What Edward Yiu's Reprieve Tells Us about Decision-making in Hong Kong

The special by-election to replace four of six empty seats in Hong Kong’s Legislative Council (LegCo) is scheduled for March 11. But unless the government does a speedy rethink, one name will not be on the candidate lists. Agnes Chow Ting (周庭) was the choice of all the main pro-democracy parties. They agreed in advance that she should contest the election on their behalf in the Hong Kong Island constituency, so much so that the primary selection contest they organized in two other districts on Jan. 14, was not necessary in this one.

As the Monday Jan. 29 deadline for nominations approached, however, word began circulating among journalists covering the story that two pro-democracy candidates were DQ … going to be disqualified and barred from contesting the March 11 by-election. One was Agnes Chow. The other was Edward Yiu Chung-yim (姚松炎), who won the democrats’ January primary selection contest for the Kowloon West constituency. The other two pro-democracy candidates … Gary Fan Kwok-wai (范國威) in New Territories East and Paul Zimmerman in the Architects/Surveyors Functional Constituency … had passed the “entrance gate” with their candidacies approved by Hong Kong’s Electoral Affairs Commission.

The six vacant LegCo seats are the product of the oath-taking saga. Two legislators are still appealing their disqualification with final judgements yet to be handed down. By-elections for those two seats will be held at a later date if necessary. This all began in October 2016, when a total of 15 newly-elected Legislative Councilors embellished their oaths-of-office during the swearing-in ceremony. This provoked Beijing officials and a month later, in November, the central government issued an Interpretation of Hong Kong’s Basic Law constitution, Article 104, on oath-taking. The Interpretation mandated respectful word-for-word oath-taking under pain of immediate disqualification. No second chances.

Hong Kong courts then selectively and retroactively disqualified six of the legislators. Why only six were singled out has not been adequately explained. Nor have the awkward retroactive judgments disqualifying the six. Many appeals have sought redress on the selective and retroactive grounds but to no avail, although the two appeals are still pending.

Demosisto and Agnes Chow

The official reason for rejecting her candidacy is political: because she is an advocate of self-determination. This is one of the new advocacies to emerge in Hong Kong along with independence, city-state autonomy, localism, genuine autonomy, and so on. Beijing lumps them all into a single category, excoriated in mainland parlance as the political crime of “separatism.”

Hong Kong was promised freedom of expression as part of its new post-colonial “one-country, two-systems” governing principle and separatism is not a crime here, although it may be if Beijing gets its way and Basic Law Article 23 legislation on national political security is finally passed. But with the new restrictive vetting system introduced ahead of the September 2016 LegCo election, such freedom already does not extend to “separatist” ideas in this context. In other words, they are not allowed for aspiring LegCo candidates.

Credit: AP/達志影像

Agnes Chow is an advocate of self-determination because she is a member of Demosisto, the new political party, successor to the middle school activists group Scholarism. Both groups were founded by Joshua Wong and other like-minded young people. Chow made her name as the bilingual spokesperson for Scholarism, when they launched their successful 2012 campaign against the government’s plan to introduce compulsory political education for all primary and secondary school students.

Demosisto’s party manifesto does call for Hong Kong self-determination. But the party, which was founded in April 2016, stands out among other new youth groups since it has been careful not to jump uncritically on the independence and localist bandwagons that have gained momentum in recent years.

These ideas appeared earlier but can be traced especially to Beijing’s final 2014-15 refusal to allow “genuine” universal suffrage elections here as had long been promised. That refusal is also what transformed Benny Tai’s (戴耀廷) Occupy Central civil disobedience campaign into the Umbrella-Occupy Movement street blockades that closed down major traffic arteries for 79 days in the fall of 2014.

Demosisto’s political stance is actually much like the original liberal assumptions in the 1990s, when everyone just assumed that Hong Kong’s new Basic Law constitution meant what its words said about universal suffrage elections, autonomy, freedom of expression, and judicial independence.

It follows that Agnes Chow has no problem with declaring her allegiance and loyalty simultaneously to the central government and to Hong Kong’s official one-country, two-systems status within the People’s Republic. Unlike a few others of her generation, she also had no qualms about signing the new loyalty oath confirmation form introduced in 2016, confirming such allegiances.

