Posted:  July 22, 2016

 

The authorities here are in a real bind. They should be used to it by now, having spent the last 20 years tiptoeing back and forth between the Western-style promises Beijing originally made to Hong Kong and Beijing’s constant demands for mainland-style affirmation. The immediate problem is about keeping up appearances in the name of Hong Kong’s signature “open, fair, and honest” elections … to fill seats in a legislature that has been deliberately designed as companion for an executive-led system that takes its orders from Beijing.

The September 4 Legislative Council election is also taking place in Hong Kong’s post-2014 Occupy protest climate with its new realization that Beijing probably never had any intention of allowing Hong Kong to evolve toward a more Western-style democratic form of government. In any event, official pressures now are all moving in the opposite direction. Local demands for genuine autonomy have grown accordingly.

Had Beijing confronted the contradiction early on and not allowed the misinterpretations to drift for decades, the local sense of deception and grievance might not have been so great. As it is, the number of groups and parties demanding everything from respect for Hong Kong’s local way of life, to “real” autonomy, self-determination, and on to independence have begun to sprout here in soil that has always before been inhospitable to such aims.

So local officials are trying to do what they’ve grown accustomed to doing when trapped between Hong Kong and Beijing: improvise, temporize, and fail to articulate clearly in hopes the problem will go away before they have to say or do more.

In this case: it means keep repeating the promised “one-country, two-systems” guarantees on the one hand, while trying to force Hong Kong to defer to Beijing on the other.   The instrument of attempted coercion: a new loyalty oath for candidates hoping to contest the September 4 election.

NOMINATION PLUS RE-AFFIRMATION          

Nominating procedures are well established. The basic original form, to be signed by the candidate and approved by the electoral authorities, is a 55-page bilingual document in which all the candidates’ bona fides are solemnly attested to. *

To qualify, he/she: must be 21 years of age, a Chinese citizen, permanent resident of Hong Kong, and a registered voter; must have no right-of-abode in any other country; must not be currently serving a prison sentence, mentally incompetent, or bankrupt; must never have been convicted of treason; and must not have served more than a three-month prison sentence within five years prior to the election. The candidate must also agree to uphold Hong Kong’s Basic Law and pledge allegiance to the Hong Kong Special Administrative Region (HKSAR) of China.

But then while announcing the start of the nominating period (July 16-29) for the September 4 Legislative Council (Legco) election, the Electoral Affairs Commission 【選管會】in charge of election matters sprang a surprise. Judge Barnabas Fung Wah 【馮驊】who heads the commission issued a statement explaining the new requirement that was apparently a last-minute idea since there had been no prior hint during all the pre-election preparations.

Pledging to uphold the Basic Law is no longer enough. Candidates must also solemnly swear they understand what Beijing means by it! Without prior consultation, legislation, judicial procedure, explanation, or even advice as to what will happen if they don’t: candidates must also sign a “confirmation form” (EAC press release, July 14; Ming Pao, July 15).

On this form 【確認書】candidates again agree to uphold the Basic Law, but with specific reference to Articles 1, 12, and 159(4).

Article 1 says the HKSAR is an “inalienable” part of the People’s Republic of China.

Article 12 states that the HKSAR is a local administrative region of the People’s Republic, which shall enjoy a high degree of autonomy and come directly under the Central People’s Government.

Article 159(4) says that the Basic Law cannot be amended to contravene the basic policies of China regarding Hong Kong.

Candidates are also reminded that according to election regulations, it is an offense to knowingly, or recklessly, make a false or incorrect or incomplete statement on an election related document. **

TO SIGN OR NOT TO SIGN?

Pro-Beijing and other pro-establishment candidates have no problem with the new ruling. Democrats … whether pro-, pan-, localist, or moderate … are all struggling. Some immediately said they wouldn’t mind signing the form since it wouldn’t prevent them from continuing to champion self-determination and independence. But they’re worried about the possible legal repercussions of not signing, and the possible response from voters if they do.

At a hastily-called meeting with Mr. Justice Fung on July 19, democratic Legislative Councilors failed to convince him to withdraw the new requirement. They also failed to get a straight answer from him as to the consequences of not signing … and specifically whether a prospective candidate could be barred from contesting the election for failing to sign the new pledge. Initial statements indicated it must be signed.

Democrats argued that to ban someone solely for refusing to sign would violate the Basic Law, which attaches no such supplementary conditions to membership in the council. The conditions would also amount to political censorship, political screening, and a violation of free speech … the very bed rock of Hong Kong’s core values, and so on.

In response, citing multiple provisions of the Legislative Council Ordinance and the Electoral Affairs Commission Ordinance, Judge Fung assured them that the new requirement was definitely within the bounds of legality.

