POST-OCCUPY PAYBACK … In Slow Motion

No one knew exactly what to expect from central government officials in Beijing when Hong Kong’s Occupy protest movement erupted on September 28, 2014 and went on to blockade major city thoroughfares for 79 days. The last of the encampments were not cleared until mid-December.

Since Hong Kong’s pro-Beijing media remained in full fighting mood throughout … from the 2013-14 preparations, during the 79 days, and ever since … it can be safely assumed that Beijing officials were not pleased. But by and large, Hong Kong’s one-country, two-systems way of life was allowed to play itself out without any direct observable Beijing intervention.

The Hong Kong government ignored protesters demands for a re-think of Beijing’s restrictive August 31, 2014 electoral reform mandate that triggered Occupy; Hong Kong’s police force handled all the provocations on its own; and the protest eventually wound down. A series of high-profile arrests were made but mostly not followed up with court action. No one seemed in any great hurry to exact retribution. In this way, after Hong Kong legislators vetoed the offending electoral reform proposal in June 2015, political life returned more or less to normal.

A series of local elections followed. They began in late 2015, with three in 2016, and the last in March this year. Throughout all that time, the Hong Kong government, conservatives, pro-Beijing loyalists, and the pro-Beijing media did everything they possibly could to discredit everything and everyone associated with the Occupy protest movement.

In 2015, Zhang Dejiang who is currently the top-ranking Beijing official responsible for overseeing Hong Kong affairs, enjoined loyalist politicians to be sure and win five more seats in the next Legislative Council election. The extra seats would secure the super-majority needed to pass the electoral reform proposal that Occupy supporters were able to veto and block with their slim one-third minority.

But such “soft-power” ordinary Hong Kong-style politicking didn’t work. Zhang Dejiang’s wish did not materialize. Conventional conservative wisdom had it that the voters would punish Occupy sympathizers and pan-democratic politicians for all the disruption they had caused. All including both moderates and radicals were represented in the June 2015 Legislative Council vote to veto Beijing’s electoral reform mandate. Yet voters rewarded them all, including many young Occupy generation candidates. In all the post-Occupy elections, pro-democracy candidates did better than anyone expected.

Whether the official laid back approach would have continued indefinitely in the absence of what happened next will doubtless never be known. Probably it would not have continued indefinitely because the resolve of all pro-democracy candidates seemed to have been strengthened by arguments the younger generation brought with them from the barricades and the whole Occupy experience.

Many had concluded that no matter how reasonable, righteous, and self-evident Hong Kong’s demands might be, Beijing officialdom was not listening and would never listen. The next step then was to demand the autonomy, the genuine kind that Hong Kongers thought they had been promised by all the handover guarantees Beijing had offered before 1997. People were beginning to think maybe the promises had not been made in good faith after all, but only to ease the transition from British to Chinese rule.

In any case, scattered among this angrier disillusioned younger generation’s arguments are some now demanding not just “genuine” autonomy, but self-determination, and even independence. Probably it was the link between such newly defiant ideas and the voters who repeatedly rewarded them in 2015, 2016, and 2017 that set alarm bells ringing in Beijing. Because that link points directly to Beijing’s instinctive fear of popular elections.

To grant power to elected politicians, is to acknowledge popular sovereignty, and in Beijing’s eyes there can be no greater heresy. Sovereignty resides in Beijing … in the central government and the Chinese Communist Party as representative of all the people … not in any popular mandate bestowed by ordinary voters on elected politicians and their representative assemblies.

Hence Beijing’s decision to try and disqualify Hong Kong voters by overturning their choices and asking them to try again. If all goes according to current official plans, a total of 10 legislators elected in September 2016 will lose their seats. That will give Zhang Dejiang more than enough leeway to try and win those five extra votes he needs to pass Beijing’s August 31, 2014 electoral reform mandate.

The excuses whereby the 10 might lose their seats: oath-taking indiscretions plus disruptions during Occupy … with Hong Kong courts serving as the means of finessing this intricate maneuver. The implications are serious because they mean further erosion of Hong Kong’s political autonomy and judicial independence … despite all the incantations to the contrary.

OATH-TAKING AND DISQUALIFICATION

The oath-taking saga underscores the logic of this conclusion. Several Occupy generation candidates won seats in the September, 2016 Legislative Council election. So did some like-minded pre-Occupy democrats. A total of 15, by Beijing reckoning, used the occasion of their swearing-in on October 12 to demonstrate disloyalty by improvising their oaths (Nov. 14, 2016 post).

Beijing officials moved with more speed than usual in such matters and issued, on November 7, an Interpretation of the Basic Law’s Article 104.* This concerns the matter of oath-taking. Beijing’s interpretation was wide-ranging. It said the oath must be taken word for word, solemnly and sincerely, and followed up ever after by like-minded behavior under pain of mortal sin … meaning in this case disqualification as Legislative Councilors (Nov. 14, 2016 post).

The swearing-in ceremony itself had occurred on October 12. Two new legislators were especially offensive in their choice of words. But following customary procedures, the two were told they could retake their oaths, which they planned to do.

It was not to be. By the next council sitting on October 19, conservative forces had been mobilized. Their legislators left the chamber.  Without a quorum the session could not continue so the oaths could not be retaken     Hong Kong’s Chief Executive Leung Chun-ying meanwhile applied for a judicial review asking the Hong Kong court to decide if the two could be disqualified under Hong Kong law for the manner in which they had improvised their oaths.

A Hong Kong judge ruled their behavior warranted disqualification. But before he could issue his judgement, Beijing preempted the Hong Kong court by issuing a judgement of its own. This came in the form of an interpretation by the Standing Committee of the National People’s Congress (SCNPC) on November 7. *

Beijing thus added, via its interpretation, the new conditions that inspired official reconsideration, retroactively, of all that had been said by all legislators during the October 12 swearing-in ceremony. Eager to fulfill its duty, the Hong Kong government then asked the Hong Kong court for permission to disqualify four more new legislators (SCMP, Dec. 3). The request was for separate judicial rulings to be based retroactively on Beijing’s November 7 interpretation (Jan. 4, 2017 post).  These judgments have yet to be issued.

As for the first two legislators, they are currently awaiting their day before Hong Kong’s Court of Final Appeal. But that court only agreed to give them one last hearing on special public interest grounds. The two had already been told, on appeal, by a three-judge panel that their cases were without merit because the Hong Kong courts are powerless to defy a ruling from Beijing that comes down via the SCNPC. In fact, the appeal judges seemed quite irritated that the defense counsel should have presumed to suggest otherwise (Feb. 16, 2017 post).

Veteran democrat Martin Lee Chu-ming is now helping with the defense. But given the judgements to date, there seems little reason to think the four legislators will fare any better than the first two, or that the latter will receive an answer from the Court of Final Appeal any different from all those they have received so far.   The arguments from the three-judge appeal panel suggest that Hong Kong courts have no desire to assert any independence on this matter.

Not satisfied, however, the Hong Kong government is still searching for more offending post-Occupy legislators to disqualify and has just found a seventh. He is university lecturer Cheng Chung-tai who received his summons on April 10.

As a Beijing University graduate, Cheng is a rarity among Hong Kong legislators. Ironically, he is also among the most radical. Officials are constantly exhorting Hong Kong young people to visit their Motherland but in his case it didn’t have the hoped-for effect.

He took his oath on October 12, and may still have a case to answer on that score because of some extra words he added. But government lawyers have found additional grounds that seem more likely to produce the desired result.

At the subsequent council sitting on October 19, when the pro-establishment councilors vacated their seats to prevent a quorum, Cheng used the empty time to move about the chamber where he proceeded to dishonor the Chinese national and Hong Kong regional flags. This he did by turning upside down the miniature replicas that some pro-Beijing legislators had placed in holders on their desks to demonstrate their patriotism.

For this act of disrespect, Hong Kong’s Justice Department is asking the court to rule on whether Cheng has violated Hong Kong’s law against flag desecration. He was summoned by phone informing him of the pending prosecution but refused to turn himself in voluntarily.

That’s why he was visited by 14 Criminal Investigation Division officers who escorted him to Hong Kong’s central police station for a late night check-in where he was formally charged and released on bail. Under Hong Kong law, flag desecration is punishable by a fine and prison sentence of up to three years (Ming Pao, Ta Kung Pao, Wen Wei Po, SCMP, April 11, 2017).

Aside from his October 12 verbal indiscretion, Cheng Chung-tai is actually now in double jeopardy due to another aspect of the oath-taking saga. Under Hong Kong law, individual voters can challenge the qualifications of legislators representing their constituencies. In this case, one voter is asking for a judicial review based on Beijing’s November 7 oath-taking interpretation that the government is using to try and unseat the others.

This voter lives in the New Territories West constituency and is asking the court to disqualify two of its legislators. One is Cheng, the other is “King of Votes” Eddie Chu Hoi-dick who received more votes than any other candidate in the September 2016 election. He read out his oath properly, but used the occasion to shout out “democratic self-determination” and “tyranny must die” (SCMP, Ming Pao, Mar. 7, 2017).

Altogether eight Legislative Councilors elected in September 2016 are now in danger of disqualification over their oaths. The government has already budgeted HK$320 million to cover costs for the coming by-elections that will be called to fill the anticipated vacancies (SCMP, Ta Kung Pao, Mar. 31, 2017). The eight:

 

Sixtus Baggio LEUNG Chung-hang 【梁頌恆】, New Territories East

Yau Wai-ching 【游蕙 禎】, Kowloon West

LAU Siu-lai, 劉小麗】, Kowloon West

Nathan LAW Kwun-chung 【羅冠 聰】, Hong Kong Island

Edward YIU Chung-yim 【姚松炎】, Functional Constituency, architecture, surveying sector

“Long Hair“ LEUNG Kwok-hung 【梁國雄】, New Territories East

Cheng Chung-tai 【鄭松泰】,New Territories West

Eddie Chu Hoi-dick 【朱 , New Territories West

 

 ALLEGED CRIMES AND POSSIBLE PUNISHMENTS

 And there are more. Cheng Chung-tai is the only legislator who has actually been charged with an offense that carries a possible prison sentence. But two other legislators have just been charged with such offenses … stemming from actions two years ago during Occupy. Hence these two are also now at risk of losing their Legislative Council seats, making for a grand total of 10. The two latest possibilities:

 

Tanya Chan 【陳淑莊】, Hong Kong Island

Shiu Ka-chun 【邵家臻】, Functional Constituency, social welfare sector

 

 These two are part of the other official shoe to drop in the government’s slow-motion tidying-up exercise designed to do as much damage as possible to what Beijing calls Hong Kong’s new “separatist” tendencies.

The Occupy arrests were timed for obvious political effect coming as they did just one day after Hong Kong’s long post-Occupy 2015-17 election cycle finally came to an end. The Election Committee formalities whereby Carrie Lam secured her endorsement as Chief Executive were concluded on March 26. She was Beijing’s preferred candidate to replace the mush disliked loyalist Leung Chun-ying (Mar. 27 post).

The very next day, nine Occupy leaders and activists were formally charged. About a thousand people were arrested for various infractions during the 79-days of Occupy and some 200 of those cases have already proceeded through the courts. But the nine dramatically charged on March 27, were among the 30+ leaders and activists who were arrested at the end, either just before or just after the last of the barricades came down in December 2014.

These nine include the three original founders of Occupy Central: university academics Benny Tai Yiu-ting and Chan Kin-man, and Reverend Chu Yiu-ming. Besides the two legislators, the others are two former student leaders, and two politicians.

At the time of their arrest two years ago, they were all told to expect charges associated with unauthorized assemblies: participating in, organizing, inciting, and police obstruction. They were also told that formal charges would not be announced for at least three months (Apple, SCMP, Jan. 25, 2015; Standard, Dec. 4, 2014.).

Government prosecutors obviously needed more time, which they used to search the archives for other ordinances that might carry more weight than those the defendants had been led to expect.

The three co-founders are each being charged with three public nuisance offenses: conspiring to commit, inciting others to commit, and inciting others to incite others. Each charge carries a maximum penalty of seven years imprisonment.   The other seven defendants are being charged with one or two of the public nuisance incitement offenses (SCMP, Ming Pao, Ta Kung Pao, Mar. 28, 2017).

Nor is that all. Soon after Beijing issued its November 7 interpretation of Basic Law Article 104 on oath-taking, a political study session was held across the border in Shenzhen to help generate more publicity for all these unfamiliar mainland-style procedures (Nov. 14, 2016 post).  Among the speakers was retired Beijing official Chen Zuo’er 【陳佐洱】, a hardliner long associated with Beijing’s Hong Kong portfolio.

Chen used the occasion to blast Hong Kong’s judiciary for using the law as a political tool and also for the soft wrist-tapping sentences judges were handing out to political activists. He said there had been many such cases. They carried national security implications because they challenged Beijing’s authority. Yet Hong Kong’s judges seemed still not to have grasped that point (SCMP, Wen Wei Po, Apple, Nov. 10, 2016).

Perhaps now they have because sentences have grown noticeably stiffer since then. A few months before Chen’s tirade, the three student leaders who actually precipitated Occupy walked away with the mildest of sentences. The three were Joshua Wong, Nathan Law, and Alex Chow. They had led students in an attempt to storm a recently restricted public area at the Legislative Council complex on the night of September 26. All were convicted of unlawful assembly offenses. But the judge cited their youthful idealism in mitigation and let them off with community service and a suspended sentence (SCMP, Ming Pao, Aug. 16, 2016).

Now, in the wake of the oath-taking saga and all the tough official Beijing talk, Occupy leaders find themselves unexpectedly charged with offenses that carry seven-year prison terms.

Meanwhile, trials resulting from the February 2016 Lunar New Year violence are concluding. The violence was provoked by post-Occupy Hong Kong autonomy protesters … or separatists as Beijing calls them. It was only a one-night affair on February 8-9, with little property damage but there were many arrests and many police injuries (Feb. 19, 2016 post).

One rioter has just begun his nine-month sentence for throwing water bottles at the police and resisting arrest (SCMP, Wen Wei Po, Mar. 30, 2017). Three rioters including two university students have received three-year prison sentences (Apple, Ta Kung Pao, SCMP, March 18, 2017).

The harshest sentence so far has been given to a university computer technician found guilty of setting fire to a taxi. He has just been jailed for four years and nine months (Wen Wei Po, Ming Pao, SCMP, April 11, 2017). … All delivered with stern homilies from the bench and triumphant editorials in the pro-Beijing press.

 

*   http://www.chinadailyasia.com/chinafocus/2016-11/07/content_15522280.html

 

hkfocus2017@gmail.com

Posted by Suzanne Pepper on April 19, 2017.

  

Tags: , , , , , , , , , ,

DONE DEAL: Chief Executive Carrie Lam

This is the way they like it. Old loyalists said after Hong Kong’s 2014-15 election reform proposals were vetoed that if it was up to them, the proposals would never be resuscitated and reintroduced. They were supposed to fulfill Hong Kong’s Basic Law Article 45 mandate to introduce universal suffrage elections for the highest office in the Special Administrative Region. According to the timetable Beijing laid down in 2007, the new rules were to be in place by the 2017 election. Hong Kong’s new Chief Executive will serve for the coming five-year 2017-2022 term that will begin on July 1, which is coincidentally the 20th anniversary of Hong Kong’s 1997 return to Chinese rule.

One major problem with the government’s electoral reform bill was that it followed the specifications laid down by Beijing’s restrictive August 31, 2014 decision. According to that design, Beijing would vet the candidates under strict rules and nomination procedures, leaving the promise of Hong Kong’s long-sought one-person, one-vote universal suffrage election to become essentially a mainland-style rubber-stamp exercise.

Hence the 79-day Occupy resistance movement that began in September 2014. And hence pro-democracy legislators’ decision to veto the government’s proposed electoral reform bill when it came due for a vote in 2015. Which brings us to where we are now: the March 26, 2017 selection of a Chief Executive for the coming 2017-2022 term.

Reminiscing on these events, the pro-Beijing loyalist old-timers say it’s just what they always expected: real elections, the kind those fractious oppositionist elements are demanding, create nothing but trouble: social strife, polarization, and worst of all uncertainty … since no one can really be sure who will win. Beijing’s ways are best. The leaders decide and their chosen representatives endorse. Let those already occupying positions of authority make the decisions about who they want to succeed them.

So to make a long story short, the Chinese Communist Party’s top leaders decided unanimously at a Political Bureau Standing Committee meeting last December 25 that the person they wanted to become Hong Kong Chief Executive for the coming 2017-2022 term was the person who had held the position of Number Two in the Hong Kong government for the past 2012-2017 term. That person is Carrie Lam, a career civil servant who has served as efficient and loyal deputy to the current much-disliked Chief Executive Leung Chun-ying throughout his five years in office (Feb. 27 post).

Since the government’s draft universal suffrage bill was defeated, the only way to select a new leader was to fall back on the mechanism that has been used since 1997, namely, the multifaceted Election Committee. This now has 2,000 members whose origins in 4 “Functional Constituency” sectors and 38 subsectors are mandated by Hong Kong’s Basic Law (Annex I). That law was drafted to Beijing’s specifications in the 1980s, to serve as Hong Kong’s constitution for 50 years from 1997.

