the Standing Conference of Youth Organizations, and the Chairman of the Tung Wah Hospitals Board of Directors, all as ex officio members, and six other members selected for their experience of social welfare work.
Among the bodies looking after the interests of the Chinese is the Chinese Permanent Cemetery Board of Management with the Secretary of Chinese Affairs as chairman, the Director of Public Works, the chairman of the Urban Council, seven Chinese mem- bers of the Executive or Legislative Councils, present or past, one of whom is vice-chairman, and seven other Chinese members. Another is the Chinese Temples Committee, a statutory body consisting of the Secretary for Chinese Affairs, the Chinese mem- bers of the Executive and Legislative Councils, the Chinese nominated members of the Urban Council, the chairman of the Board of Directors of the Tung Wah Hospitals, the chairman, Po Leung Kuk1 Committee, a director of the Tung Wah resident in Kowloon, and one member appointed by the Governor. The Chinese Recreation Grounds Committee has the Secretary for Chinese Affairs as chairman and seven Chinese members of one or other of the Executive and Legislative Councils. The Po Leung Kuk Permanent Board of Directors is a statutory body, with the same government official as chairman, and six Chinese members chosen from one or other of the two Councils, plus seven other Chinese, and has statutory powers in connection with the welfare of women and girls. The Tung Wah Hospital Advisory Board is a statutory body supervising the work of the Tung Wah Group of Chinese charity hospitals, with the Secretary for Chinese Affairs as chairman and fourteen prominent Chinese as members.
The Marine Department has two statutory bodies, the Mercantile Marine Assistance Fund Committee consisting of the Director of Marine, a clergyman, the divisional superintendent of Marine Police and two other members drawn from shipping companies, and a Pilotage Board of six members including members of the Marine Department, an officer of the Royal Navy and two master mariners. There are also three advisory bodies appointed by the 1 The Society for the Protection of Virtue, i.e. to protect women and girls.
GOVERNMENT BY DISCUSSION
237
Governor. The Port Committee consists of the Director of Marine as chairman, Director of Public Works, Manager and Chief Engineer of the Kowloon-Canton Railway, Commissioner of Labour, the Commodore of the Naval Base, and four representa- tives of shipping interests; the Port Executive Committee consist of the Director of Marine as chairman, a naval officer, and six representatives of shipping interests; the Port Welfare Committee has an independent chairman and eleven members chosen from the Marine Department, the religious organizations working in the Port, and representatives of shipping companies. The Director of Medical and Health Services is ex officio chairman of no less than eight bodies; five of them are professional and statutory bodies, the Dental Council, the Medical Council, the Midwives Board, the Nursing Board and the Pharmacy Board, and their members are chosen from those with appropriate professional qualifications. The Medical Advisory Board appointed by the Governor has six members all ex officio, of whom two are government officials, two are senior officers in the armed forces, and two represent the profession. The Hong Kong Examination Board, Royal Society of Health, has seven ex officio members, all officials of government. A Radiation Board, under the same chairman, has as members the Commissioner of Labour and Director of Commerce and Industry, both ex officio, the Superintendent of Mines, a senior specialist (Radiology), a government law officer, the head of the Physics Department at the University, a medical practitioner and two scientists. One important statutory body is the Hong Kong Housing Authority set up under the Housing Ordinance which has
already been referred to.
Two further examples are given to show the variety. The Advisory Committee on Corruption has an unofficial member of the Executive Council as chairman, with three other unofficial members of the Executive and Legislative Council, the Deputy Commissioner of Police and the Establishment Officer. The Public Services Commission set up under ordinance has three members, all
Legislative Councils.
