What you need to know
The latest twist in Hong Kong's electoral woes opens a debate on the difference between self-determination and independence.
Since 1997 when Hong Kong’s new Basic Law mini-constitution went into effect, Chapter III on Fundamental Rights and Duties held out the promise that permanent residents “shall have the right to vote and the right to stand for election” (Article 26). Also since 1997, when colonial Hong Kong returned to Chinese rule, those residents have regarded Hong Kong’s judiciary with its British common law tradition as a source of protection against the possible imposition of mainland China’s very different Communist Party-led way of political and legal life. That sense of reassurance also derived from the Basic Law, which promised that “the judicial system previously practiced in Hong Kong shall be maintained” (Article 81).
But positioned as it is along the interface between the two very different, Hong Kong and mainland systems, Hong Kong’s judiciary has been drawn inexorably into the role of enforcer. Local courts are “bound,” as the saying goes, to obey official Chinese mandates and transpose them for use via Hong Kong law. That legal compromise should have been foreseen given the awkward “one-country, two-systems” lean-to arrangement designed for Hong Kong’s post-1997 governance. But it has been something of a shock nonetheless, to watch as Hong Kong courts with their proud tradition of judicial independence have issued a series of politically charged judgments during the past two years.
As a result, Chinese mainland rules are being slowly locked onto the Hong Kong system where they are circumscribing, one judgement at a time, the promised Article 26 rights to elect and be elected plus the freedom of political expression as well. Even where there might be options and margins for maneuver, the judgments invariably trend toward the imposition of mainland rules and seem disinclined to keep them at bay.
The DQ purge
This new threat to the “Hong Kong system,” or what post-1997 Hong Kongers thought they had been guaranteed by all the Basic Law’s promises, began with the disqualification (DQ) of two newly-elected Legislative Councilors in November 2016. Four more legislators were disqualified several months later, all for the same offense. They were all brought down by judgments issued over the course of a one-year period in 2016-17. The six were among those who had embellished their oaths by adding pro-democracy slogans to the required words during the October 2016 swearing-in ceremony following the September 4, 2016 Legislative Council (LegCo) election.
But the judgments were issued retroactively, with respect to the oaths that had been taken in October and Beijing’s Nov. 7 Interpretation of Basic Law Article 104 on oath-taking. Beijing’s Interpretation mandated word-for-word solemnity. The Hong Kong courts’ disqualifying judgments were also issued selectively since over a dozen legislators-elect had similarly embellished their oaths in October. This sequence of events has become known as the oath-taking saga, code-named DQ for easy reference, and has given promises about Hong Kong’s “rule of law” a hollow ring.
Sentencing and re-sentencing
The DQ judgments preceded re-sentencing in the case of three student leaders: Joshua Wong, Nathan Law, and Alex Chow. Their disruptive actions on the night of Sept. 26-27, 2014, precipitated Hong Kong’s 79-day Occupy movement in 2014. Amid the oath-taking saga that was accompanied by blasts from Beijing officials directed against molly-coddling Hong Kong judges, the three “sparks” were called back to court after having already served their light sentences. Additionally, they were given prison terms of sufficient duration to remove them from active political life and electoral participation for years to come.
Amid the backlash of negative publicity, including both international and local, Hong Kong judicial authorities had second thoughts and retracted the stern re-sentencing verdict. But too late to undo the damage done to their reputation for judicial independence and rule-of-law intonations. The reversal of the re-sentencing verdict also came with a warning: the new stricter sentencing guidelines that mandate prison terms for disruptive unlawful assembly, whether in the name of civil disobedience or not, are to be the new norm.
The re-sentencing was retracted mainly because of its retroactive imposition … a principle that was ignored in the case of the six disqualified Legislative Councilors, although one last appeal on that basis is still pending for two of them. The new stricter sentencing guidelines for unlawful assembly had been issued after the first trial and initial sentencing of the three “sparks.”
Disqualifying the candidates
But now has come another Hong Kong court judgement, adding another layer of qualification and disqualification. The right even to contest an election is also being circumscribed by the imposition of mainland-mandated norms. This new challenge actually predates the oath-taking saga but has only just reached a more definitive conclusion in the latest court judgement.
The new ruling issued on Feb. 13, concerns a petition by an aspiring candidate for the September 2016 Legislative Council election. He is Andy Chan Ho-tin (陳浩天) whose pre-election paperwork was challenged by the then presiding election official in his New Territories West constituency. He was not allowed to contest the election on grounds that, as convener of the new Hong Kong National Party, he advocated Hong Kong independence. He therefore could not claim to be sincere in pledging to uphold Hong Kong’s Basic Law status as an autonomous Chinese territory, in accordance with the requirement for all LegCo candidates and members.
A handful of hopefuls were disqualified ahead of the September 2016 election on similar grounds. The political vetting followed a new confirmation form introduced by the Hong Kong government ahead of the September election. This new requirement followed in the wake of Hong Kong’s 2014 Occupy movement along with the upsurge of new ideas and demands for “genuine” autonomy. These followed in turn from Beijing’s refusal to allow the promised electoral reforms on any terms other than its own …. meaning mainland-style universal suffrage but only to confirm Communist Party-endorsed candidates.
The new confirmation exercise was very specific. Simple signed pledges to uphold the Basic Law as required by the original nomination procedure was no longer enough. Potential candidates also had to pledge specifically to uphold Basic Law Articles 1, 12, and 159 (4). These state, among other things, that Hong Kong is an inalienable part of the People’s Republic and that Hong Kong comes directly under the central government in Beijing.