Reforming the Functional Constituencies, dubbed by critics as “small circles,” has been a subject of debate for years. Unfortunately for the critics, this unique design now seems firmly entrenched.   They have suggested many different ways of getting rid of them but to no avail since the beneficiaries, who regard themselves as Hong Kong’s post-1997 elite, find it a comfortable arrangement. So much so that they’ve begun to say Functional Constituencies are actually a form of universal suffrage and should therefore be made a permanent feature of Hong Kong’s Basic Law rule.

Their argument follows from its Articles 45 and 68 that promise eventual universal suffrage elections for both Hong Kong’s Chief Executive and the Legislative Council. But evidently the beneficiaries have won the day since both Beijing’s 2014 decision, and the Hong Kong government’s follow-up 2015 proposed legislation  left the Election Committee intact and unchanged and the possibility of future reform unmentioned.

Its small circles with all their Functional Constituency components are elected from among their own kind every five years. The Functional Constituency electorate numbers about 230,000 voters who elected the present committee last December (Dec. 14, 2016 post).

Its four sectors and 38 sub-sectors were designed so as to ensure that conservatives and pro-Beijing loyalists dominate. Pro-democracy partisans managed to win a record 325 seats among the 2,000 in last December’s electoral exercise. Actually, there are only 1,194 people on the committee due to six overlapping positions.

Michael Tien, for example, is both a Hong Kong Legislative Councilor and a member of Hong Kong’s delegation to the National People’s Congress since Beijing has established its usual organizational practice of overlapping memberships. Not all legislators are concurrently NPC delegates. But the communist party custom of linking representative bodies has been established in this way. Additionally, all members of both groups are concurrently ex officio members of Hong Kong’s Chief Executive Election Committee accounting for 106 of its total number.

The Election Committee routines may be totally arcane and outdated … but loyalists are now saying that’s what democracy partisans deserve because they had a chance for something else and rejected it. Of course, that option, which was mandated by Beijing’s August 31, 2014 decision on electoral reform and the follow-up proposed legislation, would have allowed the same arcane Election Committee to become the Nominating Committee, to be retained in perpetuity.   And fully half its members would have been needed to endorse each candidate with Beijing still having the final say. So the end result could not have been all that threatening. But in loyalist eyes, the old ways are best …   far less disruptive and with results foreordained.

ELECTION COMMITTEE CHOICES

The same 1,194 members nominate as well as elect. Aspiring candidates need only obtain the signatures of 150 Election Committee members to qualify. But to win, a candidate needs the votes of 601 Election Committee members.

Nomination Signatures (Feb. 14-Mar. 1):

Carrie Lam Cheng Yuet-ngo 【林鄭月娥】… 580

John Tsang Chun-wah 【曾俊華】… 165

Judge Woo Kwok-hing 【胡國興】… 180

Regina Ip Lau Suk-yee 【葉劉淑儀】… 20

 

Final Vote Counts (March 26):

Carrie Lam Cheng Yuet-ngo 【林鄭月娥】… 777

John Tsang Chun-wah 【曾俊華】… 365

Judge Woo Kwok-hing 【胡國興】… 21

 

The results were about what was expected as D-Day March 26 approached. But they belied the effort that went into the production and obscured how hard everyone thought they had to work just to achieve what had been anticipated from the start.

CAMPAIGNING FOR VICTORY: Beijing and Carrie Lam

Beijing’s direct intervention violated the spirit of Hong Kong’s Basic Law, Article 22 that forbids mainland interference. But for Beijing officials the perceived threat justified stepping out of line on the means used to preempt. In fact, Beijing threw caution to the winds in order not to risk an unintended consequence since even in Hong Kong’s unreformed system, an element of uncertainty crept in.

That element came in the form of candidate John Tsang and pan-democrats decision to adopt him as one of their own.  For that, of course, Beijing officials had no one but themselves to blame. Had they and Hong Kong’s loyalist camp not declared so openly for Carrie Lam, pan-democrats might not have been so quick to dub her a clone of the current Chief Executive.

But contemplating the sequence of events beforehand makes it easier to assess the bigger picture in terms of Beijing’s plans for dealing with what it calls the Hong Kong “opposition.”   Opponents are those who fall into the category of pan-democrats since by Beijing’s definition, they are still rejecting what officials expect from their injunction to “love the Motherland, love Hong Kong.”

This was one of Beijing’s key criteria for appointing whoever was elected on March 26, the key  criterion necessary to win Beijing’s trust.  But political love means different things to different people.  For now, Beijing is seeking those who love it on its own terms, which means unqualified acceptance of Beijing’s decisions, directives, demands, and interpretations of Hong Kong’s Basic Law constitution.

Beijing’s current thinking about how to cope with the  Hong Kong opposition can be deduced from Carrie Lam’s carefully drafted campaign manifesto, and from the March meetings of the National People’s Congress (NPC) in Beijing. This annual gathering includes both the members of China’s indirectly-elected NPC and the appointees who make up its honoary companion body, the Chinese People’s Political Consultative Conference (CPPCC).

The meetings became another venue for Beijing officials to perform in their new unfamiliar roles as Hong Kong election campaign lobbyists and promoters since many of the Hong Kong attendees would be voting as Election Committee members befoe the month was out..

Carrie Lam’s campaign moved lightly over the two most potentially disruptive items on Beijing’s to-do list for Hong Kong. These are electoral reform and national security legislation. The latter is mandated by Article 23 of the Basic Law. Loyalists regularly call for reintroduction of Article 23 legislation, shelved after massive protests in 2003.

By contrast with Carrie Lam, erstwhile candidate Regina Ip wanted both electoral reform and Article 23 put back on the agenda.*  Lam spoke instead of the need for a period of calm and consensus-building harmony in order to bring everyone together, heal rifts, prevent social disturbances, and so on.

Toward that end, she wants to focus on diversifying the economy, creating better opportunities for young people, and all kinds of livelihood issues … in the hope these will take everyone’s mind off divisive political questions, which she only alluded to but never addressed in any detail.*

Beijing officials are conveying the same message, albeit with a direct mainland-oriented theme. This continues to focus on economics and infrastructure projects, which they continue to promote as the favored means of harmonizing cross-border relations … without giving an inch on Beijing’s divisive political agenda with its implications for political integration.

During the Beijing NPC meetings, Premier Li Keqiang denounced Hong Kong’s new independence advocacy, albeit without acknowleding the reasons for its appearance (Wen Wei Po, Mar. 6).  Zhang Dejiang, who heads the central government’s Hong Kong coordination group, reminded Election Committee members among the attendees to be sure to vote for the candidate who enjoyed Beijing’s trust (Wen Wei Po, Mar. 5).

The high degree of political autonomy that Hong Kong is supposed to be enjoying did not feature anywhere in Beijing’s message.

All of these themes came together during a press conference hosted by the richest of Hong Kong’s tycoons, Li Ka-shing 【李嘉誠].  He and his two sons were presenting their annual report on the Li family’s myriad business enterprises.

By then all of Hong Kong’s biggest property developers, who naturally have seats on the Election Committee, had declared for Carrie Lam.  Meanwhile, “sources” had been reliably reporting that Zhang Dejiang, during his lobbying trip to Shenzhen in February (Feb. 27 post), had shared a meal with the three men. The sons ultimately revealed their intentions. But the 90-year-old patriarch held out.

At the press conference, still refusing to name Carrie Lam, he said only that his vote would go to someone like the mythical goddess Nu-wa, who could accomplish miraculous feats that ordinary mortals could not. According to legend, she repaired the pillars of heaven, broken during a fierce battle between earthly enemies, thereby saving all under heaven from impending chaos (all papers, March 23).

Li was initially rumored to have been leaning toward John Tsang.  The big business types are reputedly leery of Lam as a potential budget-buster intent on social spending to placate a public disgruntled on many matters besides politics. John Tsang as Financial Secretary was famous for maintaining budget surpluses that he refused to spend.

COUNTERPOINT: STRATEGIZING FOR DEFEAT

Pan-democrats agreed early on not to field a candidate because they concluded that both they and the public had learned all they could in years past from the otherwise futile experience. Democrats ran candidates in 2007 and 2012 just for the experience to be grained thereby.

Considering his conservative management of Hong Kong’s finances, John Tsang seemed unlikely to generate much enthusiasm from the 325 democrats who won seats on the Election Committee last December (Dec. 14 post).   Tsang seemed an even more unlikely prospect after he introduced his platform and began presenting himself to the public.*

He began by calling for resumption of the ill-fated 2014-15 electoral reform project based on Beijing’s restrictive design, without acknowledging why it had provoked the Occupy protest movement. He also said Hong Kong was duty bound to honor the Article 23 national security mandate, again without acknowledging  the fears the original effort had aroused in 2003. But that was at the start, before Beijing’s promotion of Carrie Lam began in earnest … and before pan-dems decided on the strategy of all-out support for Tsang as the “lesser of two evils.”

The third candidate, Judge Woo Kwok-king, initially seemed a more likely prospect. He had said his main objective was to try and prevent a second term for Leung Chun-ying.  After Leung stood down, Judge Woo seemed to lose his drive.  But he carried on with a platform that seemed to have possibilities.*  Woo projected the gradual evolution of Beijing’s restrictive August 31, 2014 electoral reform design forward to 2032, when most voters could be included as Nominating Committee electors and the Functional Constitutes would have somehow faded away.

He didn’t dwell on Article 23, focusing instead on Article 22. This he said should be reaffirmed in legislation to safeguard “one-country, two-systems.”   Specifically, Hong Kong should pass a local law to prohibit mainland meddling in Hong Kong’s political system.

Woo seemed the more compatible choice for the 300+ Election Committee democrats … until Beijing’s bandwagon began rolling with the specific purpose of cutting John Tsang out of the picture. According to all the unattributed “sources,” Beijing had sent out many signals in an effort to discourage him from contesting. These signals included even the threat not to appoint him should he actually be elected (Feb. 27 post).

All to no avail. Tsang persisted, modified his message on electoral reform and Article 23 somewhat, and pan-democrats identified with his defiance. Whatever negatives his candidacy contained, Tsang’s willingness to resist Beijing became his most commendable trait. The 300+ Election Committee democrats therefore decided initially to split their nomination votes since they had enough for two candidates. This they did, with the intention of deciding what to do on March 26 as campaign trends developed during the six weeks after nominations closed.

Professor Benny Tai’s civil referendum campaign was supposed to provide the guidance that would help democratic Election Committee members decide (Jan. 20 post).   The idea was to offer all Hong Kong residents a chance to state their preferences either online or at a few designated polling sites around town. Such exercises have been successfully conducted before, in coordination with the University of Hong Kong’s Public Opinion Program.

Prof. Tai and his Citizens United in Action group announced a target of one million voters. But this time he failed. Their website and apps were twice challenged for security lapses by Hong Kong’s zealous Privacy Commissioner. And one of the three in-person polling sites was disallowed at the last minute, presumably for political reasons.

Ultimately, only 65,000 (as initially announced) Hong Kongers participated … all with strong pro-democracy inclinations. For what it was worth: John Tsang was the overwhelming favorite. The final tally was 91.9% for Tsang; 27% for Judge Woo; and 1.59% for Lam.

The standard HKU POP rolling poll’s final entry registered: 56% for Tsang; 29% for Lam; and 9% for Woo. **

The failed online referendum also marked the end of “Long Hair” Leung Kwok-hung’s  “a plague on both your houses” plan. He had tied his candidacy to Benny Tai’s online exercise. But whether due to its difficulties, or lack of public interest, Leung didn’t collect enough nominations to make his effort seem worthwhile.  His aim had been to provide an alternative to both Lam and Tsang because Leung disliked the idea of pan-dems trying to play king-maker. He said none of the candidates were worthy because none had the courage to pursue a democratic agenda in the face of Beijing’s opposition (Jan. 20 post).

Nevertheless, the Election Committee’s March 26 vote reflected the will of Benny Tai’s online voters. Virtually all 300+ Election Committee democrats cast their ballots for John Tsang.

Yet they were no match for Beijing’s might. And after Li Ka-shing invoked the gods on Carrie Lam’s behalf, it was clear the game was over. Another interesting insight was provided soon after Li’s invocation, in a full-page article signed by a veteran Hong Kong loyalist and CPPCC member.  It was published in the currently pro-Beijing pro-Carrie Lam, Chinese-language SingTao Daily. The article was trying to explain why Beijing distrusted John Tsang, since that question had never been answered.

The reasons: his lack of a firm political stand, friendship with pan-democrats, failure to heed Beijing’s signals, and association with people who were in turn associated with foreign forces. It might have been convincing except that all the reasons seemed to date from the time after Tsang began making known his political ambitions (SingTao, Mar. 24).

Another full-page spread elsewhere gave his foreign-force connections a similar timeline. It seems an American company called APCO Worldwide has two American executives who have ties to American politicians, and two of this company’s Hong Kong consultants were members of John Tsang’s campaign team (Ta Kung Pao, Mar. 22).

All of which suggests that Beijing didn’t trust John Tsang not because it had any serious grievances against him … but simply because they had decided on Carrie Lam as the safest pair of Hong Kong hands to manage its Hong Kong agenda and his candidacy complicated the smooth roll-out of their plans.

 

*   PLATFORMS:

Carrie Lam: http://wpadmin2017.carrielam2017.hk/media/my/2017/01/Manifesto_e_v2.pdf

John Tsang:       https://www.johntsang2017.hk/en/platform.html

Judge Woo:   https://woo-kwok-hing.com/assets/docs/platform-eng_print.pdf

Regina Ip:   https://www.cpaglobal.com/the-ip-platform?ads_

 

Graphics explaining where candidates stood, on 10 different issues, from late February (they adjusted their positions somewhat as the campaign wore on):

http://www.scmp.com/print/news/hong-kong/politics/article/2074302/carrie-lam-should-keep-criticism-fellow-officials-behind

 

** POLLING:

https://www.hkupop.hku.hk/english/features/ceelection/2017/lc2017/index.html

Polling also in:  https://en.wikipedia.org/wiki/Hong_Kong_Chief_Executive_election,_2017

 

          

hkfocus2017@gmail.com

Posted by Suzanne Pepper on March 27, 2017.  Updated on March 29.

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CHIEF EXECUTIVE SELECTION: Beijing Decides, Hong Kong Approves

Actually, it was supposed to be the other way around.   At first glance and for some time after the Basic Law was unveiled, the general assumption was that Hong Kong would be selecting its Chief Executives and Beijing would give them an official stamp of approval. That’s what the Basic Law, Article 45 suggested. It says that Hong Kong’s Chief Executives “shall be selected by election or through consultations held locally and be appointed by the Central People’s Government.”

It was this same Article 45 that had inspired Hong Kong’s democracy movement for decades. Article 45 also says that the “ultimate aim is the selection of the Chief Executive by universal suffrage.”   So it seemed not unreasonable to assume that the choice would be Hong Kong’s to make, through ever more democratic means, and Beijing would go on approving the choice in some sort of formal way.

The first post-1997 Chief Executive, Tung Chee-hwa 【董建華】, was obviously a special case coming as his selection did in the midst of so historic a transfer from the British to Beijing. After a few years, however, Hong Kongers could see that the interim purpose-built Election Committee, tasked with doing the selecting until universal suffrage phased in, didn’t really make any such decision on its own.

But it was only after the August 31, 2014 political reform directive revealed Beijing’s vision for what sort of universal suffrage election Hong Kong was going to be allowed forever more that the point was finally driven home.

The old-fashioned purpose-built Election Committee was to become a permanent Nominating Committee, with Hong Kong voters rubber-stamping officially-approved candidates. Hence the June 2015 Legislative Council veto of Beijing’s reform design that was to have been in place by now, 2017. Since it’s not, the unreformed arrangement is being recycled to select a Chief Executive for the coming 2017-22 term. Selection Day is March 26.

The Election Committee itself was selected in its convoluted small-circle way last December (Dec. 14 post). Politicking began in earnest soon after.

Four hopefuls threw their hats in the ring or indicated they were thinking about it: a retired judge, Woo Kwok-hing 【胡國興】; Legislative Councilor Regina Ip Lau Shu-yee 【葉劉淑儀】 ; Hong Kong’s then Financial Secretary, John Tsang Chun-wah 【曾俊華】;   and Hong Kong’s then Chief Secretary, Carrie Lam Cheng Yuet-ngo 【林鄭月娥】.

Contenders must collect the nomination signatures of 150 Election Committee members in order to become formal candidates. To win, one of them must receive the votes of half the election committee, which is fixed at 601. There are officially 1,200 committee members but due to the inevitable overlapping positions, the committee actually has only 1,194 people.

The original four remain the leading contenders. Once their decisions to contest were final, both John Tsang and Carrie Lam resigned from their Hong Kong government positions.

Another candidate was “Long Hair” Leung Kwok-hung 【梁國雄】.  As usual he wanted to do it his way and decided to run via the online civil referendum route (Jan. 20 post).  Leung had set himself the goal of receiving its required 30,000+ online nominations before declaring himself a formal candidate. But technical difficulites temporarily shut down the site and he failed to achieve his target number of nominations by the deadline.   He has just withdrawn from the race.