Also in the above list is a Cotton Advisory Board set up as a result of the problems created over the renewal of an agreement made between Lancashire and Hong Kong cotton manufacturers by which the latter voluntarily and reluctantly accepted a temporary
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ceiling on exports of cotton goods to Britain. There was also pressure from the United States for a similar restriction. The Hong Kong Government proposed the formation of a Cotton Advisory Board to the cotton manufacturers who accepted it subject to certain reservations, and the Board came into being in July 1961, having as its terms of reference: 'arising out of the exceptional issues which the cotton industry in Hong Kong faces, to advise the Government on any matter which directly affects the cotton industry in Hong Kong'. The Board, under the chairmanship of the Director of Commerce and Industry, was to be composed of two representatives each from the Hong Kong Cotton Spinners Association, the Federation of Hong Kong Cotton Weavers and the Hong Kong Weaving Mills Association, and one representative each from the Chinese Manufacturers Association, the Federation of Hong Kong Industries, the Hong Kong General Chamber of Commerce, the Hong Kong Garments Manufacturers (for the U.S.A.) Association and the Dyeing and Finishing Industry. The Cotton Spinners Association refused to join the Board but the way was left open to it to nominate its two representatives later when it felt it could co-operate. Provision was also made for the later appointment of an independent vice-chairman. The Board provides an excellent illustration of the method of consultation used by the Government in policy making. The Board has advisory status only, but having been set up, the Government would find it difficult to ignore its advice.
There is also the Advisory Committee on Public Transport set up by the Governor in October 1961, consisting of an independent chairman, with the District Commissioner New Territories, the Director of Public Works, the Commissioner of Police, the Director of Marine and the Deputy Economic Secretary as official members, and five unofficial members. Its terms of reference are to keep under continuing review the routes, frequency, capacity and fares of all public transport services having regard to distribution of population, existing roads, piers, etc., the requirements of the public and the interests of the companies operating the services; to examine all complaints and suggestions and to make recommenda- tions regarding the long-term development of the public transport services. This is quite a different body from the Traffic Advisory Committee.
GOVERNMENT BY DISCUSSION
239
These advisory bodies are mostly permanent standing bodies, but they vary in number and composition from year to year, some disappearing and new one being added as occasion demands, making the system quite flexible.
But consultation with the public goes further than this, for there also exists a number of ad hoc committees to advise on specific projects or problems, whose span of life is long or short as the nature of the project dictates. A list is not readily available, and there is little publicity beyond occasional references in the press or in government announcements. No important official project is without its advisory committee containing usually both official and outside members. It acts as the liaison between the Government and the interests affected and helps to ensure that difficulties are ironed out at an early stage and that those likely to be adversely affected are able to make themselves heard. The process can be illustrated with reference to the building of the new airport of which the runway jutting out into the harbour was completed in 1958.
A Kai Tak Progress Committee was set up on 15 December 1954 to watch over the general progress of the scheme to recommend any modifications suggested by the consulting engineers or the Director of Civil Aviation to make recommendations on the design and layout of the terminal building and the equipment and personnel required to operate the airport with particular reference to the financial aspect.
It is difficult to evaluate this mass of permanent and ad hoc committees as evidence of consultation with the general public without a complete list over the years with terms of reference, mode of appointment and membership. They are all technically administrative in scope, but in so far as policy-making often arises from administrative difficulties, they do have some bearing on government policy. Besides it may be assumed that the Govern- ment would not establish them if they did not fulfil their main purposes of providing useful advice. In this way they help bridge the gap between the Government and the People.