The two most prominent candidates disqualified at that early stage, in the summer of 2016, were Andy Chan and Edward Leung Tin-kei (梁天琦), who is currently on trial for his role in the 2016 Mong Kok Lunar New Year riot. Chan was and is an unapologetic advocate of Hong Kong independence. But unlike Chan, Leung actually stood a good chance of electoral success. He was an articulate leader of the localist Hong Kong Indigenous group, now disbanded, and was calling for genuine autonomy. He had also promoted using non-peaceful means of achieving it if all else failed. Hence the Mong Kok riot that he and his friends are accused of deliberately provoking.
The new confirmation form was issued, and candidate disqualifications announced in the summer of 2016. But all this was done without prior consultation, legislation, judicial procedure, official explanation, or even advice on what to expect if candidates refused to sign or committed the threatened criminal offense of making false declarations. In fact, some candidates did not sign the new form and were allowed to contest the election anyway.
Chan’s petition asked the court to rule on the expanded political vetting procedure, and on his own disqualification. He also questioned the legality of allowing ordinary low-ranking district-level officials to vet political beliefs and make the all-important decision about who could and could not stand as a candidate. He argued that his constitutional Basic Law rights to free speech and electoral participation had been unjustly circumscribed.
The court was happy to oblige even if the task did take over a year to complete. But the Feb. 13, 2018, ruling provided little comfort for those seeking relief from the growing imposition of mainland standards on Hong Kong’s political life. On the contrary, the court vigorously reinforced them every step of the way.
In his 87-page ruling, Judge Thomas Au held that the government-appointed district-level civil servants seconded to this task, known here as returning officers, were not only responsible for presiding over the formalities by verifying relevant paperwork. They also had the right and the responsibility to vet in substantive terms aspiring candidates’ political beliefs and to qualify or disqualify candidacies on that basis.
In Andy Chan’s case, he had completed the basic original forms with the standard pledge to uphold Hong Kong’s Basic Law. But he had refused to sign the new confirmation form and had refused also to answer the returning officer’s questions, arguing that the officer had no right to vet and judge political beliefs. The officer had then consulted the many materials that Chan and his group were publicly circulating. Since these included calls to abolish the Basic Law and use the LegCo election as a first step to promote Hong Kong independence, the officer had concluded that Chan was not sincere when he signed the original form pledging to uphold the Basic Law.
Judge Au agreed. He reiterated that the Basic Law is Hong Kong’s constitutional foundation document. Since Chan had failed to satisfy the basic political litmus test by demonstrating acceptance of the Basic Law’s provisions, the officer’s decision was the correct one and he had the right to make it. Defense Counsel Gladys Li advanced all possible countervailing arguments, all to no avail.
Freedom of political expression is not unlimited. But limitations must be balanced and proven necessary. In this case, however, the restriction is justified by the constitutional obligation of all officials and aspirants to uphold the Basic Law. Also dismissed was the possibility that someone might uphold the Basic Law in practice as long as it remained the law of the land, while nevertheless arguing, whether hypothetically or not, for independence as a better alternative. Precedents to the contrary elsewhere did not signify here in this case, except for the one that did.
Judge Au noted, however, that prospective candidates should be given a chance to explain themselves and their political beliefs. He emphasized that as a precondition for actually invalidating a nomination and banning a candidate, there must be “cogent, clear and compelling materials to plainly show the lack of the requisite intention” to honor any formally-made pledges.
The Feb. 13 judgement also called attention to an overlooked additional qualification written into Beijing’s Nov. 7, 2016, Interpretation of Basic Law Article 104 on oath-taking. The Interpretation has been used by the Hong Kong courts as the ultimate authority for disqualifying the six elected legislators. But the Interpretation begins with a proviso that pledging to uphold Hong Kong’s Basic Law, as included in official oaths-of-office, is also a legal requirement and precondition for standing for election.
Never say die
Little wonder that democracy campaigners are saying the Legislative Council is a lost cause. Not only was it designed in advance … via the divided two-house structure and by proportional representation … to block their advance and ensure “safe” pro-government majorities forever. Now comes a new constraint: political restrictions even on those who aspire to join. The next requirement, say activists, will be to DQ everyone who opposes passage of the Article 23 national political security legislation, which really will signal the end of the road.
But that end has not yet arrived. Judge Au held out a glimmer of hope and campaigners hastened to exploit the opening. If only they had more time they might have been able to save the candidacy of Agnes Chow (周庭), disqualified from the March 11 by-election to replace Nathan Law (羅冠聰), one of the legislators disqualified in the oath-taking saga.
Chow’s candidacy was derailed because she and her party, Demosisto, advocate self-determination. But her returning officer never asked her to explain how she could sign all the forms pledging loyalty and allegiance and still advocate self-determination.
Candidates’ right to explain themselves figured prominently in Judge Au’s ruling. Agnes Chow’s returning officer evidently based her decision on a limited understanding of the possible differences between demands for independence and for self-determination. The officer appears to have simply adopted Beijing’s official declarations without thinking to inquire further.
Actually, there has not been a major effort by campaigners here to define and differentiate between the two terms. That task now lies before them … along with the possible future candidacies of Chow and her party-mates Joshua Wong and Nathan Law
But equally fast into the opening also leaped Beijing official Li Fei, famous for his nine-tripods iron-clad pronouncements from on high. Sensing danger where Hong Kong activists see opportunity, Li repeated the official line: independence and self-determination are one and the same, he said, two sides of the same coin … both equally disloyal separatist advocacies that stand in violation of the Basic law.
To which newly-elected activist Eddie Chu Hoi-dick (朱凱廸) … who somehow managed to escape the 2016/17 DQ purge …. responded with a challenge for the next round in the ongoing struggle: a debate on self-determination. He invited Li Fei to make the first move beginning with a definition of what he meant by self-determination.
Read next: How Hong Kong's Umbrella Movement Is Being Silenced
TNL Editor: Morley J Weston