Posted:  Nov. 30, 2016

 

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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