Public opinion is given other opportunities of making itself felt. As in Britain, use is made of commissions or committees of enquiry, on which members of the community with appropriate experience are asked to serve, when legislation on some important topic is con- templated. Their reports are published, often accompanied by a White Paper giving the Government's view of the findings and
1
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GOVERNMENT AND PEOPLE 1841-1962
proposals. A Committee of Enquiry into Chinese Law and Custom in Hong Kong was appointed in 1948, consisting of the Solicitor- General as chairman, the District Officer, New Territories, a Chinese official from the Secretariat of Chinese Affairs, and four Chinese. More recently there has been an enquiry into the validity of Chinese customary marriages, following a petition for the abolition of concubinage. A report by the Attorney-General and the Secretary for Chinese Affairs was issued on 14 March 1961, and copies, together with an intimation that it did not necessarily represent Government policy, were sent to the press, to all the unofficial Justices of the Peace, to thirty-two women's organiza- tions, to a number of leading Chinese and welfare bodies, to the Bar Association, Law Society and the Heung Yee Kuk. Members of the general public were also invited to give their views. This may well have been a piece of government stonewalling but the Government has clearly shown it would not embark on any con- tentious legislation without full enquiry and opportunity for public discussion. Again, letters critical of official action appear in the press and are noticed and replied to, by the head of the department concerned, or by a press release from the Government Informa- tion Services Department.
In these many ways, public opinion has ample opportunities of being listened to and consulted. Government action is sifted in one or more of a mass of committees and thus public opinion plays no small part in Hong Kong both in the determination of official action and in the implementing of plans already decided. The system of consultative committees works well in a small compact community like Hong Kong, and might not be so efficacious in a larger state.
Summing up, though the government of Hong Kong remains the responsibility, through the Governor, of the Secretary of State in London, who is responsible to the Parliament at Westminster, the evidence of the Government's desire to associate members of the community with the governing institutions of the Colony is undeniable. The result is reasonable contentment, because action is not taken in the face of opposition. Chinese prejudices and customs are safeguarded and the Chinese do not feel themselves oppressed or slighted; all are free to pursue their lawful avocations, with reasonable security for person and property.
GOVERNMENT BY DISCUSSION
241
The system serves a community in which the ends of government are accepted without cleavage, and provides an efficient administra- tion within an accepted social and economic framework, bound up with a laissez-faire economy. It tends therefore to be based on the maintenance of the status quo.
1.
1
CHAPTER XV
EPILOGUE
THE evolution, form and practice of the constitution having been described in the foregoing chapters, it only remains to look at the prospects.
The British declared policy of preparing the colonies for self- government within the Commonwealth continues unchanged. This was confirmed in regard to Hong Kong by the Colonial Secretary at the first reading of the Urban Council (Amendment) Bill of 1956, which increased the number of its elected members from four to eight. He said on that occasion 'such a balanced increase in the proportionate representation of elected members, accords with the policy of Her Majesty's Government for a steady but gradual advance in the constitutional field and the Government has accordingly accepted these proposals'.' But the implementation of this policy has been held up by abnormal conditions.
Hong Kong could not defend itself, and to set up self-governing institutions to which Britain's present responsibilities could be transferred, is clearly impracticable. It is extremely doubtful if it would be economically viable without the currency link with sterling and the advantage of Commonwealth preferences; for example, there is understandable anxiety over Britain's possible membership of the European Economic Community.
The refugee influx has put back the clock. The 1961 Census gave the number of immigrants since September 1947 as 827,222 or 26-43% off the total population. If there is added the estimated balance of immigration for 1961 of 10,000, and that for 1962-an exceptional year of 208,000, then at the end of the year 1962, some 1 million out of an estimated total of 3 million were immigrants. There is the added complication of factional rivalry between supporters of the Chinese People's Republic and those who, for various reasons, look to the Republic of China in Taiwan.
One further point has to be made. The Peking Government has shown marked sensitivity over frontier relations with its neigh- bours. The reason is clear. The Chinese, whether Communists or Nationalists, have never been reconciled to the territorial and other
1 Hong Kong Hansard 1956, p. 30.
EPILOGUE
243
concessions which they were forced to yield under the so-called Unequal Treaties during the period of their national weakness. It would be clearly unrealistic to imagine that the demand for boundary revision will stop at the Shum Chun River.
These considerations point to the impracticability of any far- reaching constitutional change in Hong Kong, and to the continu- ance of special relations with Britain, which in the absence of political agitation appears to be not unacceptable, or with some other external authority such as the United Nations. On the other hand, they do not point to the impossibility of any change at all. There seems no reason why constitutional progress should be frozen at the present stage of its evolution.