OUT OF THE SHADOWS

Beijing’s direct intervention in this process is the second recent development that suggests official patience with Hong Kong is running thin. The first was the sobering November 7 interpretation of Basic Law Article 104 on oath-taking and the subsequent maneuvers to disqualify retroactively six newly-elected Legislative Councilors for having misspoken while taking their oaths on October 12 last year (Feb. 16 post).

Beijing officials have obviously decided they no longer need to keep up appearances about non-intervention in Hong Kong affairs. Past suspicions in this regard were typically met with bland denials. But at least pretensions were maintained … presumably in deference to the Basic Law which also addresses the matter of mainland interference.

Article 22 says that, “No department of the Central People’s Government … may interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this Law.”

As politicking has picked up ahead of Selection Day, however, Beijing officials have thrown caution to the winds. They‘ve gone so far as to remind Hong Kong that Beijing’s right to appoint is substantive and they now mean to exercise it without trying to pretend they’re not.

They’ve made their choice and it is career civil servant Carrie Lam Cheng Yuet-ngor. For the past five years she has served as Hong Kong’s Number Two or Chief Secretary for Administration, in the government of Chief Executive Leung Chun-ying 【梁振英】.

WHY NOW?  

The provocation for such forthright intervention seems to be not just Hong Kong’s new flirtation with independence that Beijing is determined to eradicate, but also the larger underlying climate of popular disaffection. Or more specifically, the scuttling of Beijing’s grand plan for introducing Hong Kong’s first universal suffrage Chief Executive election.

It was to have been Beijing’s anniversary gift, the fulfillment of Article 45’s long-delayed promise and a fitting climax to proclaim the success of Hong Kong’s first 20 years under Chinese rule.

Instead, dissenting Hong Kong mustered its forces and rejected the gift. It is said … by those who claim to be in the know … that Beijing officials remain adamant. If Hong Kong is ever to enjoy a universal suffrage election, it will only be in the form of the August 31, 2014 electoral reform design.

That or nothing, which would mean officials vetting the candidates and Hong Kongers legitimizing the results via one-person, one-vote universal suffrage elections. The 8.31 design would simulate mainland elections, widespread today at the local level, where voters rubber-stamp the candidates who are first approved by local communist party officials.

It would also mean one more step in Hong Kong’s cross-border assimilation. But with the 8.31 mandate, like Article 23 national security legislation , and the national education curriculum all languishing on the shelf, Beijing must have made the sudden decision to try and regain lost ground by sacrificing the much disliked Chief Executive, Leung Chun-ying.

All hints and suggestions had been that he was looking forward to a second term. Not long after his sudden announcement to the contrary last December, all signs suddenly shifted toward his second in command. Chief Secretary Carrie Lam.

WHY HER?

As Leung’s loyal deputy, she provided the hands-on driving force that guided the government’s electoral reform promotion campaign from the start of public consultations in late 2013, through the 2014 Occupy/Umbrella protest it provoked, and on to its defeat in June 2015. The government’s reform plan was drafted to Beijing’s 8.31 design specifications.

That she didn’t succeed in winning public approval for the plan seems to be less important than her resolve. She never betrayed the slightest reservation about the task she had been assigned, or an understanding of the reasons for its rejection.

Her campaign continued with its catchy “pocket it first” slogan   … without ever addressing the most basic question it raised. Pocket it first and then what?   What might Hong Kongers look forward to once they had accepted her offer based on the 8.31 design?

Only at the very end of the campaign, just ahead of the Legislative Council’s vote to veto, did a Beijing official speaking to legislators in Shenzhen acknowledge that there was nothing else to look forward to: 8.31 was Beijing answer to Article 45’s promise of universal suffrage elections for Hong Kong’s Chief Executive.

Still, after five years of Leung Chun-ying, officials must have calculated that she would be a calming influence: just as loyal but without his hardline pro-Beijing political persona. A devout Catholic, life-long civil servant, schooled in the old colonial and new mainland traditions of loyalty to the crown and obedience to Beijing, seemingly devoid of all political foresight, preferences, or pretensions … Beijing must feel she is their last best hope for reducing tensions and getting the job done as they proceed with all their cross-border interventions.

Most recently, she has been overseeing plans for the official gala 20th anniversary celebrations to culminate on July First. She’s also doing the same for Beijing’s latest effort to remind Hong Kong of its Chinese roots with a new specially-built HK$ 3.5 billion facility that will display exhibits on loan from the Palace Museum in Beijing. Two gigantic murals advertising the project in Hong Kong’s downtown central subway station are titled “In Touch with the Palace Museum.”

BEIJING’S CANDIDATE

Local Beijing-friendly opinion leaders are now out and about, explaining the surprise decision to relevant Election Committee sectors responsible for casting the March 26 vote. She is Beijing’s way of acknowledging local dissent, a kind of peace-making gesture that can be extended to unhappy Hong Kongers … without actually addressing the reasons for their discontent.

In any case, Beijing officialdom and Hong Kong loyalists are going all out to promote Carrie Lam. The decision to anoint her was made at a Political Bureau Standing Committee meeting in Beijing on December 25.  But the build-up headlines and full-page spreads in Hong Kong’s pro-Beijing press began as soon as she announced she was rethinking her decision not to become a candidate. And this she did within hours of CY Leung’s December 9 announcement that he would not seek a second term.

Still, the routines were initially standard. So were the initial complaints about Beijing’s Hong Kong Liaison Office moving into its familiar behind-the-scenes promoter’s role. At first it was just telephone calls, from Liaison Office personnel to Election Committee members, suggesting they vote for one candidate and not another (Ming Pao, Jan. 26).

Michael Tien 【田北屒】 from the pro-establishment New People’s Party complained about interference from an “invisible hand” or phone calls in favor of one candidate from a source he chose not to name. He said the Chief Executive selection race was being distorted, “pushed out of shape.” All standard polite euphemisms for the Liaison Office, putting its thumb on the scale … in this case to the disadvantage of his party’s candidate Regina Ip, although he didn’t actually say so (SCMP, Jan. 17).

But loyalists themselves soon dropped their pretenses. Why shouldn’t the Liaison Office lobby for candidates, asked pro-Beijing stalwart Elsie Leung 【梁愛詩】. Hong Kong has free speech. They’re exercising their rights just like everyone else.   Anyone can lobby, she said, as long as there‘s no coercion or advantages on offer (RTHK, Feb. 13; SCMP, Feb. 14).

Carrie Lam’s long years as a Hong Kong civil servant, learning to respond without answering, served her well in this case. She said she didn’t actually know if lobbying by Beijing is illegal. But she thinks the Basic Law’s Article 22 against mainland interference is more like a constitutional principle than a specific ordinance that’s meant to be obeyed (Ming Pao, SCMP, Feb. 11).

She has grasped the nature of the Basic Law perfectly. No wonder democracy activists have created so much trouble: they took the Basic Law literally. They thought it meant what it said. She knows better. It’s the spirit of the law that counts.

She also said she would not ask the Liaison Office to stop its lobbying on her behalf. If Election Committee members didn’t want phone calls from the Liaison Office they could tell the Liaison Office.

And why shouldn’t the Liaison Office campaign on her behalf when the third ranking official in the national party hierarchy flew all the way from Beijing to do just that? Zhang Dejiang 【張德江】 is also Chairman of the National People Congress and heads the party’s leading coordination group that oversees Hong Kong and Macau affairs.

In early February, he traveled to Hong Kong’s cross-border sister city, Shenzhen, where he met with key Election Committee members. These included Hong Kong business leaders and some of Hong Kong’s 36-member delegation to the National People’s Congress.

Zhang was accompanied during the February 5 and 6 meetings by Sun Chun-lan 【孫春蘭】who heads the Communist Party’s United Front Work Department. She is also deputy leader of the central coordination group for Hong Kong and Macau affairs.

Zhang’s message was that national leaders decided to back Carrie Lam for Chief Executive at their December 25 Politburo meeting.   The decision was unanimous and reports suggest he was trying to counter speculation about Beijing’s factional power-struggles carrying over to further complicate Hong Kong’s Chief Execution selection process (SingTao, Standard, Feb. 7; SCMP, Feb. 7, 9).

Rumors that Zhang Dejiang and Hong Kong Liaison Office director Zhang Xiaoming, stumping for Carrie Lam, are not on the same page as paramount leader Xi Jinping are, of course, firmly denied (Singtao, Feb. 22).

Lam’s strongest competitor is John Tsang and unconfirmed stories abound that Liaison Office personal have tried their best to persuade him to drop out of the race. He was even allegedly offered a plum banking post … all to no avail.  He refuses to acknowledge the stories saying different people say different things … all rumors and speculation (TVB Straight Talk, Feb. 14).

And then there is the widely circulated story that Beijing would not appoint him should he actually win the Election Committee vote on March 26. He says Beijing must trust him or they wouldn’t have allowed him to serve as Hong Kong’s Financial Secretary from 2007 until he resigned in January (SCMP, Feb. 17).

One of the Beijing officials who allegedly tried to persuade John Tsang, late last year, was Wang Guangya 【王光亞】, director of the central government’s Hong Kong and Macau Affairs Office in Beijing. In mid-February he followed on the heels of Zhang Dejiang and met with other Hong Kong leaders in Shenzhen.

Wang repeated the message about Carrie Lam being Beijing’s choice. He explained that of the several qualities Beijing wants to see in Hong Kong’s Chief Executives, trust is the most important. The person must enjoy Beijing’s trust.  According to one report, Wang told Election Committee members in Shenzhen that John Tsang is Beijing’s least favorite pick (Standard, Feb. 22, online).

Wang also said the Chief Executive election was part of the struggle over jurisdiction here. Beijing sees the Chief Executive election as part of its ongoing effort to safeguard its authority and sovereign right to rule (SCMP, Feb. 18).

And just in case anyone missed the point, Hong Kong’s first post-1997 Chief Executive, Tung Chee-hwa 【董建華】 repeated it. The occasion was a closed-door meeting on February 21, attended by advisors to his think-tank, Our Hong Kong Foundation. Some are Election Committee members.

Tung reportedly told the gathering that John Tsang could not compare with Carrie Lam in ability and suggested that Beijing might not appoint Tsang if he won the Election Committee vote.  Whether or not he actually said that Beijing would NOT appoint Tsang is the subject of much debate (Feb. 23:  SingTao, Standard, Ming Pao, Apple, Ta Kung Pao, HKEJ, SCMP).

Carrie Lam had said earlier that Tung Chee-hwa helped persuade her to join the race. She also said when explaining  her candidacy at a closed-door session of media executives on January 20,  that she had decided to run in order to prevent a “constitutional crisis” …  in case a candidate that Beijing could not accept won the Election Committee’s vote (SCMP, Standard, Jan. 23).

At the time her reference to a constitutional crisis sounded like the idle boast of a novice candidate (Apple, Jan. 22, 23).  But apparently this is the base line argument Beijing is using in favor of Lam against Tsang.

Why they don’t trust him and won’t appoint him even if he’s the victor on March 26 has yet to be revealed. Perhaps it’s just because she has been in a position to prove her loyalty many times over, whereas Tsang has yet to be tested in that particular aspect.  And Beijing isn’t in the mood for taking chances … given its perception of Hong Kong’s resistance to its plans for cross-border integration as a threat to the integrity of unitary one-party rule.

True to form, Carrie Lam for her part is still reflecting the spirit of non-intervention, even in the face of overwhelming evidence to the contrary. She insists this selection is open and fair. But unlike the non-intervention clause in the Basic Law, there are specific rules here that deal with electioneering and are supposed to be obeyed.

The Independent Commission Against Corruption recently issued a booklet to remind everyone involved in this election that offering an advantage to someone to stand for election or to stand down is an offense under Hong Kong law.  The law is the Elections (Corrupt and Illegal Conduct) Ordinance.*

There are also 30 lawyers representing the Election Committee’s legal sector. All are democrats. These hold a total of about 325 seats among the 1,194 Election Committee members and are strategizing in order to use their votes to best advantage. But however limited their political strength may be, the lawyers know how to make a point.

They have drafted a statement reminding all concerned that any attempt to exert pressure on Election Committee members to the harm or benefit of any candidate is not just deplorable. It may also amount to inciting the commission of a criminal offense under Hong Kong law. Besides, say the lawyers, it also betrays a callous disregard for the principle and practice of free and fair elections (SCMP, Feb. 24).

Curiously, and completely out of character, Hong Kong’s pro-Beijing newspapers did not cover the Shenzhen visits of Zhang Dejaing and Wang Guangya. Some loyalists also professed disbelief that Tung Chee-hwa would make any such threats about John Tsang not being appointed by Beijing even if he is elected on March 26.

Perhaps this reflects some residual deference to the principle of non-intervention after all … while Beijing struggles to avoid what is euphemistically referred to as the embarrassment of being presented with a candidate-elect that it has worked so hard to defeat.

*   http://www.icac.org.hk/filemanager/en/content_221/cee_ecsbooklet.pdf

https://www.elegislation.gov.hk/hk/cap554!en@2016-06-10T00:00:00?    _lang=en&p0=1&p1=1

 

hkfocus2017@gmial.com

Posted by Suzanne Pepper on February 27, 2017.

 

 

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BASIC LAW CONSTRAINTS

Everyone is always thinking in terms of Hong Kong’s struggle to maintain its identity and define an autonomous political future given the constaints of its Beijing-drafted Basic Law constitution.

But there is another way to consider those constraints, namely, from the perspective of the people who drafted them in the 1980s.  The exercise should be attempted … if for no other reason than to try and anticipate how long the current stalemate between Beijing and Hong Kong’s democracy movement can continue before Beijing’s official patience runs out.

Because if Beijing’s November 7 interpretation of the Basic Law’s Article 104 on oath-taking is any indication, that patience is now running thin.

Picking up where this exercise left off last year (Mar. 31, 2016 post), it’s almost possible to sympathize with the challenge Beijing created for itself when Basic Law drafters wrote so many promises into that document. The purpose then was to quiet nerves before Hong Kong’s 1997 return to Chinese rule.

Now, 20 years later, it must be a real strain for Beijing decision-makers to curb their instincts and try to remain within the confines of that same Basic Law since they’re accustomed to governing in a very different way.

China’s political system emerged unscathed from the traumas of the 1980s and 1990s. It didn’t go the way of European communism or even undergo significant moderation. Political change has yet to follow economics. That means the old-fashioned revolutionary communist conventions of unitary party rule remain firmly entrenched.

Yet decision-makers must now work across the 1997 divide to prescribe for a city where at least half the politically active population continues to resist such party-line mainland-style impositions.   It follows that whatever Beijing does produces some antithetical Hong Kong backlash.

Mainland-style “hard power” instincts have so far been kept in check … but they’re being absorbed by a Basic Law that seems open to ever more hardline mainland-style interpretations.

BASIC LAW STRESS TESTS

Consider past events. By all accounts, Beijing was taken off guard when half a million people marched in 2003 against the Hong Kong government’s attempt to do its Basic Law duty by passing national security legislation as mandated by Article 23.  A high-pitched public Basic Law study session followed in early 2004 with legal authorities arriving from Beijing to admonish Hong Kong on Basic Law principles.

Soon after the experts left town came a decision from Beijing aimed at tightening up on the Basic Law’s vague promises about universal suffrage elections. Beijing’s specific approval for all such reform designs was made mandatory in 2004. Not until 2007 did Beijing specify a timeline for universal suffrage reforms, and these were not to begin until 2017 despite the Basic Law’s vague opening for any time after 2007.

Buying time, presumably to allow for memories of 2003 to fade while Hong Kong became more familiar with Basic Law logic.

But memories did not fade, especially after the Hong Kong government tried to introduce a national patriotic political education curriculum for all students in 2012. Young people used the years to learn more about elections in general and mainland-style promises in particular.   Still, Beijing’s delaying tactics didn’t push the Basic Law’s promises and constraints too far out of shape.

Neither did the biggest upsurge of dissent since 2003. Hong Kong’s 2014 Occupy Central/Umbrella Movement became a 79-day blockade of the city’s major thoroughfares. Contrary to many predictions … inspired by memories of Beijing, Tiananmen Square, 1989 … the People’s Liberation Army garrison headquartered just adjacent to the main Hong Kong Island protest site was not called out. The protests’ momentum was allowed to wind down more or less on its own.

Consider also Beijing’s August 31, 2014 hardline decision on electoral reform that triggered the protest. Beijing refused to modify even a single clause of that decision. Yet Hong Kong’s legislative veto process was allowed to play out on its own.

But then consider the current oath-taking saga provoked by newly-elected Legislative Councilors who modified their oaths during the swearing-in ceremony on October 12. A total of 15 legislators-elect were actually at fault, according to the headcount by Beijing’s Hong Kong liaison office. They improvised the oath proportional to their degree of disaffection with the increasing mainland-style impositions and the disaffection now contains ideas about independence.