He also assured them that the Returning Officers in charge of administering the election in each constituency definitely had the authority to decide whether candidates have complied with all requirements, and to decide whether nominations are valid. If only the Returning Officers actually had clear legal guidelines, which apparently do not yet exist.

In a press release issued soon after the meeting, the Election Affairs Commission added that the Returning Officers would seek legal advice if need be. ***

But in the event a nomination is declared invalid, the only recourse for the prospective candidate would be to seek a judicial review as to the legality of the disqualification. Or he/she could apply for a temporary injunction to block the decision since the election would likely be long over and done with by the time a judgement could be reached (EAC press release, July 19; Ming Pao, July 20).

Strictly speaking, the only prospective candidates to be directly troubled by this new requirement are the few … probably only one … who is a champion of outright independence. That would be Andy Chan Ho-tin of the Hong Kong National Party who says he will not sign the confirmation form. Of course, in his case the government has yet to approve his party’s registration so he is already proceeding without proper authority … although his party has so far been allowed to carry on its activities unhindered.

Additionally, however, the democratic camp as a whole is deliberating and most have now declared their intention not to comply with the new ruling.   These include all Labour Party candidates, all Civic Party candidates, Democratic Party candidates, and four young post-Occupy candidates from Demosisto, Younspiration, and Hong Kong Indigenous.

GAMBLING AGAIN ON AMBIGUITY

As if they hadn’t created enough trouble for themselves here in this way, Beijing leaders seem to be banking again on the dubious benefits of ambiguity since this latest intervention must have come from them. In any event, it is seen as an attempt to discourage “pro-independence” candidates and their supporters ahead of the September 4 election.

Zhang Xiaoming 【張曉明】, head of Beijing’s Hong Kong liaison office went out of his way to say that it wasn’t just a legal issue but a matter of principle. Independence advocates should not be allowed to propagate such ideas. Bringing those people into the Legislative Council would violate the “one country, two systems” policy, which he vowed would not be abandoned (South China Morning Post, Ta Kung Pao, July 21)

Jasper Tsang Yok-sing 【曾鈺成】, current Legco president, founding member of Hong Kong’s main pro-Beijing political party, and a long-time leader within the loyalist community, stepped out of his easy-going public persona to send an even stronger message. If a person refused to sign the new form, he said, it meant the person could not accept Hong Kong as a part of China. Such a person therefore had no business sitting in Hong Kong’s representative assembly. Either sign the form or don’t contest the election (SCMP, TKP, July 22).

Still, it’s hard to conclude that the always-in-sync Jasper Tsang doesn’t understand what all the fuss is about. Hong Kong may be an inalienable part of China, but that’s not the problem. The problem lies in the Basic Law.

Local democrats have all along been happy to sign the nomination form pledging themselves to uphold that law. It’s just that they always thought, until recently, that the Basic Law was promising them one kind of autonomy with one kind of universal suffrage elections, whereas what Beijing evidently has in mind is something else entirely: mainland-style autonomy with elections under communist party-management.

That ambiguity has never been acknowledged or clarified by Beijing and now it’s demanding reaffirmation of the same ambiguity.  One-country-two-systems forever, still without definitions.

This latest exercise is nevertheless not without sound practical purpose. Pro-Beijing politicians here have long since mastered the local art of electioneering and regularly outmaneuver idealistic pro-democracy candidates. These habitually contest not to win but just for the experience of contesting … thereby “wasting” tens-of-thousands of votes at every election. Many are once again preparing to do the same.

The logic of the new confirmation form must be to create just enough extra uncertainty and confusion … among candidates and voters … to give “safe” candidates the edge they need to win those five extra seats necessary to pass Beijing’s 8.31 political reform directive (July 11 post).

Muddling matters further is Beijing’s habit … followed by all pro-Beijing discourse on the subject … of lumping everyone in the “independence” category. So whether local activists are just harmless localists, or militant localists, or seekers of genuine universal suffrage, or worse … all are tarnished with the same independence brush.

The new form and all the publicity surrounding it are calculated to exploit that confusion … on the assumption that ordinary Hong Kong voters will not bother to distinguish one pro-democracy advocate from another … and hopefully forsake them all.

 

*  http://www.eac.gov.hk/en/legco/2016lce_candidates_form.htm

 

** http://www.eac.gov.hk/pdf/legco/2016lc/reo-n-confirmation-2016lc.pdf

 

***   For some legal opinions, http://researchblog.law.hku.hk/2016/07/hku-law-scholars-on-confirmation-form.html

 

Posted by Suzanne Pepper on July 22, 2016, titled “Loyalty Oath”

 

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