The British tradition of free political institutions is too firmly rooted to be disregarded, except for compelling reasons; and the British people can have little satisfaction in being asked to turn their backs on that tradition particularly in face of a resurgent Asia. Lord Lansdowne, the Minister of State for Colonial Affairs, on his visit to Hong Kong in September 1963, was reported to have defended the form of government here as a 'workable system, taking all circumstances into account'. This cannot be denied. The judgment, however, rests on the assumption that being 'workable' is the sole criterion and ignores the fact that in the long term government can be based only on the alternatives of popular consent or the security forces.
The problem is how to modify the constitution so as to reconcile administrative efficiency with the legitimate claims of responsible citizenship. Efficiency cannot be an end in itself, for government is made for man and not man for government. A government, however exacting the tests by which its personnel is recruited, which is not rooted in the loyalty of responsible citizenship is unlikely to survive an onslaught in which fifth-column techniques are employed. It is argued that the apathy shown in the Urban Council elections and the conspicuous absence of political agitation demonstrate clearly that no demand for constitutional change exists. One reason for this political quiescence is awareness of the fact that important decisions affecting the future of Hong Kong will be taken in various world capitals rather than in Hong Kong itself. So far as the Chinese majority are concerned there has been no tradition of popular government among them. In the dominant Confucian system, ethics and politics were closely bound up and
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good government was founded on good human relations. The state was the family writ large, and obedience to the state was an extension of filial piety. The state interfered little with the daily lives of the people, because it was based not so much on law, as on each individual carrying out his moral obligations. The Chinese therefore did not look to the state as the instrument of social betterment, but rather relied on the family and generally asked only to be left alone. The Chinese concept of state government was that of a moral order for which no man-made law could be a substitute, and that the same moral order that made for happy family life applied to the state, which was regarded as an enlarged household. They were thus unreceptive to a Western order based on respect for law, for law was meant only for peoples who lacked the moral basis which alone made civilized life possible. To Europeans, this appears to be anarchy, but to the Chinese, law cannot be an adequate substitute for the moral obligation. So the Chinese in Hong Kong have shown a natural hesitation in adopt- ing Western ideas of law and administration, which should not be confused with apathy. With regard to the Europeans, so few are permanent residents, that there is little incentive for interest in constitutional change.
It is also true that the local people, Europeans, Chinese, Portu- guese and Eurasians, whose families are rooted in Hong Kong which is their home, have not demanded self-government. The probable reason is that they feel more secure under the existing régime. In addition, Government would be unlikely to introduce a franchise sufficiently restricted to give them control and make them a privileged aristocracy, and with a broad franchise, their influence would be lost. The answer is that little can be done unless the bulk of the people living in Hong Kong regard it as their home. Talk of constitutional progress is idle in the absence of a commu- nity, conscious of its own identity, demanding its own way of life, and willing to share fully in its defence. Such a community would be neither Chinese nor European but Hong Kong. Hong Kong is rapidly changing but few would claim that such a community already exists. Indeed, it still has many communities differing in race, creed and social customs, and tending to draw themselves apart socially but to be brought together by economic factors. One difficulty in integrating people into one community is that Western influences by which the traditional Chinese life is being
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245
eroded, appear to operate with diminishing force as one goes down the social and economic scale. Such a Hong Kong community could come into being, given sufficient time and freedom from external pressures to allow it to develop along its own lines.
Two further assumptions have to be made. First, the liberal character of the present régime must be maintained. The police admittedly have stronger powers than normal because of the extent and seriousness of crime, but freedom of speech, of the press, of conscience, of association, protection against arbitrary arrest given by the writ of habeas corpus, equality of all before the law, give freedom to the law-abiding citizen to go about his business in security. Secondly, Hong Kong must be able to offer to its people a reasonable standard of living through industry and trade, backed by opportunities in the educational system for those who can benefit by them.