For Beijing, independence marks the red line that must not be crossed. The Basic Law has consequently been stretched to its limits … with Hong Kong’s independent judiciary declaring itself duty-bound to obey. Lost in the flurry of court judgements is any mention of the Basic Law’s promises and guarantees for Hong Kong’s autonomy.

OATH-TAKING ON APPEAL

Beijing’s response to the oath-taking affront was the tough fast-track November 7 interpretation elaborating on the Basic Law’s Article 104 (Nov. 30, 2016 post).    Unlike the original, the new version of Article 104 decrees the style and manner of oath-taking. No second chances allowed, with allegiance pledged not just to Hong Kong but to the national government. And any oath-taker who makes a false oath or who “after taking the oath, engages in conduct in breach of the oath” shall bear legal responsibility. *

This last is the most draconian aspect given how “legal responsibility” is being implemented. And the most significant aspect of implementation is the built-in retroactive principle, which only became fully apparent after disqualified legislators began appealing to the courts for redress.

Beijing’s aim according to the ongoing drumbeat in its media outlets here is to squelch all ideas about independence, self-determination, or any other “separatist” inclinations that have sprung up to resist Beijing’s impositions.

Hence the Hong Kong government is now seeking to disqualify and unseat four additional newly-elected legislators. As for the first two whose oaths were the most offensive, their appeals are all going against them.

The two are: Sixtus Baggio LEUNG Chung-hang 【梁頌恆】, elected from New Territories East, and Yau Wai-ching 【游蕙 禎】from Kowloon West. Both are members of the new post-Occupy political group Youngspiration 【青年新政】   (Nov. 3, 2016 post ).

The first judge to rule said the two had disqualified themselves by mangling their oaths and must vacate their Legislative Council seats forthwith (case: HCAL 185/2016).  But he made a point of noting that his decision would have been the same, based on Hong Kong law and precedent alone, even without Beijing’s interpretation that had been handed down a few days before (Nov. 30, 2016 post).

The Court of First Instance judgement was issued on November 15, Beijing’s interpretation on November 7.   Later court rulings took it from there.

A Court of Appeal ruling on November 30 (CACV 224/2016) upheld the November 15 judgement.  During oral arguments, one of the appeal judges admonished a defense lawyer for attempting an argument that presumed to suggest an alternative, calling it “arrogant and ignorant” (SCMP, Nov. 25).

But the most clear-cut putdown of the defense arguments came in the January 16 appeal court decision from the same three-judge panel that had ruled on Novebmer 30.**

They dispensed with a request for permission to move the Leung-Yau case on to Hong Kong’s court of last resort, that is, the Court of Final Appeal.

The judges gave no quarter.  They categorically rejected all arguments,  in effect removing the most basic safeguards the Basic Law has been thought to contain. Hong Kong judges accept Beijing’s authority even to the point of disregarding Hong Kong’s own common law tradition if Beijing so directs.

The three-judge panel concluded that despite the lawyers’ best efforts, their arguments had “failed to pass the threshold” meriting permission to proceed on to Hong Kong’s Court of Final Appeal.  In their January 16 written judgement, the panel explained why all the arguments were without merit.

All were essentially being argued on the basis of Hong Kong’s common law principles to which the mainland system does not adhere. Hence when Beijing issues an interpretation meant for implementation in Hong Kong, it must be implemented in Hong Kong according to the principles obtaining in the mainland system, not those of Hong Kong.

Dismissing the defense suggestion that Beijing’s November 7 interpretation was actually an amendment in substance masquerading as an interpretation because it added so many extras to the original Basic Law Article 104 on oath-taking, the judges ruled that Hong Kong as a region subject to the national constitution does not have the right to second-guess Beijing on what is an amendment and what is only an interpretation.  

Therefore all the procedural niceties spelled out in Hong Kong’s Basic Law Article 159 to safeguard the addition of amendments need not be applied to a formal interpretation by the Standing Committee of the National People’s Congress (NPC).

Under the mainland system, explained the panel trying to be helpful, the interpretation given by the Standing Committee in Beijing is actually a legislative interpretation. As such it can clarify but also legislate, that is, supplement laws following mainland legal practice. Hence the contention that Beijing’s November 7 interpretation reads like a supplement to the Basic Law’s Article 104 on oath-taking and not just an explanation, does not signify.

That also means the interpretation is retroactive in nature, following mainland practice. The interpretation must therefore be treated the same as if it had been written into the law originally. In other words, it is as if the November 7 interpretation has been the law since July 1, 1997 when the Basic Law came into effect. The interpretation “declared what the law has always been.”

Hong Kong’s common law principles mean laws are not applied retroactively to anything that occurred before the law went into effect.

Mainland civil law principles as applied by the party-led mainland government apply here as elsewhere in China if Beijing chooses to say so. This is regardless of the fact that Hong Kong courts otherwise, noted the panel, “apply the common law principles in interpreting the Basic Law”!

In response to the contention that Hong Kong courts have both the right and the duty to question any act by the NPC Standing Committee, the judges declared that “the courts in Hong Kong cannot question the authority of the NPC … to do any act which is in accordance with the provisions of the Basic Law and the procedure therein.”

All defense arguments were threfore deemed unarguable.  Without merit.  Permission to proceed denied.

It follows that Hong Kong’s independent judiciary cannot stand as a bulwark against mainland interference. The Basic Law means whatever Beijing says it means and Hong Kong courts, say Hong Kong’s judges, are bound to obey. Ultimately, there are no safeguards other than those Beijing allows.

Leung and Yau nevertheless have not quite reached the end of the line.  Despite the panel’s January 16 judgement against them, they can apply directly to the Court of Final Appeal for permission to argue their case again and are planning to try their luck one last time.

* http://www.chinadailyasia.com/chinafocus/2016-11/07/content_15522280.html

** http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=107632

 

UPDATE, March 17:  The Court of Final Appeal has agreed to hear the case.  The court date is August 25.

 

Posted by Suzanne Pepper on February 16, 2017

hkfocus 2017@gmail.com

 

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NEVER SAY DIE!

It’s just as well that democrats mustered some of their old fighting spirit for the New Year’s Day protest march because they’re going to need that and a lot more besides (Jan. 4 post).   The array of challenges calls to mind an old editorial line from long ago and far away: “there is chaos everywhere; the situation is excellent.”

In Hong Kong here and now, after the Occupy protest in 2014 and the electoral rewards of 2015-16, only gloom and doom lurks on the 2017 horizon. Pro-establishment adversaries are pushing back with a vengeance, Hong Kong’s patriotic vigilantes are on the rise again, book publishers are steering clear of all politically “sensitive” titles, and the oath-taking saga is taking a special toll.

Hong Kong judges are refusing to accept all arguments against Beijing’s November interpretation of Hong Kong Basic Law Article 104. Consequently, as many as six representatives elected last September are set to be disqualified and expelled from the Legislative Council if the government’s legal maneuvers succeed.

Looking ahead, because the drive for an elected Chief Executive has so far failed, democrats must prepare for another Chief Executive who will be of Beijing’s choosing selected in the old unreformed way.

But the campaign continues.   So do the ideals and so do the advocates, and the next sequence has already been set in motion. It will feature the ideal of civic nomination and the undefeatable Benny Tai.

CIVIC NOMINATION

At the heart of the whole controversy over political reform in 2014 and all that has followed since … from the Occupy protest movement, to new calls for independence, and on to the current oath-taking saga … was a simple popular demand. The controversy was about Hong Kong’s long-standing desire for universal suffrage … to elect its Chief Executive and Legislative Council … and Beijing’s long-standing promise to honor that demand.

Over the years as one thing led to another, Beijing decided that such a Chief Executive election must precede a universal suffrage legislative election. Otherwise the legislature would be seen to have more legitimacy than the executive, which would never do. Finally, Beijing set a target date to begin the sequence: 2017, for the 2017-2022 Chief Executive term, to precede the 2020-2024 Legislative Council term.

In all likelihood, those promises will never be realized … at least not in the way Hong Kong envisaged … or unless Beijing leaders experience an awakening of their own. This is because Beijing and Hong Kong are speaking two different …   Western and mainland … political languages when they talk about “universal suffrage.”

That was why pro-democracy legislators mustered their strength and used it to veto the only design Beijing would allow for what it called a universal suffrage election, scheduled to take place in March this year. Interested Hong Kong citizens had volunteered many ideas and designs during the open public consultation period set aside for the purpose in early 2014. But Beijing rejected them all.

The main reason for Beijing’s displeasure was that, in one form or another, most of Hong Kong’s ideas called for some sort of public participation in the nominating process.  Hong Kongers envisaged introductory nominating procedures as the first step in a two-part exercise that would culminate in a universal suffrage election. If the public can’t have a say in deciding who the candidates are, what’s the point in calling it a universal suffrage democratic election? Serving as rubber stamps for candidates chosen by others is not what voting should be about, and so on.

The public consultation proposals ranged all the way from direct American-style primary elections to the mildest possible form of public recommendation. Beijing had made it clear early on that its convoluted Functional Constituency-based Nominating Committee should continue to exist.  So the mildest public proposals bent over backward to accommodate … by suggesting that publically recommended candidates could, not must or even should, be considered by the committee. But still Beijing said no deal.

Beijing said no to everything but its own proposal mandated in the famous decision announced on August 31, 2014. There could be no civic nomination, nor any public approximation thereof. The Nominating Committee would nominate, Beijing would approve or not, and ordinary voters would have the option of approving or not.

What Beijing was mandating in that 8.31 decision was a mainland-style party-vetted election in perpetuity. Hence the September 2014 protests and the September 28 onset of the 79-day Occupy-Umbrella street blockades.

Later, just ahead of the final Hong Kong vote to veto Beijing’s design in June 2015, its officials finally admitted that 8.31 was what they meant and all they meant ever to allow in the name of universal suffrage Chief Executive election.

THE OFFICIAL GAME PLAN

So now the time has come to select a new Chief Executive for the 2017-2022 term and it will be done in the old way. The 1,200-member Nominating Committee has just had its mandate renewed via the old small-circle Functional Constituencies in a contest that was held last December 11.

The committee’s design, mandated by Beijing and written into Hong Kong’s Basic Law constitution, is such that pro-democracy partisans are competitive in only one of the four major Nominating Committee sectors. They did their best and emerged with between 325-7 seats depending on the calculation (Dec.14, 2016 post).

The final selection will be held on March 26. To win a candidate must secure at least 601 committee votes. Formal nomination entails the collection of 150 signatures from committee members. Democrats thus won enough representation on the committee to make their presence felt if they choose to exercise it and try to play the king-maker game.

But Beijing naturally had other ideas and was already arranging to secure its desired result.  The current hardline anti-democrat Chief Executive, Leung Chun-ying, suddenly announced on December 9 that he would not seek a second term after months of indicating that he would.

It should be assumed, although it has not been acknowledged, that Beijing helped him come to this decision. That would be in the interest of trying to cool political temperatures here while Beijing did its part by using the Basic Law and the Hong Kong courts to clamp down on “separatists.”

Within hours of Leung’s December announcement, his loyal deputy, Chief Secretary Carrie Lam Cheng Yuet-ngor stepped forward to say she was interested in succeeding him, after months of saying she wasn’t. She is a successful career civil servant dating back to colonial days and would be Hong Kong’s first female leader.

There were several trips back and forth to Beijing for both of them, ostensibly for other reasons, and so the succession for the 2017-2022 term has been arranged. When she made it official and announced her intentions a month later, the rush to receive her from the conservative powers that be left little doubt that she was intended as the chosen one.

Initially, conservative visitors would return from Beijing with word that officials there wanted the 2017 exercise to seem like a real competition. That word was brought back by Regina Ip Lau Suk-yee in support of her long-standing ambition. It had first been heard coming from her acolytes while she was leading the government’s campaign to push through the Article 23 national security legislation in 2003.

Retired judge Woo Kwok-hing had already declared himself a candidate and seemed a possibility with some liberal ideas.

And Financial Secretary, John Tsang Chun-wah, had spent the past several months trying to develop a “localist” image in pursuit of his evident interest in the job. His undeclared aim was apparently to tap into Hong Kong’s new post-Occupy concerns and stand as a contrast to the current occupant of Government House.

But once Carrie Lam had officially declared, loyalists rallied round. The pro-establishment and pro-Beijing press … South China Morning Post, Ming Pao, Hong Kong Economic Journal, Wen Wei Po, Ta Kung Pao, etc., etc. … played their part with full-page spreads on her past, present, and likely future.

Current Chief Executive Leung praised her effusively, but didn’t do the same for the others. Former Chief Executive Tung Chee-hwa gave her a bear hug in public, but not the others. And veteran loyalist Elsie Leung said four candidates were too many. Some should drop out.

John Tsang was reportedly encouraged in so many words to do so but finally made up his mind and yesterday announced his decision to contest. Phone calls were reportedly made. One went to Michael Tien, ally of Regina Ip who fought back tears over the slights she was suddenly receiving from the very people she had been cultivating to support her candidacy.

Pro-democracy partisans, for their part, had been upstaged and squeezed out entirely. Democratic committee members didn’t much like the look of any of these choices.

So much so that “Long Hair” Leung Kwok-hung said he was thinking about adding his name to the candidates’ list. His motive: to prevent committee members from trying to play king-maker when none of the likely candidates are worthy because none have the courage to pursue a democratic agenda in the face of Beijing’s opposition.

CIVIC NOMINATION BY ANY OTHER NAME …

So why not let the public have a say after all?   It’s to be called the Chief Executive Election Civil Referendum 2017 【2017 特首選舉民間全民投票】.

Announced last Sunday, January 15, the do-it-ourselves exercise is being organized by a coalition of groups called Citizens United in Action 【公民聯合行動】 Formed last year to promote strategic voting ahead of the September Legislative Council election, the leading spokesman is Professor Benny Tai Yiu-ting of Occupy fame.

It’s been done before, in 2012, when democrats even organized their own primary election with two candidates: the Democratic Party’s Albert Ho and Frederick Fung of the Alliance for Democracy and Public Livelihood. The idea then was the same as now: to give the public some experience and encourage public participation in electing the city’s leader. Only then they thought they were helping to prepare for the promised 2017 Chief Executive universal suffrage election. Now it’s just to try and preserve the memory.

In 2012, the democrats’ primary was followed by a referendum that included Albert Ho and the two official candidates: Leung Chun-ying and Henry Tang. Over 200,000 people participated either online or at street-corner collection boxes. Ironically, Leung was then popular enough to win the public’s endorsement, barely … although over half of those participating actually cast blank protest votes (March 29, 2012 post).

The online operation then was set up with the help of Robert Chung’s Public Opinion Program at the University of Hong Kong and he will be doing the honors again.

According to the details announced so far, the exercise is planned as a two-part affair. It will serve the functions first of a primary to nominate candidates, followed by a final round to designate the public’s preferred choice for Chief Executive.

Initially, anyone who meets certain basic eligibility requirements need only collect the signatures of 100 Hong Kong citizens over the age of 18. Applications must be submitted by the end of January to the HKU Public Opinion Program.

Once vetted for accuracy along with the 100 signatures, the hopefuls will be designated as participants in the civil referendum and qualified to enter the primary or nomination stage 【民間提名】.

All Hong Kong registered voters can designate their choices, via smartphone app or website between February 7-22. Anyone receiving 37,790 votes (which is 1 percent of all Hong Kong registered voters) will qualify as a bonafide referendum candidate.

The actual referendum 【民間投票】is scheduled for March 10-19. Official candidates, such as Carrie Lam and Regina Ip who have formally declared their candidacy will be included on the nomination list … evidently whether they like it or not.

Voters will not only be allowed to vote for a candidate but will also have the option of voting negatively, against a candidate, or submitting a blank ballot.   The winner, with the greatest number of net votes … positives minus negatives … will be announced on the evening of March 19, ahead of the “real” Election Committee selection on March 26.

Set-up costs will be standard for a HKU POP exercise, meaning over a million HK dollars, to be raised by crowd funding (Ming Pao, SCMP, Jan. 16).

THE MAN LEADING THE REFERENDUM CAMPAGIN

He’s also the man loyalists love to hate. They’ve thrown everything they can at him … tried every way possible to discredit him, his ideas, his colleagues, sources of funding, the University of Hong Kong law school, its dean, HKU’s promotion and disciplinary procedures … all to no avail.

Ever the happy civil disobedience warrior, Benny Tai soldiers on and is now back in the spotlight as lead spokesman for the latest mock election venture.  He also likes to introduce his bright ideas just ahead of the Lunar New Year holiday,  when people have some extra time to socialize and make plans for the year ahead.

After recovering from the initial shock of watching his carefully crafted Occupy idea explode into a mass movement on September 28, 2014, he has learned to joke about the way his ideas always seem to turn out differently than he expected.

He had worked at organizing Occupy for the better part of two years beginning in early 2013.  It was supposed to be a peaceful three-day event confined to the downtown business district.  His people and the police even staged a rehersal event in July 2014 to show just how well prepared they all were.