The government officials who make these candidate qualification decisions are civil servants, referred to for this assignment as returning officers under the authority of Hong Kong’s Electoral Affairs Commission. It may be an independent body but it is also meticulously following Beijing’s current definitions of the words and concepts in question. Agnes Chow’s returning officer disqualified her on grounds that Chow is a leading member of Demosisto, which advocates self-determination.

As proof, the returning officer cited the party’s website and an article published in the Chinese-language newspaper Ming Pao on June 27, 2016, on the party’s plans for a movement to achieve self-determination. The plans include a referendum to be held in due course whereby the people of Hong Kong would be asked what form of government they would prefer when the Basic Law’s as yet undefined 50-year shelf-life expires. One of the options the party promised to include was independence. The officer held that as a founding member of Demosisto, Chow gave every indication that she supported the party’s goals. The officer therefore concluded that, from all Chow’s public statements, she definitely does not support Hong Kong’s Basic Law or respect the Hong Kong Special Administrative Region (Apple Daily, Jan. 28).

It might also be relevant that Demosisto’s websites contained some negative views about Beijing. For example, the English version still says: “Demosisto aims to achieve democratic self-determination in Hong Kong. Through direct action, popular referenda, and non-violent means, we push for the city’s political and economic autonomy from the oppression of the Communist Party of China (CPC) and capitalist hegemony.” The Chinese website has recently been toned down by deleting its most provocative statements (South China Morning Post, Jan. 30).

Chief Secretary Matthew Cheung (張建宗), who is Number Two in the Hong Kong government hierarchy, made a statement supporting the decision. He said all the returning officers “have all along strictly adhered to the Basic law, relevant legislation and legal advice, as well as the principles of political neutrality and impartiality … ”

Cheung continued: “Let me stress that ‘self-determination’ or changing the Hong Kong Special Administrative Region system by referendum which includes the choice of independence is totally inconsistent with the constitutional and legal status of the Hong Kong Special Administration as stipulated clearly in the Basic Law, as well as the established basic policies of the People’s Republic of China regarding Hong Kong. Upholding the Basic Law is a basic legal duty of a legislator. If a person advocates or promotes self-determination or independence by any means, he or she cannot possibly uphold the Basic Law or fulfil his or her duties as a LegCo member.” He went on to say that if anyone didn’t like the decision they could appeal through the courts.

The strange case of Edward Yiu

By late afternoon Friday, Jan. 26, the word was circulating that two prospective pro-democracy candidates, Agnes Chow and Edward Yiu, were both going to be disqualified. Chow’s disqualification was announced last Saturday, while Edward Yiu’s fate hung in the balance throughout the weekend. But by the morning of Monday, Jan. 29, the day nominations closed, officials were evidently having second thoughts. Pro-establishment opinion leaders had been expressing reservations about the political wisdom of banning any of the pro-democracy candidates. And former democrat Ronny Tong (湯家驊), now a member of the Chief Executive’s Executive Council cabinet and the new chief bell weather on such controversial political matters, was saying that he could see no grounds on which Edward Yiu could be banned (SCMP, Jan. 29).

Finally, just an hour before the nomination period closed on Jan. 29, and with an under-study back-up candidate standing by to submit his nomination application form immediately, just in case, Edward Yiu received notice that his candidacy had been officially approved.

Unlike Agnes Chow, few people had ever heard of Edward Yiu until he scored an upset victory in the 2016 LegCo election. This he did by winning the obscure architects/surveyors Functional Constituency seat. As an academic rather than a practioner, he only accomplished this feat because the conservative pro-establishment professionals in the sector split their votes between two other candidates.

photo credit: 周庭、姚松炎Facebook

Edward Yiu’s problems began when he embellished his oath in a modest manner during the October 2016 swearing-in ceremony. He then found himself among the six new legislators selectively targeted by the government. Two of the six had been immediately bared from taking their seats. But Edward Yiu was one of those who were initially allowed to retake their oaths, which he had done properly, after which they all took their seats in the normal fashion. He had served as a legislator for several months.