These considerations, point to the dilemma facing British policy in Hong Kong of deciding what to do in an admittedly difficult situation without repudiating constitutional principles which the British have given to the world. Assuming the necessity for continued association with Britain, then constitutional advance must be gradual and evolutionary. Experience elsewhere shows that the hope of early self-government creates tension, a jockeying for political influence, and ultimately generates a cataclysmic rush towards the final transference of power.
Discussion of contitutional change naturally focuses attention on the Legislative Council and the extent to which it represents or could be made to represent public opinion. Of the eight unofficial members, six are nominated by the Governor and one each by the the Chamber of Commerce and unofficial Justices of the Peace. In the absence of any broad electoral system, the justification for nominated members as argued by Sir Man Kam Lo in 1949, remains, for it is the only way by which the representation of important sections of opinion or important minorities can be assured. A system containing a nominated element must therefore continue. To suggest that the field from which nominated members are chosen should be widened is no criticism of the present nomin- ated members. On the contrary, their devotion to the public service and to the interests of Hong Kong must be acknowledged. Many would agree that other bodies exist in Hong Kong, free from external affiliation or control, which might claim to express important
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GOVERNMENT AND PEOPLE 1841-1962
sections of opinion, besides the two already enfranchised. The University Convocation consisting of graduates, the Federation of Hong Kong Industries, the Heung Yee Kuk, the unofficial members of the Urban Council, or, what almost amounts to the same thing, the Urban Council electoral body and the Kaifongs. There could be little of a revolutionary nature about this if the existing arrangements were retained whereby members had to be British subjects and nominations remained technically those of the Governor.
The sphere of local government centred around the Urban Council might provide opportunities of constitutional advance. This was the basis of the abortive Young Plan. Here again, tribute must be paid to the unofficial members of the Council for accept- ing an office with a heavy burden of committee work. With the rapid growth of population, the efficacy of one Urban Council to reflect and deal with the needs of over three million people, must sooner or later be questioned. The growth of existing and projected satellite towns at Aberdeen, Shaukiwan, Shatin, Tsuen Wan, Castle Peak, Yuen Long and Kwun Tong might give the opport- unity for a new look at local government with the object of keeping Government in closer touch with the People. The rioting in Kow- loon of October 1956, due perhaps to economic and social factors, clearly revealed the existence of an underlying malaise, and, it may be, an unbridged gap in communication between the Government and the People. The interest of the people in their own immediate and local problems such as hygiene, public amenities, housing and water supply, etc., might be enlisted through a number of local councils, from which the Urban Council might then be partly recruited by indirect election. If the present Urban Council's administrative powers were interpreted broadly to include policy making, then, it might conceivably develop into the lower house of a bicameral legislature with powers restricted to that area of administration covered by the present Urban Services Department, the Legislature remaining unicameral in the remaining fields of legislation. This is not the place to examine in detail the consequent problems of devising electoral machinery and liaison with govern- ment departments, but of course they would be considerable.
This brief review of principles cannot be closed without pointing out that any constitutional change, however seemingly minor, must have considerable reprecussions in the economic and political
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fields. On the economic side, Hong Kong must continue to rest, as it has done in the past, upon the maintenance of its trade relations with the rest of the world. Latterly it has become an important centre for the movement of capital, of which it is a net importer. Constitutional change may involve a lessening of confidence in its economic and financial stability.
On the political side the existing system of government rests on a delicate poise which at least works. Public proceedings in the Legislative Council appear formal, but real debate takes place in private. Public debate of government action and policy would certainly carry with it the necessity of seeking a new equilibrium within the constitutional set-up.
Whether these risks are taken depends on the importance attached in Hong Kong to those values which underlie political life in the West.