Then there was his 2016 ThunderGo plan. It was supposed to teach candidates and voters the value of strategic voting ahead of last September’s Legislative Council election. It did. But no one paid much attention until the very end when he became king-maker for a day with his smartphone signals based on final polling.

These were evidently what was responsible for the last-minute swing on Election Day toward some of the younger candidates … the swing that also cost a few veteran democrats their seats  (Sept. 8, 2016 post).

He said he felt sorry for their loss and pro-Beijing partisans fumed. What he did is no different than playing the exit polls, they said … a forbidden practice here that loyalists have long been accused of perfecting. They nevertheless demanded that election authorities exercise strict vigilance (China Daily, Dec. 30, 2016).

He then helped coordinate candidates and mobilize voters for the Chief Executive Election Committee election last month and was himself elected to fill a committee seat (Dec. 14 post).

Meanwhile, the oath-taking saga had developed leading to the disqualification of now former legislators-elect Baggio Leung and Yau Wai-ching.  Benny Tai joined the defense effort especially for the four additional Legislative Councilors the government also hopes to disqualify. He and they featured in this year’s New Year’s Day protest march (Jan. 4 post).

He’s now among those calling on the government to withdraw its judicial review cases against the four. He is also suggesting that the Chief Executive candidates’ willingness to drop the four cases should be a consideration for democratic election committee members before they cast their votes on March 26.

Predictably, loyalists are up in arms again. They’ve launched a campaign of their own to try and have him disqualified as an Election Committee member. They say he is “perverting the course of justice.”

In any event, whether or not that formal charge sticks, they say he is compromising the integrity of the courts and of the election process by calling on candidates to declare … in advance of the election and before the court has had a chance to rule … their willingness to drop judicial review cases on so serious a matter as oaths taken imprecisely (Wen Wei Po, Dec. 20, 2016, SCMP, Dec. 22, China Daily, Jan. 3).

It follows that he himself should not be allowed to cast his vote for any Chief Executive candidate  …   especially after launching his new plan for a referendum that will “deceive” the public and “wreck the Chief Executive election” (Ta Kung Pao, Jan. 16).

But loyalists also know that Benny Tai is a law professor and understands how to evade capture. He has eluded their grasp many times before and probably their latest attempt will be no more successful than any of the others.

 

hkfocus2017@gmail.com

 

Posted by Suzanne Pepper on January 20, 2017.

 

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2017: OFF TO ANOTHER FIGHTING START

No need to debate the pros and cons of holding a New Year’s Day march this year. The Yuan Dan 【元旦】… Day One of the New Year … march is an on-again off-again tradition, depending on the mood of day and issues at hand. In 2015 there was no march because everyone was still recuperating from the just-ended 79-day Occupy street blockades. The February First substitute was a low-keyed affair, as though everyone was still resting up.

Last year a few energetic souls came out on their own. But no sooner had the traditional Civil Human Rights Front organizer decided against a 2016 New Year march than Causeway Bay Books manager Lee Bo mysteriously “disappeared” into a van near his warehouse office, sparking a spontaneous protest days later (Jan. 7, 2016 post).

It was just the beginning of his cross-border brush with mainland law enforcers bent on rolling up Causeway Bay Books’ cross-border sale of political publications banned in China but not in Hong Kong. Lee’s experience and that of his colleagues, five in all, would add another dark dimension to Hong Kong’s mood in 2016.*

There are now several others. During 2016 the Beijing-Hong Kong disconnect intensified, making the need to march an urgent necessity. There were several steps along the way: from Occupy in 2014, to the 2015 District Councils election, the 2015-16 case of the disappearing booksellers, the 2015-16 splash made by the futuristic political docu-drama Ten Years, the February 2016 Mong Kok riot, the February 2016 New Territories East by-election, and on to the September Legislative Council election, and the oath-taking saga that has already seen the disqualification of two new legislators and is ongoing. Each step has strengthened Hong Kong’s growing climate of dissent, pushing back against Beijing’s growing intrusions into local political life.

Consequently, the January First march was billed as a fund-raiser to help cover the legal costs of four more recently-elected legislators. The aim is to try and block what has become an official attempt to use Beijing’s new loyalty-oath criteria to nullify the effects of Hong Kong’s September 4 Legislative Council election (Sept. 8, 2016 post).

Reinforcing tensions throughout has been the new conclusion that grew out of the Occupy consciousness-raising experience … when protesters camped out on the streets for 79 days debating the state of the world and Hong Kong’s fate. The ultimate conclusion was that Beijing has no intention of ever allowing the kind of political autonomy Hong Kong thought it had been promised by all the assurances and documents that accompanied the transfer of sovereignty from London to Beijing in 1997.

Whether Beijing officials subsequently changed their minds or have simply been speaking a different political language all along is open to debate. The latter seems more likely.  But the more urgent question now is how best to confront present realities.

Activists have begun exploring a variety of potential solutions. But the idea that has sounded the loudest alarm in Beijing is “independence” and Beijing has chosen to tar all the new post-Occupy solutions by whatever name  …  whether localism, separatism, self-determination, or independence … with the same brush.

To their credit, those officials have chosen to handle what they see as this most grievous of challenges to Beijing’s jealously-guarded sovereign right to rule, not by calling out the tanks, but by trying to turn Hong Kong’s Basic Law constitution to the same purpose, namely, to kill those ideas.

In the process, of course, they’re not just striking a blow at what Beijing regards as subversive ideas.   Collateral damage includes the principle of free elections, plus Hong Kong’s own most jealously-guarded source of protection, namely, its judicial independence.

OATH-TAKING: THE NEW WAY TO OVERTURN AN ELECTION RESULT

In the United States, attempts to overturn election results turn on vote recounts and so-called “faithless” electors meaning members of the old Electoral College who can but usually don’t defy the results of the popular vote in their respective States.  In Hong Kong judicial reviews are the course of last resort when all else fails。

Beijing’s loyalist allies tried but failed to block the new post-Occupy ideas during last September’s Legislative Council election.

So Beijing is now trying to do the next best thing: attempting to nullify the results of that election by disqualifying newly-elected legislators on the basis of loyalty oath criteria.

A few candidates had already been barred from contesting the election on the same grounds via a new confirmation oath (July 22, 2016 post).

The next more dramatic opportunity arose during the October 12 swearing-in ceremony when two of the most radical new legislators chose to reword their oaths in a deliberately insulting manner. Asked to repeat then and there by the presiding officer, they did, in the same manner.

The two are Sixtus Baggio LEUNG Chung-hang 【梁頌恆】, elected from New Territories East, and Yau Wai-ching 【游蕙 禎】from Kowloon West. Both are members of the new post-Occupy political group Youngspiration 【青年新政】 (Nov. 3 post).

Beijing’s political wrath has thus been brought down on everyone head. The Hong Kong government, ever eager to please, asked for a judicial review to determine whether the two should be allowed to re-take their oaths again. This the Legislative Council’s presiding officer had agreed to let them do following curstomary discretionary procedures.  But pro-establishment legislators, who are in the majority, walked out of the chamber making the necessary quorum impossible to muster for a repeat oath-taking by the two.

On November 15, the results of the judicial review were announced.  The Hong Kong judge ruled that the two must be disqualified for their failure to take the oath properly. Nor should they be allowed to retake the oaths as had initially been promised by the Legislative Council’s president (case:  HCAL 185/2016).

Judge Thomas Au said he made his decision on the basis of Hong Kong law and precedent alone, but it’s tempting to contemplate the consequences had he ruled otherwise. Because his Nov. 15 judgement had been preempted by a November 7 ultimatum from Beijing.

Another Hong Kong judge, Andrew Cheung, subsequently reminded everyone, in a November 30 appeal court ruling, that Hong Kong courts are bound to respect such judgements from on high (case:  CACV 224/2016).

Judge Cheung was referring to the fast-track interpretation of Hong Kong’s Basic Law Article 104 on oath-taking issued by Beijing on November 7. **   This made matters much worse. It proclaimed new requirements for solemnity, sincerity, and loyalty not just to Hong Kong but explicitly to Beijing, the People’s Republic.

All this the Hong Kong appeals court then reaffirmed in the November 30 judgement. It also helped  Beijing out by ruling further that unlike Hong Kong’s common law conventions, Beijing’s interpretation should be implemented here according to Beijing legal custom, which mandates retroactive enforcement.

That signaled the green light for more to come.  The Hong Kong government, led by outgoing Chief Executive Leung Chun-ying, went back to its judges in search of a ruling that will punish four more newly-elected legislators. The Hong Kong court is being asked whether they should be disqualified due to their loyalty oaths, which did not meet the new standard Beijing laid down after they took them.

The oaths of all four were initially accepted by the presiding officer, with two being permitted to retake. All four are currently sitting as duly-elected and sworn-in Legislative Councilors.

The government’s challenge is taking place in the form of judicial reviews … which mean the legislators need to defend themselves in court. There will be court costs and if they want professional representation they need to hire lawyers, not all of whom will likely be willing to work pro bono … all of which means something to the tune of HK$5 million. The government has unlimited resources. These legislators don’t. Hong Kong’s judicial independence comes with a hefty price tag.

THE FOUR

Hence the necessity of this year’s New Year’s Day march. It was a fund-raiser for the four newly-threatened legislators. The original two, who are now disqualified, are taking their case on to Hong Kong’s highest Court of Final Appeal. Fund-raising for them is separate. Sympathetic legal advisors, more concerned about the precedents being set that threaten Hong Kong’s judicial independence than the fate of the two legislators, are hoping to muster stronger arguments than were used in the two previous attempts at defense.

The four legislators: LAU Siu-lai, 劉小麗】, teacher, street-market campaigner, and democracy activist from Kowloon West; Nathan LAW Kwun-chung 【羅冠 聰】, student activist, from Joshua Wong’s Demosisto party, representing Hong Kong Island; Edward YIU Chung-yim 【姚松炎】, a Functional Constituency legislator; and surprisingly, an old-timer who has disrupted many a solemn ceremony in his day, “Long Hair“ LEUNG Kwok-hung 【梁國雄】 from New Territories East.

The government is basing its challenge on Beijing’s November 7 interpretation, which goes well-beyond the original bare-bones Basic Law Article 104 requirements for oath-taking. In the newly interpreted version, legislators and all leading officials must not only pledge allegiance to Hong Kong but also to the People’s Republic. They must also do so “sincerely, solemnly, accurately, and completely.” And there can be no re-do, no second chance.

What’s more, “the oath-taker must sincerely believe in and strictly abide by “ the oath. “An oath-taker who makes a false oath, or, who after taking the oath, engages in conduct in breach of the oath, shall bear legal responsibility in accordance with law.”

Actually, by these new standards, the government should be seeking to disqualify many more than just four. The unexplained selective choice of these four to the exclusion of others, suggests that politics is playing as much a role as the new loyalty oath criteria.

SELECTIVE PUNISHMENT

Nathan Law is accused of a voice inflection. He raised his voice as if asking a question when he repeated the words “People’s Republic of China.” Teacher Lau read out her oath in slow motion. She later posted a note on her Facebook page saying she had done so to make the oath as meaningless as possible.

Functional Constituency legislator, Edward Yiu, represents Chief Executive Leung Chun-ying’s architectural, surveying, and landscaping sector and is its first pro-democracy representative. While taking his oath, Yiu interjected that he was also declaring for procedural justice and genuine universal suffrage.

Most curious of all, however, is the case of “Long Hair“ Leung Kwok-hung. His oath-taking performances date back to 2004 when he was first elected to the Legislative Council. His January First marching day flier proudly advertised these performances beginning with the story of his attempt to compose his own oath in 2004 (Nov. 30, 2016 post).

He himself had applied for a judicial review in order to clarify his rights after the Legislative Council’s clerk rejected a draft of the version he wanted to take. Judge Hartman did the same. He ruled that Leung must conform to Legislative Council procedures or lose his seat (case: HCAL 112/2004).

Ironically, it was this 2004 precedent ruling on Long Hair’s question that Judge Au cited in his November 7 decision disqualifying Baggio Leung and Yau Wai-ching for their creativity.

As for Long Hair in 2004, he took his oath as required but used the opportunity to shout out his favorite slogans before and after. He also wore one of his favorite T-shirts … emblazoned with a slogan calling on Beijing to reverse its verdict on the 1989 occupation of Tiananmen Square【平反六四】. That verdict and the counter-revolutionary label that came with it was used to justify the June Fourth crackdown and the slogan has been a staple of rallies ever since.

In 2008, he again wore the T-shirt and shouted out slogans before and after his oath-taking. In 2012, he repeated his performance adding slogans about universal suffrage and universal retirement protection. But last year, 2016, his T-shirt bore the words “civil disobedience 【公民抗命】 and Leung shouted out for democratic self-determination 【人民民主 自決】. He also opened a Yellow Umbrella, symbol of the 2014 Occupy protest, while reciting the oath.

Conspicuous by his absence among the accused is “King of Votes” Eddie Chu, rural campaigner from New Territories West. His oath-taking extras must have been at least as offensive to Beijing ears as anything uttered by the four legislators. Eddie Chu took the standard oath. But afterward, he used the occasion to proclaim: “Democratic Self-determination. Tyranny must perish!”

Perhaps his “King of Votes” title won for receiving more than anyone else, plus the case of rural influence-peddling he publicized, protected him, for now, from the government’s attempt to disqualify the new post-Occupy breed of activists.

JANUARY FIRST DEFIANCE: Marching for Self-Determination

Beijing’s tough love for its Hong Kong compatriots may succeed in discouraging demands, such as they are, for independence. But if so, there is as yet no sign of acceptance for Beijing’s rules and definitions. Beijing and loyalist commentators never cease repeating that independence and self-determination are one and the same. Even Hong Kong’s former governor and champion of democracy, Chris Patten, agrees with them (Nov. 30 post).

Undeterred, the lead slogan selected for last Sunday’s march proclaimed: “Sovereignty to the People” 【主權在民】.  There were plenty of self-determination 【自主】 slogans as well. But nothing about independence.  Hong Kong is trying to draw a distinction but Beijing is so far not of a mind to listen.

The additional marching demands: to the Hong Kong government, “Cancel the Four Judicial Reviews.” And to Beijing, “Oppose the Interpretation of Basic Law Article 104, Allow Genuine Universal Suffrage Elections.”

The demands were repeated on the most widely carried marching placards, contributed by the Democratic Party:  “Oppose Interpretation, Withdraw Judicial Reviews, Defend Democratic Elections.”

Turnout was not what the organizers had hoped, however.  Just over 9,000 by their own count.  The police as usual cut the number down by half.  Perhaps people were tired of marching for the same cause.

Several thousand had come out for an impromptu Sunday afternoon march on October 30.  At least 10,000 came out a week later, November 6.  That was a day ahead of Beijing’s interpretation announcement, and an estimated four thousand of those marched on to protest at Beijing’s liaison office that evening.  The largest demonstration ever of lawyers here took place on the evening of November 8 when two thousand staged one of only three silent protest processions they’ve held since 1997.

But New Year’s Day was first and foremost a fund-raiser and the proceeds were good. Donation boxes set up all along the route from Victoria Park to downtown Central, collected HK$1.42 million. Total in the new Justice Defense Fund is now HK$1.83 million. Not bad, but not good enough and still well short of the $5 million target needed to match the government’s unlimited resources.

Enthusiasm was nevertheless high, especially at the main platform set up outside the Wanchai subway station. Manning this collection point on their old perch were the three original Occupy Central organizers: Professors Benny Tai and Chan Kin-man, with Reverend Chu Yiu-ming, back together again for this new cause.

They’re managing the Justice Defense Fund along with veteran candidate coordinator and universal suffrage alliance builder, Prof. Joseph Cheng.  He counsels “tolerance and patience” whenever someone in an audience uses unprintable language while asking a question about the Younspiration duo who launched the oath-taking saga on October 12.

Tai, Chan, and Chu were the center of attention: revived, slimmed down, energetic, and evidently fighting fit for this next round in their long-running struggle. But the biggest surprise was Reverend Chu whose days on the front line extend all the way back to 1989.

Two years ago after the Occupy barricades were finally  cleared, Chu said he was tired and unwell, and Occupy had been the last campaign for an old soldier. He wanted nothing more than to live peacefully in quiet retreat. That was then. Two years later, he’s back. It’s not over yet … and obviously neither are any of them.

 

* For a lengthy summary of what is known about the booksellers’ case: South China Morning Post, Dec. 30, 2016: http://www.scmp.com/news/hong-kong/politics/article/2058000/one-year-hong-kong-bookseller-saga-leaves-too-many-questions

**     http://www.chinadailyasia.com/chinafocus/2016-11/07/content_15522280.html

 

 hkfocus2017@gmail.com

Posted by Suzanne Pepper on January 4, 2017.

 

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AN ELECTION WITHOUT A CAUSE: CY Leung Stands Down

Last month people were saying the oath-taking saga and Beijing’s intervention marked the beginning of the end of judicial independence and of Hong Kong as we know it (Nov. 30 post).   Maybe that prediction was a little premature. Because this month, out of the blue, there came a sign that maybe Beijing is beginning to get the point after all.

