Posted: April 7, 2009
Special or by-elections, as they are called here, usually merit little more than an honorable mention in the local newspapers and are often ignored altogether. But with the sights and sounds of the United States’ epic presidential election still fresh in people’s minds, High Court judge Andrew Cheung issued a ruling last December that struck a responsive cord among all who had followed the rhetorical flourishes of American candidates on the campaign trail. Hong Kongers know the limitations of their own voting arrangements but here was a clear case of comparative advantage. Americans had to make do with CNN’s Truth-O-Meter, whereas Hong Kong could invoke far more effective means of keeping its candidates on the straight and narrow.
Mr. Justice Cheung created a vacancy on the Shatin District Council by ruling that “no one was duly elected” from its Tai Wai constituency during the last district polls in November, 2007. This was one of 400 seats on Hong Kong’s 18 District Councils that are filled by direct elections. The winning candidate, Yuen Kwai-choi, was disqualified because he had published misleading statements about his opponent, incumbent Leung Wing-hung, thereby compromising the right to elect and be elected freely and fairly.
At issue were two leaflets that accused Leung of claiming to be a full-time District Councilor when in fact he moonlighted as a funeral consultant charging HK$500 (US$64) per referral. After losing by just 83 votes, Leung had petitioned the court for redress and Judge Cheung agreed that the consultancy did not violate Leung’s claim of full-time service, which he had continued to perform throughout. The by-election took place on March 29, when Leung regained his seat by a tidy margin of 519 votes, with a turnout rate of 49% among the district’s 12,000 registered voters.
Candidates everywhere should have recourse to such a judge but in Hong Kong he is not just keeping them honest. The Tai Wai election was also special because it provided such a clear snapshot of Hong Kong’s ongoing political struggle. After procrastinating for more than a century, the British hastened to introduce some fundamentals of Western-style representative government while Chinese officials were drafting their own designs for the post-1997 political order. Hong Kong’s transitional Basic Law constitution codified the mix that is now producing more checks than balances as adherents of the two, Western and Chinese, political value systems compete for advantage.
In this case, Yuen is a pro-Beijing loyalist and Leung belongs to the pan-democratic camp, which was a big loser in the November 2007 district elections. Loyalists are making their strongest stand for preeminence at this level (see: http://www.chinaelections.net/NewsInfo.asp?NewsID=20046). But among the fundamentals left behind by the British are a Bill of Rights and an independent judiciary. Democrats continue to invoke both for protection in a Basic Law system that is designed to limit their legislative and executive influence. By coincidence, the Tai Wai election was the first to benefit from another ruling last December by the same judge, which granted prisoners the right to vote. Democrats had challenged the prohibition against them and Judge Cheung ruled in their favor, again on grounds that voting rights must be upheld.
Since they take care to live by Basic Law rules, Democrats are using their limited options to try and entrench Bill of Rights principles in local practice, even as Beijing is using its power to delay indefinitely the promise of equal voting rights for the electorate as a whole. The strategy has not gone unnoticed, of course. But Beijing’s pushback against judicial activism is still more threat than reality, leaving democrats free for now to strengthen their defenses case by case as best they can.