HONG
KONG
APPENDICES
A. Changes in the Constitution of the
Executive Council
Year
Number of Official Members exclusive of
Number of Unoffiial Members
the Governor
1843
3
1844
4
1845
3
1865
3 [All ex officio]
1872
4 [3 ex officio]
1875
5 [3 ex officio]*
1884
6 [4 ex officio]
1896
6 [4 ex officio]
2
1926
6 [4 ex officio]
3
1928
6 [5 ex officio]
3
1946
7 [5 ex officio]
4
6
1948
6 [5 ex officio]
ARMORIAL BEARINGS OF HONG KONG
Armorial bearings were presented to Hong Kong on behalf of Her Majesty the Queen by H. R. H. the Prince Philip, Duke of Edinburgh, when he visited the Colony in March, 1949. The crest consists of a royal lion wearing the imperial crown and holding a pearl, representing Hong Kong as the 'Pearl of the Orient'. The shield carries pictures of a naval crown symbolizing the Colony's link with the Navy and Merchant Navy, battlements indicating the Battle of Hong Kong in 1941, and two Chinese junks to indicate trade on the seas surrounding the Colony. A royal lion and Chinese dragon support the shield and crest, symbolising the British and Chinese aspects of the Colony. They stand on a green mount surrounded by water, an allusion to Hong Kong Island. [From The Hong Kong Annual Report 1959, with permission.]
*A special additional appointment because the Senior Military Officer refused to attend Meetings of the Council.
B. Changes in the Constitution of the Legislative Council
Number of
Official Members
exclusive of the Governor
3
5
Number of Unofficial Members
4 [including 1 official]
Year
1843
1844
1845
3
2
1850
3
3
1857
5
3
6
1858
1865
1884
5 6 7
5 t
5
1896
7
8
9
1929
7
Q
1946
7
8
1947
8
9
1951
13
12
1964
† From 1865 onwards, five officials hold their seats ex officio.
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APPENDICES
C. List of Unofficial Members of the Executive Council, 1896–1941
ARRANGED IN CHRONOLOGICAL ORDER
Catchick Paul Chater James Jardine Bell-Irving
James Johnstone Keswick Charles Wedderburn Dickson Thomas Henderson Whitehead
1896-1926 1896-99,
Broker
Jardine, Matheson & Co.
Jardine, Matheson & Co. Jardine, Matheson & Co. Chartered Bank of India,
APPENDICES
251
D. List of Unofficial Members of the Legislative Council, 1850-1941
C J
=
=
ARRANGED IN CHRONOLOGICAL ORDER
Elected by the Chamber of Commerce. Elected by the unofficial Justices of the Peace.
Jardine, Matheson & Co.
Jamieson, How & Co.
Charles Stewart Sharp William Jardine Gresson
Edbert Ansgar Hewett
Henry Keswick
Sir Henry Spencer Berkeley,
K.C.
1901-02 1899, 1900-01 1902-06 1902 (temporary)
1902 (temporary) 1904, 1905, 1908
(temporary) 1906-1915
Australia and China Gibb, Livingston & Co. Jardine, Matheson & Co.
P. & O. Steam Navigation
Co.
Jardine, Matheson & Co.
Barrister
1908, 1910
(temporary)
1908
(temporary)
Henry Ernest Pollock,
K.C.
1911, 1912,
Barrister
1921-41
Ernest Hamilton Sharp, K.C.
1916-22
Barrister
David Landale
1916, 1918
(temporary)
David Jardine
James Frost Edger Joseph Jardine
George Lyall
John Dent
Alexander Perceval
Angus Fletcher
1850-1857
1850-1857
1857-60
Jardine, Matheson & Co.
1857-61
Lyall, Still & Co.
1857-60, 1866-67 Dent & Co.
1860-64
Jardine, Matheson & Co.
1860-62
Fletcher & Co.
1861-66
Dent & Co.
Charles Wilson Murray
1862-64
Birley & Co.
1864-67, 1872-75 Jardine, Matheson & Co.
1864-65
P. & O. Steam Navigation
Hugh Bold Gibb
1860-70, 1879