The sign came in the form of a surprise announcement by Hong Kong’s Chief Executive, Leung Chun-ying. Despite all indications to the contrary, he has decided not to seek a second term, due to begin next year. He cited family reasons. But if Beijing really wanted him to remain in office for another five years, from 2017 to 2020, it’s safe to assume those reasons would not have loomed so large.

Leung is the third and most divisive individual to occupy the post since Hong Kong returned to Chinese rule in 1997. All have been vetted and approved by Beijing before being endorsed by Hong Kong’s conservative Beijing-designed Election Committee. And all sooner-or-later provoked the same resistance while trying to implement Beijing’s plans for Hong Kong that have produced the current level of popular defiance here.

Among other things, that resistance has succeeded in delegitimizing all three men in a sequence that even Beijing must realize should not be allowed to continue indefinitely.

The first post-1997 Chief Executive, Tung Chee-hwa, was ultimately obliged to resign mid-way through his second term in office, ostensibly for health reasons … none of which seem to have materialized. His term was marked most dramatically by the big half-million-person protest march on July 1, 2003. The issue then was his administration’s campaign, led by the then Secretary for Security, Regina Ip, to push through the national political security legislation mandated by Article 23 of Hong Kong’s Basic Law constitution.

Chief Executive number two was Donald Tsang Yam-kuen who is currently awaiting trial for misconduct and accepting an advantage, the details of which were ferreted out and publicized by a critical press.

And now there is Leung Chung-ying whose consistent refusal to acknowledge the democracy movement’s concerns has had critics calling for his downfall from the day he was formally selected in March 2012.   But by resigning when he did, Leung gave his critics one last keepsake to remember him by.

Leung announced his decision to stand down at a hastily-called press conference on Friday afternoon, December 9 … just two days ahead of the December 11 Chief Executive Election Committee election. This is the exercise that elects the electors who endorse Hong Kong’s Chief Executives.

He of course knew full well that democracy campaigners had made ABC (Anyone But CY) their chief slogan for the Election Committee election. They were using it to try and maximize support for like-minded Election Committee candidates from like-minded voters.

Democrats might have been responsible for finally pushing him from office. But in an instant, the timing of his announcement managed to deprive them of their main rallying cry and thus undercut the bargaining chips they hoped to secure for their minority position on a committee that is by design stacked against them.

Celebrate tonight, they said last Friday afternoon. We won’t have CY to kick around anymore. But double down again tomorrow because someone just as hardline will likely replace him.

ELECTION COMMITTEE BASICS

The committee sits astride a convoluted arrangement that is based on the occupation-based Functional Consistency categories.  Their logic is probably fully grasped only by the returning officers who are tasked with managing the whole set-up. But the design was intended to guarantee safe pro-establishment majorities for any decision it is authorized to make and it has so far never failed to perform as intended.

Besides electing the Chief Executive Election Committee, the Functional Constituencies also elect about half of Hong Kong’s 70-seat Legislative Council.

The Election Committee has four sectors divided into 38 sub-sectors. The four main sectors that are not always identified in graphic presentations are: Sector One, business and finance; Sector Two, professions; Sector Three, labor, culture, and society; Political, political bodies both local and national.  The 38 Election Committee sub-sectors (with number of seats in parentheses):

 

1. Heung Yee Kuk (26) 20. Finance (18)
2. Agriculture and Fisheries (60) 21. Financial Services (18)
3. Insurance (18) 22. Sports, Performing Arts, Culture and Publication (60)
4. Transport (18) 23. Import and Export (18)
5. Education (30) 24. Textiles and Garment (18)
6. Legal (30) 25. Wholesale and Retail (18)
7. Accountancy (30) 26. Information Technology (30)
8. Medical (30) 27. Higher Education (30)
9. Health Services (30) 28. Hotel (17)
10. Engineering (30) 29. Catering (17)
11. Architectural, Surveying and Planning (30) 30. Chinese Medicine (30)
12. Labour (60) 31. Chinese People’s Political Consultative Conference (51)
13. Social Welfare (60) 32. Employers’ Federation of HK (16)
14. Real Estate and Construction (18) 33. HK and Kowloon District Councils (57)
15. Tourism (18) 34. New Territories District Councils (60)
16. Commercial (First) (18) 35. HK Chinese Enterprises Association (16)
17. Commercial (Second) (18) 36. National People’s Congress (36)
18. Industrial (First) (18) 37. Legislative Council (70)
19. Industrial (Second) (18) 38. Religious (60)

 

This committee figured in the opposition to Beijing’s August 31, 2014 political reform directive that was mandated as Beijing’s answer to democrats’ long-standing demand for universal suffrage elections. Beijing’s directive would have transformed this same Election Committee, unreformed, into a Nominating Committee, tasked with endorsing Beijing-vetted candidates ahead of the long-promised one-person, one-vote universal suffrage election for Chief Executive. This is the proposal that sparked the Occupy protest movement in 2014 and that pro-democracy legislators joined in vetoing last year.

The Election Committee thus remains in place to perform its duties as before. This will entail nominating approved candidates, which require the signatures of 150 Election Committee members per candidate. And finally selection. The votes of half the Committee’s members, 601, are the minimum required to produce a new Chief Executive. This exercise will take place next March. The 2017-2020 term begins on July First.

POLITICKING FOR SMALL-CIRCLE ADVANTAGE

 Back at the beginning, just after 1997 when democracy campaigners were still called liberals, they initially boycotted everything to do with this committee … dismissing it as a small-circle substitute for what real universal suffrage elections should be. By 2006, with that end still not in sight, campaigners decided to participate in order at least to make their voices heard in these inhospitable sectors.

In 2006, the Election Committee still had only 800 members. But despite their best efforts, democrats were able to win just 114 seats (or 134 counting some extra uncontested seats).

It was enough to nominate one of their own to stand as a Chief Executive candidate although he had no chance of winning. The candidate was Alan Leong Kah-kit of the new Civic Party. When final votes were tallied for the Chief Executive prize a few months later, Leong received only 123 votes to Donald Tsang’s 649.

By the next 2012-2016 term, the Election Committee had been enlarged to 1,200 seats. Democrats succeeded in winning only 173 of these, plus some extra uncontesteds. Enough to nominate candidate Albert Ho Chun-yan of the Democratic Party. But on Chief Executive selection day, in March 2012, Ho received only 76 votes. The current Chief Executive Leung Chun-ying won with 689 … and has been mocked ever since as Mr. 689 to advertise the miniscule size of his mandate.

Still they persist.  But veterans say organizing for this year’s small-circle exercise was much easier than in 2006 and 2011. They credited the consciousness-raising 2014 Occupy protest movement and all that has happened since for the new energy. … along with their number one “ABC” rallying cry … only to see it dissolve at the very last moment.

Their goal this time had been to win 300 of the 1,200 Election Committee seats. The aim was not to engage in the futile exercise of nominating one of their own. Instead they wanted only to be able to use their voting power to block CY on selection day next March.

They worried about a sudden collapse of fighting spirt when he withdrew from the contest just two days before the December 11 poll.  But another surprise was waiting: with or without CY, voters turned out for this small-circle election like never before. The turnout rate was almost double that for the last sub-sector election in 2011. Then it was only 27.6%. Last Sunday’s turnout: 46%.

YET ANOTHER POST-OCCUPY ELECTION: The 2016 Election Committee

Following a November nomination period, 1,539 candidates were validated. They vied to fill 733 seats in their respective sub-sectors. The remainder on the 1,200-member committee were uncontested.

Some 230,000 people who could prove they were associated with the sectors in question were deemed eligible to vote.

According to one estimate, the number of identifiable pro-democracy candidates was 364 … compared to 1,093 for pro-establishment and loyalist partisans.*  

On Election Day, voters received specialized ballots containing only the names of candidates vying for seats in each sub-sector. Each voter could vote for as many candidates as there were seats to fill in his/her sub-sector. They could vote for fewer but not more than that number.

Democrats were especially active in organizing coalitions and lists for the professionals Sector Two sub-sets where pro-democracy partisans are concentrated. Sub-sectors where democrats have always done well are the same few that are able to elect Functional Constituency representatives in the Legislative Council: legal, information technology, health services, education, and accounting, plus social welfare in Section Three.

What set their campaign apart this year was a more systematic effort than in 2006 and 2011, to organize groups and lists of likeminded candidates. Since voters could vote for the full number of committee members per sector, and could not easily remember the names of so many people, crib-sheets were provided and allowed for reference while voting.

The lists were also well-organized with the seven pro-democracy Functional Constituency legislators organizing themselves initially into the Professionals Guild the better to coordinate campaign work, mobilize candidates, and encourage voters to come out on Election Day. The Professionals Guild overlapped with Democrats300+ that also encouraged participation among pro-democracy candidates and voters.

That overall effort reinforced groups and lists from several sub-sectors. One successful list, Academics in Support of Democracy, was headed by the two founders of the original Occupy Central movement. They are still routinely vilified by the pro-Beijing loyalist media for starting that campaign. But the list of candidates organized by Professors Benny Tai (HKU) and Chan Kin-man (CUHK) took all 30 seats in the higher education sub-sector.

Ditto the legal professionals’ effort where pro-democracy candidates also swept the 30-seat sector. Their joint campaign lists, ProDem21 and PanDem9, added up to 30 candidates … one for each of the 30 sub-sector seats.

The 21 were independent non-party-affiliated legal professionals. Their pan-dem colleagues belonged to various political parties including the Democratic Party’s Albert Ho, and the Civic Party’s Alan Leong. The latter stood as a Chief Executive candidate in 2006, as did Albert Ho in 2011.

The pro-Beijing press demanded that not a single advocate of Hong Kong independence be allowed onto the Election Committee. But at least one made the grade. Chan Chak-to, who had slipped under his returning officer’s radar and stood as a candidate in the Legislative Council election (Kowloon East), did it again. He joined the democrats’ IT Vision group and made up for his loss last September by winning an Election Committee seat in the information technology sub-sector on December 11.

In 2011, only one sub-sector won a full complement of democrats. Last Sunday six sub-sectors elected only democratic candidates to fill their seats.

The Election Committee’s overall design nevertheless prevailed and as always guaranteed the outcome. Pro-establishment candidates: loyalist politicians, business tycoons, etc., account for some 868 seats on the new 2016 Election Committee. More than enough to nominate at least three candidates at 150 nomination signatures per candidate, and anoint one of their number as Chief Executive with the votes of 601 committee-member electors. The pro-democracy total: 326 seats.

WHAT TO DO WITH THOSE 326 VOTES?

 The discussion turned immediately to the question of how best to use the small power base they’ve built within the committee of electors. Before December 9, democrats were united around a single goal: to deny CY Leung a second term.

Now they can be king makers but without a king of their own. They are definitely disinclined to join the contest themselves. They see it as a waste of scare resources and a futile gesture they no longer need to make in order to publicize their arguments for universal suffrage election

So they’re contemplating the next worst possibility after CY, and waiting for other candidates to oppose … and vote strategically against. There are four potentials with no indication as yet that Beijing has given the nod to any one of them.

For now, discussion is focusing inward on democrats themselves, on how they can overcome their differences to make an effective impact and what demands they can agree to make. Especially they need to agree on what questions to ask the candidates in order to gauge how they will respond to key democratic concerns.

Chief among the concerns is how the candidates perceive their role in relation to Beijing and all the pending political changes that seem to be threatening Hong Kong’s way of political life.

For example, where do the candidates stand on Article 23 national security legislation? It’s been resting on the shelf since 2003. Do they anticipate reintroducing it during the coming five-year term as loyalists are now demanding in response to localist demands for Hong Kong independence?

This would be a question directed especially to Regina Ip, one of the potential candidates, who has not forgotten that most dramatic failure of her career. It led to her resignation from the civil service and transformation into a directly-elected Legislative Councilor. But her inclinations are still conservative, loyalist, pro-establishment.  And she never misses an opportunity to remind Hong Kongers that passing Article 23 legislation is their “constitutional duty.”

Where do the candidates stand on political reform? And do they understand that reviving Beijing’s August 31, 2014 directive, as Beijing seems to expect, will be a non-starter?

This would be a question directed especially to Chief Secretary Carrie Lam, another potential candidate. She played a hardline role as CY Leung’s loyal deputy throughout his five-year term and seemed disinclined to give an inch during the long 2014-15 political reform controversy.

Will there be a forthright appraisal of the Hong Kong booksellers’ cross-border encounter with mainland justice?   And will the next Chief Executive agree to abandon CY Leung’s crusade against the newly-elected “separatist” Legislative Councilors?  He’s seeking to remove four more for taking insincere oaths during the October 12 swearing-in ceremony, with a fifth slated for “investigation.”

These would be questions for all the candidates but maybe especially for retired judge Woo Kwok-hing whose instincts and inclinations seem liberal but are perhaps not entirely so. He threw his hat in the ring as a potential candidate several weeks ago.

CY Leung’s Financial Secretary, John Tsang, seems set to declare his interest in succeeding his boss.  Tsang likes to talk about his “localist” sympathies …  but he has never discussed these within the context of Beijing’s escalating campaign against all forms of localist “separatism.”

Will the candidates try to convince Beijing of the need to re-think its one-size-fits-all mainland political mindset in dealing with Hong Kong?  Will they speak to Beijing on Hong Kong’s behalf?  Or do they intend to follow in CY Leung’s footsteps and present themselves as Beijing’s resident representative here?

 

* https://en.wikipedia.org/wiki/Hong_Kong_Election_Committee_Subsector_elections,_2016

hkfocus2017@gmail.com

Posted by Suzanne Pepper on Dec. 14, 2016

 

 

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THE IDEA OF HONG KONG INDEPENDENCE … One Year On

The idea had already been germinating on college campuses for some time, but it was only just a little less than a year ago that anyone was daring enough to come out openly for Hong Kong independence. Chan Ho-tin launched his Hong Kong National Party in late March.   Edward Leung Tin-kei of Hong Kong Indigenous preceded him by a few weeks, in spirit if not yet in so many words.

Their rationale: We’ve been waiting for decades. Beijing evidently has no intention of ever allowing Hong Kong the autonomous space and safe democratic government we thought we had been promised when the British left in 1997. So we might as well try and strike out on our own.

The verdict so far: it’s not going very well. Still way too soon for any conclusions about long-term costs, benefits, unintended consequences, and whether such a cause will ultimately prove worth the risk adherents are taking. But for now that particular response to Hong Kong’s political stalemate has suffered a setback.

Beijing has used the independence idea as an excuse for further meddling in what was generally regarded to be a local matter. As a further result, the guardians of Hong Kong’s much-prized judicial independence are doing their best to keep up appearances but a blow has been administered nonetheless.

In addition, all democracy activists have been placed on the defensive and many more than just two recently-elected legislators may lose the seats they won to so much acclaim in the September 4 Legislative Council election (Sept. 8 post).

The latest crisis is, of course, the one precipitated by Youngspiration ex-legislators-elect Baggio Leung Chung hang and Yau Wai-ching during the Legislative Council swearing-in ceremony on October 12.     It’s difficult to decide what provoked more indignation: the derogatory language they wove into the standard oath of allegiance, or the banners they displayed proclaiming “Hong Kong Is Not China” (Nov. 3 post)

The combination was sure to bring down Beijing’s wrath upon their heads and so it has … on many heads.

As far as the immediate present is concerned, Hong Kong’s democracy movement would have been better off if this episode had not happened … for reasons both legal and political.

LEGAL CONCERNS

The details are still evolving as the appeals process winds its way through Hong Kong courts. The first appeal, announced today, upholds the initial November 15 judgement against Leung and Yau.

Hovering above all, however, is a fast-track emergency decree proclaimed by Beijing in the form of a Basic Law interpretation (Nov. 14 post).  Only five interpretations have been issued since the Basic Law came into effect on July 1, 1997. This one interprets Hong Kong’s Basic Law, article 104 on oath-taking.

Legal details are best left to the professionals and a good place to begin are the articles by Civic Party barristers Gladys Li and Audrey Eu.*   But Beijing’s decree … as an imprimatur from on high … was also meant to impress the general public and at this level the consequences are serious enough whatever the legal niceties.

A story is told about “Long Hair” Leung Kwok-hung’s introduction to the Legislative Council. He was first elected in 2004 and as a mark heralding his arrival he wanted to compose his own swearing-in oath. But he received and took some legal advice beforehand. He was told by a judicial authority that if he read out the words he had in mind, he would not be sworn in.

Leung therefore took the standard oath and then added some flourishes afterward to say what he had to say. He called for the vindication of those killed in Beijing on June 4, 1989 and an end to one party-rule in China. He finished off by shouting a couple of slogans for democracy. And that was the end of that. He was sworn in and took his seat along with everyone els

Fast forward a dozen years and thanks to the sequence of events set in motion by Leung and Yau on October 12, no councilor will have the freedom to improvise the swearing-in ceremony ever again.

Leung Kwok-hung’s story contains some useful points of reference for the legal drama now playing itself out.   The lessons his experience might have conveyed is that the Hong Kong judicial authorities do not take lightly the matter of oath-taking. They could therefore have been relied upon to sanction Leung and Yau for their disrespect.