But in due course, in July, 2017, all six were formally and retroactively disqualified by the Hong Kong courts for having violated, during the October, 2016 swearing-in ceremony, Beijing’s November, 2016 Interpretation of Hong Kong’s Basic Law Article 104, on oath-taking.

Rather than try to regain his specialized Functional Constituency seat through the appeals process, or via the March 11 by-election where his chances were nil due to the composition of the constituency, Yiu decided to try for one of the popularly-elected Geographic Constituency seats. This led to his victory in the democrats’ January 14 preliminary selection contest for the vacancy in Kowloon West. But pro-establishment opinion leaders began protesting immediately that the six legislators had been banned for the entire 2016-2020 term, thereby making him ineligible to return to LegCo until the 2020 election.

While he was waiting for word from the Electoral Affairs Commission about his candidacy last weekend, Edward Yiu had some interesting stories to share with the journalists who were waiting with him. His stories revealed something about how the mysterious anonymous individuals known as returning officers go about their work. The officer assigned to vet Kowloon West candidates requested that Yiu answer several questions. One concerned a statement he had allegedly made about Hong Kongers deciding their own fate. Yiu said he had never made any such statement.

The officer also wanted to know about Edward Yiu’s recent trip to Taiwan along with Joshua Wong and others. The returning officer wanted to know what Yiu thought about the New Power Party, a Taiwanese group that advocates Taiwan independence and had hosted the Hong Kong visitors. Hong Kong’s pro-Beijing press had taken great interest in the trip and ran full page stories on the visit featuring photographs of Yiu and Joshua Wong (Ta Kung Pao, Nov. 16, 2017). The officer wanted to know if Yiu supported a similar independent stance for Hong Kong. The officer also noted that Yiu had repeatedly criticized Beijing’s November 2016 Interpretation on oath-taking and wanted to know whether or not Yiu accepts it (Standard, Ming Pao, HKEconJournal, Jan. 29).

On the front line: Judges and returning officers

These two cases featuring fallout from the oath-taking saga lie at the heart of Hong Kong’s one-country, two systems relationship with Beijing. They also illustrate just how difficult managing the interface between the two systems has become. The principal front-line actors in this saga are Hong Kong’s judges and the electoral returning officers. They and everyone speaking for them are at pains to emphasize their independence. But it’s also obvious that they are bending over backwards to fulfill what they think are the central government’s political demands. The question Hong Kongers keep asking, in many different ways, is whether it’s really necessary to bend back quite so far.

The decisions and explanations, from the judges and officers, call to mind the old saying about religious converts. They become sticklers with respect to all the rules about fasting and abstinence and Holy Day observations … whereas everyone else knows how to cut a few corners and still remain within the ranks of the faithful.

Evidently, from all anyone has been willing to admit, no one in Hong Kong’s Justice Department ever asked Beijing if its November 2016 Interpretation on oath-taking was meant to be applied retroactively and to become “what the law has always been” dating back to July 1, 1997. The judges were evidently following their own common law precedents on the interpretation of laws. But having made that initial decision, they are now compounding the consequences many times over by retroactively disqualifying every oath-taking case that comes before them regardless of the extenuating circumstances.

Similarly, Hong Kong’s returning officers must now be assuming that their job is to serve as political thought police and assess the meaning of every word uttered by prospective candidates. Nor do Hong Kong’s returning officers seem inclined to question Beijing’s conflation of all “separatist” tendencies into a single common subversive category. But is it really necessary for Hong Kongers to accept Beijing’s rigid definition of such indeterminate concepts as self-determination and autonomy when those ideas are open to so wide a range of meanings and practical applications?

Back in 1997, everyone thought Hong Kong officials and judges would be standing on the front-line, along the interface between the two systems, serving to arbitrate and mediate and moderate the inevitable contradictions. Instead, these oath-taking and candidate qualification decisions have compounded the contradictions as one precedent weighs upon another and Edward Yiu was left on his own, to dismantle the case that was obviously being built against him.

Luckily for him, political expediency came to the rescue. It seems to have been an arbitrary decision that saved him in light of the backlash the DQ cases are causing both in Hong Kong and elsewhere. But at least someone realized that it is possible to cut rigid corners and still remain among the ranks of the faithful who profess allegiance to the central government.

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Editor: David Green