Leung Kwok-hung’s experience thus also suggests that the matter could have been adequately resolved here in Hong Kong, without Beijing’s intervention.

In fact, the task of sanctioning the Youngspiration pair might have been handled within the Legislative Council itself. Its current president had decided their oaths were not valid and must be retaken. Or the case might at least have remained in Hong Kong after Chief Executive Leung Chun-ying hastened to lodge his judicial review request asking a local judge to decide what should be done.

But if the matter had ended there and Beijing allowed what had happened in Hong Kong to remain in Hong Kong, as a mark of respect for its principle of judicial independence, then the precedent “Long Hair” set in 2004 by shouting subversive slogans in the Legislative Council chamber after taking a proper oath would have been allowed to stand.

Leung and Yau would probably have been allowed to retake their vows. If not, at least the slogans added by several others that day, on October 12, would have been allowed to remain unpunished, and on the record as well (Nov. 14 post).

A dozen years later, Beijing decision-makers think they have reason not to be so tolerant.   They were unwilling to let the matter rest and the implications of Beijing’s fast-track November 7 interpretation … proclaimed before the Hong Kong judge‘s November 15 decision … are far reaching.

Yet again, as with the Basic Law’s promises of universal suffrage, the public sees that Hong Kong’s Basic Law loopholes are for Beijing, not Hong Kong, to fill in. Judge Thomas Au did his best to keep up appearances, adding a disclaimer to his judgement that he would have reached the same conclusion about disqualifying Leung and Yau without Beijing’s intervention.   The Leung Kwok-hung story lends weight to his claim.

But Judge Au’s defense seems not to count for much since Beijing’s interpretation goes well beyond his decision to disqualify the Youngspiration pair for not taking their oaths properly.

Added to Beijing’s version, for example, is the proviso that invalidated oaths cannot be retaken. Judge Au’s explanation as to why he, too, would not allow them to be retaken … based on his ex post facto re-reading of Hong Kong’s own oaths ordinance that says an office must be vacated if the oath is not properly taken … reads like a hastily-drafted play on words. Actually, there is no particular reason not to do more with those words and allow a retake … except for Beijing’s say so. **

More important in Beijing’s version: the form and content of the oath cannot be altered, the manner in which it is taken must be sincere and solemn. Additionally, the oath-taker must pledge allegiance to the People’s Republic of China AND its Hong Kong Special Administrative Region … NOT as the Basic Law’s Article 104 reads: to the HKSAR of the PRC.

Most difficult of all, however, is the final proviso in Beijing’s November 7 interpretation: “The oath-taker must sincerely believe in and strictly abide by the relevant oath prescribed by law. An oath-taker who makes a false oath, or, who, after taking the oath, engages in conduct in breach of the oath, shall bear legal responsibility in accordance with law.” ***

POLITICAL IMPLICATIONS

That final proviso opens a Pandora’s Box of possibilities, all negative. Commenting on the interpretation, Wang Zhenmin who is in charge of legal affairs at Beijing’s liaison office here, said that by his calculation a total of 15 legislators did not take their oaths properly.

And sure enough, ordinary citizen electors, pro-Beijing loyalists all, have now followed the example of Chief Executive Leung Chun-ying. As electors it is their right and they have invoked it to lodge requests for judicial reviews aimed at disqualifying many of those 15.

For its part, the government is now zeroing in on one in particular. It’s asking for a judicial review on Teacher Lau Siu-lai from Kowloon West. But she had been allowed to retake her oath, which she did, properly, so her case will allow the judges somewhat more leeway … if they dare to defy Beijing and use it.

Still, the prospect of losing more seats is not the greatest concern. There is one greater, namely, how to frame the next phase of Hong Kong’s political struggle. The current ramped-up rhetoric from Beijing suggests that task is becoming more difficult not less.

Beijing’s top Basic Law authority, Li Fei, commenting on the November 7 interpretation, made a point of equating the new Hong Kong independence idea with self-determination (Nov. 14 post).  This alternative is also new and it too grew from the upsurge of dissent that produced the 2014 Occupy protest. There is no space between the two, said Li Fei and so say all of Beijing’s commentaries on the question.

This is going to make political life and political speech very difficult for all of Hong Kong’s pro-democracy political parties since all have now declared themselves for self-determination. The more moderate, like the Democratic Party, make a point of distinguishing clearly: independence, no, they say; self-determination, yes.

So that if the final proviso in Beijing’s November 7 interpretation is taken word for word, as judges do, then all of Hong Kong’s pro-democracy Legislative Councilors are at risk. All can be accused of : “after taking the oath,” engaging in conduct in breach thereof, and they can be charged according to the law.

What is conduct unbecoming? What will take precedence in deciding: the principle of free speech and the Basic Law’s Article 77 … granting immunity to Legislative Councilors for whatever they say in the chamber and safe passage to and from its precincts … or Beijing’s November 7 interpretation?

Another case to consider is that of Hong Kong’s most famous democracy activist, Joshua Wong Chi-fung. He and fellow activist Jeffrey Ngo, currently a student in the United States, recently wrote an opinion piece for the Wall Street Journal (Nov. 9/10).

In it they went out of their way to distance themselves from advocates of independence. “Some radicals in Hong Kong,” they wrote, “have been quick to instigate xenophobic and nationalistic sentiments. But this is unnecessary. Neither sovereignty nor nationalism are prerequisites to self-determination. That right, according to the U.N., applies to all non-self-governing peoples. It is a fundamental right, based on history, that Hong Kongers deserve to exercise.”

Yet all they received in return for their discriminating use of words was an immediate blast from Beijing. “The writers of the article are openly advocating ‘Hong Kong independence’,” declared a protest letter to the paper from the Chinese Foreign Ministry’s office here (Nov. 16).

The letter referred readers to an opinion piece published in the same paper on October 19 by Song Zhe, who heads the Foreign Ministry office.  Regardless of whether it means independence or secession, Song had written, self-determination is “completely irrelevant to Hong Kong.”

CHRIS PATTEN RETURNS

Hong Kong’s last British governor Christopher Patten paid a return visit over the weekend evidently for the express purpose of addressing Hong Kong’s mounting political tensions. After his controversial tenure in the 1990s, when he infuriated Beijing with his last-ditch political reform agenda, he has mostly avoided commenting directly on sensitive Hong Kong political matters.

Not this time. Patten, who is now chancellor of Oxford University in Britain, addressed the Hong Kong independence idea and the oath-taking saga at every stop. But he also cast the difficulty of framing Hong Kong’s current political struggle in sharper focus, although that probably wasn’t his intention.

During his November 25 speech at the Foreign Correspondents Club (http://www.fcchk.org/chris-pattens-fcc-speech-in-full/), he chastised the Younspiration pair for their swearing-in performance. The idea of Hong Kong independence was a non-starter, he said   … so “it would be dishonest, dishonorable and reckless” to mix up an argument for Hong Kong independence with the demand for democracy.

But he also said he was saddened to see the “moral high ground” achieved during Hong Kong’s 2014 Occupy protest being squandered in such a manner. He did admit that progress in the direction of democratic political reform was proceeding too slowly for his taste. He had expected it to move faster.

Nevertheless, in response to a question, he said he would rather see Hong Kong hone its debating skills for use in arguments with Beijing about democratic reform than dissipate good will with futile demands and juvenile antics (SCMP, Nov. 26).

That was on Friday. On Saturday he spoke in more general terms about a government’s need to listen to young people with all their frustrations and aspirations. Otherwise they would tend toward extremism and resort to insensible pursuits (SCMP, Nov. 27).

But then on Sunday, he told an RTHK interviewer he didn’t really understand why Beijing had rushed out its interpretation of Article 104, when Hong Kong’s own courts were obviously able to manage the situation on their own (Standard, Nov. 28).

Finally, on Monday at the University of Hong Kong, he repeated his warning about squandering good will at home and abroad by mixing up demands for independence with those for democracy (SCMP, Nov. 29).

He also dismissed the self-determination idea as being “pretty much” the same thing as independence … just a play on words actually (Standard, Nov. 29).

Yet through it all he offered no suggestions as to how Hong Kong’s case for democratic reform could be phrased to better effect.

Nor did he acknowledge that the Occupy moral high ground he seemed to admire so much was achieved by saying “no” to Beijing’s mandate for mainland-style party-vetted elections.

Local democrats of all kinds had proposed many other variations, honing their skills in a community-wide debate that continued for well over a year. Yet Beijing had rejected all such compromise proposals including even the most moderate and obviously well-intentioned.

It followed that after Occupy, some of its young leaders tried to sharpen their arguments further, which is what led them to the idea of self-determination and beyond.

In many respects the Oxford University chancellor sounded like Governor Chris Patten frozen in 1997 time. He seemed genuinely perplexed as to why Beijing had stepped in with its November 7 interpretation.

And if he couldn’t understand the reasons for Beijing’s intervention, then he also hasn’t yet forced himself to recognize just how far down the road toward cross-border political integration Hong Kong has been obliged to travel since he sailed away at midnight on July 1, 1997.

The nuanced distinction campaigners are trying to make between independence and self-determination … in response to those pressures toward integration … seem to have escaped him entirely.

During the RTHK interview he recalled nostalgically  how everyone had said “one-country, two-systems” couldn’t work. All things considered, he thinks it has worked rather well. But he didn’t help out by suggesting some debating points that might address the democracy movement’s current dilemma.

If self-determination is the same as independence, and Legislative Councilors are going to be punished for violating the terms of their oaths of allegiance to the People Republic of China because they are exploring the possibilities for self-determination, then in the words of one moderate pro-democracy Legislative Councilor, the current oath-taking saga marks the beginning of the end of Hong Kong as we know it.

 

*   https://www.hongkongfp.com/2016/11/22/objective-look-oaths-declarations-ordinance-part-i/

https://www.hongkongfp.com/2016/12/06/the-road-of-no-return-part-1-beijings-ruling-on-hong-kongs-basic-law-cannot-be-justified/

https://www.hongkongfp.com/2016/12/07/road-no-return-part-2-courts-handled-oaths-row/

 **   http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=106802&currpage=T

 ***     http://www.chinadailyasia.com/chinafocus/2016-11/07/content_15522280.html

 

hkfocus2017@gmail.com

Posted by Suzanne Pepper on November 30, 2016

 

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BEIJING STRIKES BACK: The Risks Defined

Newly-elected legislators at the center of Hong Kong’s latest political storm knew they were playing with fire when they mangled their swearing-in oaths. They were supposed to pledge allegiance to the People’s Republic of China, to Hong Kong as part of China, and swear to uphold Hong Kong’s Basic Law constitution … as stipulated in its article 104.

They did all that but then went on to make a stand for Hong Kong independence. They also used some crudely insulting language and carried banners that said “Hong Kong Is Not China.” *

The two are Sixtus Baggio LEUNG Chung-hang 【梁頌恆】 elected from New Territories East, and YAU Wai-ching 【游蕙禎】 from Kowloon West. Both are members of the new 2014 Occupy protest generation and the new post-Occupy political party Youngspiration 【青年新政】. They’re referred to as localists to differentiate them from other pro-democracy partisans.

The two had said during the election campaign and after that they wanted to carry their message into the Legislative Council chamber itself. But since these new-generation radicals had scoffed at their predecessors’ habit of throwing water bottles and tearing up documents, listeners were left wondering what the new-comers had in mind. They had also said their goal was to establish the idea of Hong Kong nationalism, to create a greater sense of local identity that would differentiate Hong Kong from the mainland.

They obviously meant what they said since their oath-taking theatrics at the October 12 swearing-in ceremony were designed to do exactly what they had promised. Whether they foresaw the size of the storm they would provoke is for them to say.

It’s also way too soon to try and calculate how their consciousness-raising routines will play out … and whether this latest act of defiance will eventually prove worth the risk like others before them (Nov. 3 post).

But Beijing has now done its part by raising temperatures and escalating the confrontation to a new more serious phase. The swearing-in ceremony has finally provoked a direct response from the central government that had maintained a relatively hands-off approach since the 79-day Occupy street blockades in 2014.

Beijing has relied on the Hong Kong government and local loyalist surrogates to try and block the rise of Hong Kong dissent … so far without success. Loyalists’ failure to make any gains in the September 4 election was proof enough that Hong Kong’s dissident movement was not being contained.

Instead it has begun to take root in the form of increasing demands for genuine autonomy, democratic self-determination, and on to independence. A direct deliberate challenge to Beijing’s authority by the new legislators from within the Legislative Council chamber itself was the last straw.

Beijing’s intervention seems set to have the widest repercussions of any since Hong Kong’s return to Chinese sovereignty in 1997.   Now at least everyone can begin to anticipate how the risks are going to be defined and what price Beijing seems bent on extracting from Hong Kong for such defiance.

INTERPRETING THE BASIC LAW, ARTICLE 104

To outsiders, the whole episode must seem trivial enough. Two young people misbehave over a simple matter.   So Beijing steps in to remind them they’re all grown up now and as full-fledged Legislative Councilors are expected to take the swearing-in ceremony seriously.

In fact, Beijing’s interpretation of Article 104 on oath-taking has major political and legal implications that range far beyond the simple matter of swearing in. These impinge on many of the most valued guarantees that Hong Kong originally thought had been safeguarded by its new post-colonial Basic Law constitution.

The guarantees include especially: judicial independence (Articles 19, 85); freedom of expression (Article 27); freedom of expression within the Legislative Council chamber (Article 77); the right to stand for local elections (Article 26); and Article 79(7), on declaring Legislative Councilors unfit for office when they are censured for misbehavior or breach of oath by a two-thirds vote of council members.

Beijing’s much-advertised promise to intervene directly only in matters of defense and foreign affairs is already long-forgotten, while Articles 158 and 159 on Beijing’s power to interpret and amend the Basic Law loom ever more ominously.

At a single stroke, Beijing’s interpretation of Article 104 … before Hong Kong itself could deal with the matter … suggests how every guarantee can be redefined and qualified at Beijing’s discretion.

Precedents have already been set for Beijing’s formal interventions on other grounds. But this is the most far-reaching in its potential implications for Hong Kong’s fundamental rights and freedoms. If the official and semi-official explanations accompanying the interpretation are any indication, there can be serious consequences to come.

The episode escalated rapidly.   Leung and Yau were initially told by the council president they could retake their oaths at the next sitting. This they agreed to do and the matter looked set to be contained within the Legislative Council itself.  But when the hour arrived, all pro-establishment legislators walked out of the chamber, demanding that legislators apologize. Without a quorum, the meeting could not proceed.

The next day, Hong Kong Chief Executive Leung Chun-ying applied for a judicial review. This intervened in council business and ostensibly violated the separation-of-powers principle, which is only implied in the Basic Law but nowhere guaranteed.

Based on Hong Kong’s own law about oath-taking for all officials, he asked the Hong Kong court to issue a decision on whether the two should be disqualified as legislators.

Then, before the court could act, Beijing stepped in with a decision of its own, on November 7, preempting the Hong Kong court’s judgement. It was no longer just a matter of Legislative Council business, or even that of the Hong Kong court and Hong Kong’s Chief Executive.

Beijing’s interpretation is simple enough and concisely drafted.** It doesn’t refer to the case of the two legislators and doesn’t say anything about being retroactive to include their behavior on October 12. It says only that Hong Kong officials must pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, in accordance with the Hong Kong Basic Law’s article 104.

Hong Kong’s own law on oath-taking contains such an injunction but the interpretation from Beijing adds some details, like: the content of the oath must also become the legal requirement and precondition for standing for election and taking up public office. No corresponding powers or functions can be exercised or perks enjoyed without taking the oath.

Also, the oath must be taken sincerely, solemnly, accurately, and completely. Otherwise it’s invalid and the oath-taker is disqualified from assuming the office in question. If the oath taken is determined to be invalid, no arrangement shall be made for the individual to retake the oath.

And the oath is legally binding. “The oath taker must sincerely believe in and strictly abide by the relevant oath prescribed by law. An oath taker who makes a false oath, or, who, after taking the oath, engages in conduct in beach of the oath, shall bear legal responsibility in accordance with law.”

The document was immediately submitted to the presiding Hong Kong judge who must now thread the needle by issuing a decision on the Chief Executive’s request to disqualify the two legislators, in accordance with Beijing’s interpretation, and maintain the appearance of judicial independence … all at the same time.

Actually, this could be done easily enough since the two legislators are not specified in the interpretation and it says nothing about being retroactive. Lawyers have their ways and legal arguments can be made in many directions … but for this we must await Judge Thomas Au’s decision. ***   In the meantime, the furies have been unleashed in an effort no doubt to help him reach the correct conclusion.

ELABORATIONS FROM ON HIGH AND PRESSURES FROM BELOW

If official, semi-official, and unofficial statements are any indication, the real-life consequences will be far-reaching. Chief among those from above, in Beijing, is the aim of stamping out “firmly and without hesitation” the new independence idea.

From below, in Hong Kong, are calls to deprive many legislators of their newly-won seats. The reason: their oaths were not taken solemnly and sincerely in accordance with Beijing’s Article 104 interpretation.

Beijing’s leading point man on Basic Law matters explained that an interpretation was necessary due to loopholes in Hong Kong’s current legal system. The Article 104 interpretation was adopted to fill those gaps and avoid further disputes. Li Fei 【李飛】was speaking at a press conference in Beijing soon after the interpretation was issued on November 7.

He denied that Basic Law interpretations are a threat to Hong Kong’s judicial independence and blamed Hong Kong legal authorities for that idea. They had been spreading such fallacies for decades … misleading the public by suggesting that any Basic Law interpretation is equivalent to Beijing interfering with Hong Kong’s judicial independence.

Li said the interpretation was made to help Hong Kong courts implement laws accurately. Beijing’s interventions are in fact intended to safeguard Hong Kong’s rule of law and are manifestations thereof. But he also emphasized that Beijing’s interpretations have the same status as the Basic Law itself and are meant to be obeyed. Hong Kong courts must follow where Beijing leads.

On the specific matter in question, Li Fei said advocating Hong Kong independence threatens the nation’s sovereignty, security, and integrity. Hence Beijing is firmly against allowing anyone who advocates separatism to become a member of any official Hong Kong body.

And that goes for those advocating democratic self-determination as well. They’re all the same: seekers of separatism from the mainland. All must be “strictly opposed.” (China Daily, Wen Wei Po, Nov. 8).

In Hong Kong, loyalists hastened to get the anti-independence ball rolling and do some consciousness-raising of their own. This began with a rabble-rousing boost from old time hardliner Chen Zuo’er 【陳佐洱】.

Chen is a retired Beijing official and now heads a mainland think-tank that holds periodic seminars across the border in Shenzhen. These are used to generate publicity in the greater Shenzhen-Hong Kong area for Beijing’s causes.

At such a forum on November 9, Chen dropped the low-key style of past mainland reminders to Hong Kong’s judiciary about supporting the executive. He blasted the courts for molly-coddling Hong Kong activists such as those who had emerged from court trials with only wrist-slapping reminders of their roles in the illegal Occupy street blockades.

He said there had been many such cases with national security implications because they targeted Beijing’s authority. But Hong Kong prosecutors and judges don’t treat them as such.

Chen also criticized Hong Kong’s legal profession for coming out strongly against the interpretation. He said either they didn’t understand it or were using the law as an instrument of political struggle.

To show Hong Kong how things should be done, the pro-Beijing media had identified eight types of insincere oath-taking at the October 12 swearing-in ceremony. The culprits were named along with a headline suggesting they should be flagged for further investigation.

The eight: Baggio Leung, Yau Wai-ching, Teacher Lau Siu-lai, Demosisto’s Nathan Law, king-of-votes Eddie Chu, and Civic Passion’s Cheng Chung-tai, plus two Functional Constituency legislators: Edward Yiu and Shiu Ka-chun (Wen Wei Po, Nov. 8).

The Shenzhen forum took the lesson a step further with one speaker saying as many as 15 legislators had violated the terms of proper oath-taking. This calculation was included in the remarks by hardline mainland legal authority Wang Zhenmin 【王振民】. He now heads the legal department at Beijing’s Hong Kong liaison office (Wen Wei Po, SCMP, Nov. 10).

Back in Hong Kong a trade unionist was wasting no time in pursuit of his patriotic duty. Robin Cheng Yuk-kai 【鄭玉佳】filed a judicial review petition at the High Court on November 9.

He’s seeking to disqualify eight lawmakers … adding some new names to the mix … all for having violated the terms of Beijing’s Article 104 interpretation on sincere oath-taking (Ta Kung Pao, SCMP, Nov. 11).

The details may be trivial, but the implications and risks are not. Legislators-elect Leung and Yau saw oath-taking as an opportunity to strike a blow for the new idea of Hong Kong independence.  Beijing took advantage of the same opportunity to strike back against both that idea and against Hong Kong’s judicial tradition for allegedly protecting the idea’s promoters.

Chen Zou’er is right. This is a political struggle. But it’s being played out in the name of two different legal traditions and Hong Kong’s judicial establishment is not alone in waging it.

 

* For the controversial oaths in question, see:http://www.legco.gov.hk/general/english/procedur/matters/yr16-20/procb3-43-1617-e.pdf

** http://www.chinadailyasia.com/chinafocus/2016-11/07/content_15522280.html

 

***  Update, Nov. 15:  Judge Au ruled in favor of the Hong Kong government but maintained a modicum of independence by saying he had reached his conclusion independent of Beijing’s Basic Law Article 104 interpretation.  He said the oath must be taken sincerely and solemnly, but Leung and Yau had not done so.  He said Hong Kong is different from Britain where parliament is supreme and no written constitution exists.  In Hong Kong the Basic Law is the constitution and it is supreme over the Legislative Council.

 

hkfocus2017@gmail.com

Posted by Suzanne Pepper on November 14, 2016

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ANOTHER RISK WORTH TAKING?

(Due to a temporary website malfunction, this article was originally posted on Nov. 1, at http://suzannepepper.wordpress.com/)

 

Against all the local norms of proper public behavior, Hong Kong’s pro-democracy activists have yet to suffer serious consequences for their defiance. Officials and other conservatives have always maintained, going back to colonial days, that the general public values social harmony above all else. That old assumption has always been beloved by Chinese rulers and elders … probably because they discovered ages ago that social harmony made their lives easier and power more secure. But those old ideals have been sorely tried in Hong Kong since its 1997 return to Chinese rule.

For every big upsurge of political disharmony, as Hong Kongers have tried to push back against one mainland political intrusion after another, popular sentiment has not turned against the purveyors of dissent and opposition. On the contrary, public approval has grown. The most recent episodes of defiance were the street blockades that disrupted city life for over two months during the 2014 Occupy protests, and the Lunar New Year violence in Mong Kok earlier this year.

Afterward, the perpetrators and champions of those disruptive events were rewarded in local elections that by official reckoning were supposed to measure public disapproval. Instead voters did just the opposite. During the recent Legislative Council election campaign, Hong Kong’s Chief Executive Leung Chun-ying and pro-Beijing politicians tried to rally the public with cries of “vote them out.” The reference was to all the pro-democracy Legislative Councilors who had defied him by vetoing his Beijing-designed political reform bill last year … and to all dissident trouble-makers and rioters everywhere.

Some of those councilors were voted out but not by loyalists. Instead, even more trouble-makers, and friends of the rioters as well, were rewarded by voters on September 4  (Sept. 8 post).  The new-comers had pledged, if elected, to carry their street protests into the Legislative Council chamber and several of them did just that. On the very first day as soon as the first session was called to order. The proceedings were consequently brought to an abrupt halt and business-as-usual has yet to resume.

But the full consequences will be registered in many other ways.  Once again officials and elders are predicting a bad end for the perpetrators … who had calculated beforehand that what they aimed to do was, like Occupy and Mong Kok, another risk worth taking.

RECAP: THE OATH-TAKING

Several councilors added some extras to the formal oath that all must take at the start of each new term.  All councilors, including both those re-elected and new comers, must pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, and pledge to uphold Hong Kong’s Basic Law constitution.

The two at the center of the storm. that followed are Baggio LEUNG Chung-hang 【梁頌恆】and YAU Wai-ching 【游蕙禎】, both from the new post-Occupy political party Youngspiration 【青年新政】.  They are two of the six post-Occupy localists elected on September 4 (Oct. 5 post).

While taking their oaths, both displayed banners with the words “Hong Kong Is Not China” printed in English. They also added to the standard phrases others declaring their loyalty to the “Hong Kong nation.” And as if that wasn’t enough, they pronounced the word China in a way that sounded like “Chee-na,” mimicking the derogatory pronunciation used by the Japanese during their mid-20th century occupation. As a further insult, Yau called it the ”People’s Re-fucking of Chee-na” (Oct. 19 post).

They could have put their point across without being quite so insulting but they did it deliberately. Both know their Chinese history and both have grown up in post-colonial Hong Kong. So they must have foreseen the result, although the full potential implications took a couple of weeks to emerge. If the powers-that-be have their way, the Youngspiration pair will not be given a second chance.

They have told their Facebook friends that contacts in the Registration and Electoral Office say that staffers have been told to prepare for Legislative Council by-elections. Since no seats are currently vacant, that must mean … if the hearsay is true … that the government expects to succeed in its effort to remove them.

Although the offenders haven’t actually said so, such a result might be just what was intended: to mobilize a single-issue campaign as the most effective way of protesting mainland political intrusions. The issue of Hong Kong autonomy could then become the sole focus of public attention in a way that was not possible during the last conventional Legislative Council election campaign. Although maybe they weren’t anticipating something quite so soon. Leung has said that he doesn’t expect to be allowed to contest the next, 2020, Legislative Council election due to the agitation he’s planning to undertake in the meantime.

Added to the costs and benefits of losing their seats immediately, however, is the method chosen by Chief Executive Leung Chun-ying to try and make sure they do.

CALCULATING ALL THE RISKS

Democrats have been troubled at many points since 1997 by the recurrent insistence, from mainland officials and local loyalists, that it is the duty of the judicial system to support the executive. Democrats (who might otherwise be designated as “two-systems” purists) see Hong Kong’s judiciary as the last bastion of defense against Beijing’s “one-system” encroachments.

Such purists can be defined as those who took literally Beijing’s original promise of “one-country, two-systems,” and believed it meant autonomy for the Hong Kong system. By their standards, Hong Kong’s executive and legislative branches have essentially been lost already.

Such people take refuge in the separation-of-powers principle that they think is guaranteed by Hong Kong’s post-1997 Basic Law constitution. It isn’t, say loyalists. Maybe not in so many words, reply democrats, but the principle is. They point especially to the Basic Law’s Article 85 that says Hong Kong courts “shall exercise judicial power independently, free from any interference.” Some of them also say that CY Leung’s intervention in the loyalty-oath drama is yet another instance of trying to use the courts to support the executive … and hence another encroachment on the separation-of-powers ideal.

Initially, on October 12, the presiding officer did not accept the oaths of Baggio Leung and Yau Wai-ching, and refused to swear them in.* The decision about what to do next was then left to the Legislative Council president. This position is filled by the councilors themselves. Since 1997, pro-establishment councilors have always been in the majority and have always selected one of their own. The person has also always been chosen only after consultation with Beijing’s liaison office here.

Since the previous president had just retired, it was the new man’s first day on the job so to speak. He decided to allow the two councilors to retake their oaths at the next council meeting a week later.

On October 19, however, the two could not retake their oaths. By that time, official wheels had been set in motion. All pro-establishment councilors left the chamber as oath-taking began. They said they would not return until the two had apologized for insulting the Motherland. Since the council cannot meet without a quorum, the two could not be sworn in.

But this was just a delaying tactic adopted in coordination with the Chief Executive’s two-pronged attempt to bar Leung and Yau from ever taking their oaths again. The day before, on October 18, he had applied for a fast-track judicial review, asking the court to decide whether the two had already disqualified themselves permanently. The review request was granted and a first hearing scheduled for November 3.

Additionally, the Chief Executive had asked for a temporary court order, barring the two from retaking their oaths until the judicial review decision had been formally handed down. This request was denied, which was what had set the quorum maneuver in motion. Since the court would not temporarily bar the two from retaking their oaths, pro-establishment councilors took care of it themselves, by walking out.

They had initially said they would not return for the oath-taking until the two apologized for their October 12 behavior. After the Chief Executive called on the courts to help out, no more has been said about an apology or a second chance. The president backtracked and withdrew that offer.

Anxiety over a second oath-taking probably derived from the immunity that councilors enjoy for whatever they say during council meetings (Basic Law, art. 77). Once formally sworn in it would be much more difficult to remove them and they could use their privileged status to champion the cause of Hong Kong independence as they pleased

The Chief Executive is asking the court for an up-or-down decision on whether the two can be disqualified permanently for having refused to take their oaths as required on the first try.   The Chief Executive’s request does not derive from the Legislative Council’s Rules-of-Procedure (Article 1) on oath-taking, which would be direct interference by the executive.

Instead, the request is based on Hong Kong’s Oaths and Declarations Ordinance (Section 21), which applies to all kinds of official oaths. Section 21 is also very mater-of-fact. It says that anyone who declines or neglects to take a required oath shall be disqualified from entering the office in question and if he/she is already in office then it must be vacated.

The Basic Law (Art. 104), requires all principal officials and legislators to take the same oath of allegiance, which government lawyers point out is intended to emphasize national sovereignty.

The two legislators-elect had been told they could no longer enter the chamber. In defiance of this instruction, some (not all) pro-democracy councilors organized a protective chain to escort them passed security guards for the next session on October 26. After the two refused to leave and the crowd of journalists that had pushed in with them ignored the president’s call for order, he again adjourned the meeting while hundreds of angry loyalists outside the building clamored for satisfaction.

Hard to think of a case that could do a better job of challenging the separation-of-powers principle. The Chief Executive himself is demanding judicial support for a request to disqualify on political grounds legislators who were duly elected by voters on September 4.

The court must therefore reach a decision: that satisfies the official political demand for the legislators’ expulsion in order to satisfy Beijing’s insistence on respect for national sovereignty; that invalidates their election; and that upholds the separation-of-powers principle … all at the same time.

But the principle can be further undermined if the decision goes against the government by holding that Leung and Yau should be allowed to retake their oaths. In that case, the government could appeal in a process that might take years to work its way up to the Court of Final Appeal.

And in that event, warns Professor Lau Siu-kai, Beijing might well take matters into its own hands, sooner rather than later, thereby further eroding Hong Kong’s autonomy. Prof. Lau is a pro-Beijing authority who reflects Beijing’s thinking but sometimes also only reflects what he thinks Beijing is thinking.

He said that if the Hong Kong government lost its case, the government would then be likely to throw down the gauntlet and issue the ultimate challenge by asking the Hong Kong court to request an interpretation of the Basic Law by the National People’s Congress Standing Committee in Beijing (SCMP, Oct. 26, online).

ANTICIPATING THE BY-ELECTION CAMPAIGNS

Beijing’s aim is to drive home the point that all pro-Beijing sources are now proclaiming in unison: these new ideas about Hong Kong independence must be nipped in the bud. But too many different kinds of people are now saying it’s too late. The ideas are circulating and cannot be stopped.

And especially the ideas can’t be stopped by ignoring the cause. Too many people are also saying that blame for the ideas must be shared by Beijing and its loyal Hong Kong Chief Executive Leung Chun-ying.

Another campaign called to replace councilors whose election was declared invalid because of their political defiance will only compound Beijing’s problem by focusing public attention on Beijing’s determination to impose mainland standards of candidate-selection.

Many more examples can now be added to the list of conservative critics who came forward with wise words after last month’s election. They called on the government to accept its share of blame for democrats’ gains and conservative losses (Sept. 20 post)

A similar admission has recently come from another unlikely source: HKU law school professor Albert Chen Hung-yee 【陳弘毅】.   Prof. Chen is an authority on the Basic Law and is known for his precise legal renditions of Beijing’s perspective on legal matters.

He was arguing that the Chief Executive’s judicial review request was not provoking anything like a constitutional crisis. This is because the Chief Executive is not violating the separation-of-powers principle because he is not seeking to intervene directly in Legislative Council affairs. The Oaths and Declarations Ordinance, Section 21, applies to all ranking officials in government not just legislators. He is only doing his duty as Chief Executive by seeing to it that the ordinance is not violated.

But then his interviewer moved on to the larger political controversies surrounding the swearing-in storm: it reflected Hong Kong’s growing political polarization … the new independence ideas were not likely to disappear … surely Beijing bore some responsibility … the central government might have made some concessions over political reform in 2014 but refused … Hong Kong’s Chief Executive is powerless against Beijing intransigence …

Professor Chen didn’t disagree with any of these pointed questions and went even further. He said Hong Kong is in a difficult place, the most difficult since the British left in 1997. Careful as always, he said he didn’t want to blame anyone. But then he stepped out of character and did. The central government is only concerned now with countering the idea of Hong Kong independence, he said.

Still, he continued, there is a role that Hong Kong’s leader can play by trying to mediate between the two … democratic and pro-establishment loyalist … camps. There is a role for the Chief Executive to play in working for better relations with the Legislative Council. Leadership skills can make a difference. But in recent years, since 2012 when Chief Executive Leung Chun-ying’s term began, tensions have only grown worse. **

Everyone now seems to understand where ultimate responsibility lies and what needs to be done. It follows that Hong Kong officials are not alone in preparing for the next election campaign. And thanks to Beijing’s determination to try and snuff it out by expelling a pair of just-elected legislators, the number one idea up for debate on the new campaign trail will be self-determination for Hong Kong.

 

*  http://www.legco.gov.hk/general/english/procedur/matters/yr16-20/procb3-43-1617-e.pdf

 ** Straight Talk, Tuesday, October 25 http://mytv.tvb.com/tc/cat_news/straighttalk/278781

 

hkfocus2017@gmail.com

 

Posted originally by Suzanne Pepper on Nov. 1, 2016, http://suzannepepper.wordpress.com/

Reposted, Nov. 3, http://chinaelectionsblog.net/hkfocus

               

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