Further on that favorite question everyone was asking last July when Hong Kong was celebrating the 20th anniversary of its return to Chinese rule: the question was whether people should be optimistic or pessimistic about the future and what the next 20 years might bring. At the time, just six months ago, it was still possible to say “neither optimistic nor pessimistic.” It could go either way, depending on the sovereign’s decisions and Hong Kong’s responses (Aug. 1, 2017 post).
The question was not about the economics of Hong Kong-mainland relations, but their political dimensions and specifically the rift that has developed about how they should evolve over time. Chinese leaders in Beijing had made certain promises about Hong Kong’s post-1997 political security and development, and Hong Kongers had been acting on what they thought those promises meant. The promises had been written into Hong Kong’s Basic Law constitution, promulgated by Beijing to serve as Hong Kong’s governing constitution for at least the first 50 years after Hong Kong’s 1997 transfer from British to Chinese rule.
The promises … for autonomy, judicial independence, and universal suffrage elections among much else … had inspired a democracy movement that began with next to nothing in the 1980s and has continued ever since. But after decades of trial and error, Beijing’s promises and the Hong Kong expectations they encouraged were increasingly at odds: lots of turbulence and dead ends but little to show considering the time and effort involved.
Still, reasons for optimism followed from experience. Local political leaders and increasing numbers of the general public had been energized by official moves to enact national security legislation, and political studies for all students, and mainland-style officially-managed elections … so much so that those official efforts had been shelved. They were all of a kind, all aimed at pressuring Hong Kong in ways that would gradually transform it, politically. into “just another mainland city.” But popular movements were such that Hong Kongers had learned they could push back and keep the most feared aspects of Beijing-led mainland rule at bay. In the process, they had also managed to discredit and delegitimize all three of Hong Kong’s Beijing-selected Chief Executives.
So it was possible to conclude six months ago that the same sequence of mainland-led pressure and popular Hong Kong resistance could continue. If persistent enough and allowed to continue long enough, the sequence might even succeed in convincing Beijing decision-makers to modify their various projects aimed at recasting Hong Kong in a mainland mold. And such modifications might still, eventually, come to pass.
But the net result for 2017 is all in the opposite direction and pessimism is the order of the day for all democracy movement sympathizers. The reasons for this conclusion are threefold: three major trends that have intensified and converged during the past six months, all with institutional underpinnings that will make them difficult to modify or reverse. They concern Hong Kong’s judiciary, its legislature, and Beijing’s new political construct on Hong Kong’s future that has just been carved in stone by being added to the Chinese Communist Party’s constitution.
Accordingly, the judiciary is being used to pursue Beijing’s political agenda here. In this way, via the courts, the already limited leverage in Hong Kong’s legislature provided by those who represent close to 60% of registered voters has been further weakened. The next generation of those voters’ political representatives has been effectively sidelined as well. And Beijing’s new constitutional construct neuters the original promises about Hong Kong autonomy by defining them explicitly as residual local administrative powers enjoyed at Beijing’s discretion.
REVIEW: COURT JUDGEMENTS, POLITICAL CONSEQUENCES
The year began on an energetic note. Divergence between Beijing’s original promises and Hong Kong’s expectations had steadily widened in the wake of the big 2014 push for universal suffrage elections that produced the 79-day Occupy street blockades but not the desired open, free, and fair elections. Contrary to widespread expectations, however, the Occupy generation had done quite well in a series of electoral contests that followed.
Two successful candidates from that generation had pushed their defiance a step too far by initially refusing to pledge allegiance to the central government during the Legislative Council’s oath-taking ceremony in October 2016. They used vulgar language with reference to the central government and pledged allegiance to Hong Kong alone. Beijing stepped in on November 7, with an Interpretation of the relevant Basic Law article on oath-taking and the two were disqualified as a result. Oaths-of-office, decreed Beijing, must be taken seriously and solemnly, word-for-word and with demeanor to match. But in early 2017, their cases were still being appealed and there was a chance they might be reinstated. The oath-taking saga had nevertheless begun. (Nov. 14, 2016 post).
The two legislators-elect were: Sixtus Baggio LEUNG Chung-hang 【梁頌恆】, elected from New Territories East, and Yau Wai-ching 【游蕙 禎】from Kowloon West. Both were members of the new post-Occupy political group Youngspiration 【青年新政】.
What spurred the defiant mood on January 1, 2017, however, was a follow up move that had just been announced by the Hong Kong government’s Justice Department. The aim was to try and disqualify four additional Legislative Councilors. Beijing officials had actually identified a total of 15 culprits but the Hong Kong government chose to make an example of only four. They had embellished their oaths but had done so in ways that were always acceptable before Beijing’s November 7, 2016 Interpretation of Hong Kong’s Basic Law Article 104.
Since the four were being charged not only selectively but also retroactively … and since the four had actually been sworn in under long-standing rules that tolerated such oath-taking … so hopes were high that the four were being prosecuted for demonstration effect but would not actually be disqualified. Retroactive punishments are an uncommon practice in common-law jurisdictions of the kind Hong Kong inherited from the British.
The four were: LAU Siu-lai, 【 劉小麗】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 one old-timer, “Long Hair“ LEUNG Kwok-hung 【梁國雄】, representing New Territories East.
The New Year’s Day protest march was billed as a fund-raiser to help cover the exorbitant Hong Kong court costs. Some HK$1.4 million was raised toward that end. High-point of the march was the energetic presence of the three original Occupy Central co-founders: Professors Benny Tai and Chan Kin-man plus Reverend Chu Yiu-ming. Past disappointments and future fears were nowhere to be seen that day as the three distinguished gentlemen swung to the beat of gospel music at the main collection point and seemed determined to greet everyone in the crowd passing by (Jan. 4， 2017 post).
Alas, the upbeat mood was not to last. All the appeals court judgements for the first two disqualified legislators were going against them, although they were granted the privilege of one last hearing by Hong Kong’s Court of Final Appeal, scheduled for late August. But one reason for the escalating downward slide during the latter half of the year was probably a simple matter of court date scheduling in deference to the grand official celebrations laid on for Hong Kong’s 20th July First anniversary. The storm clouds reappeared within days afterward. A series of court judgements were handed down in July and August, all with important political ramifications.
On July 14, Judge Thomas Au handed down a ruling that disqualified all four legislators in the “second batch.” Chinese-language newspapers began using the English alphabet abbreviation DQ just to save space in all the news stories that followed.
Oaths that had been taken and retaken and accepted by the presiding Legislative Council (LegCo) officers in October, 2016, following past precedent … and allowing the legislators to remain in office for the intervening nine months … were retroactively declared invalid. No second chances, according to Beijing’s interpretation of Article 104, as interpreted by Judge Au.
Several other legislators had also embellished their oaths in identical fashion, some even more politically incorrect. Judge Au’s reasoning for the selective prosecution of these four was a masterpiece of judicial obfuscation (July 20, 2017 post). Calculating the official motive for selectively vacating those particular seats in terms of the constituency competition to refill them with pro-establishment candidates would have made more sense.
In late November, the four received an additional blow: the Legislative Council was demanding the return of their salaries and expenses for the nine months during which they had served as legislators. The cumulative sum amounts to something like HK$ 6 million, much of it already spent since it included office expenditure and staff salaries (South China Morning Post, Nov. 28).
Two of the four are appealing their disqualification; two can’t afford the expense. How to handle LegCo’s demand for payment is being discussed. Declaring bankruptcy is one option in which case the individuals will be barred from contesting another Legislative Council election for five years. The first two DQ legislators are in similar difficulty, but the sums they must repay are less since they were only just moving into their new LegCo offices when the oath-taking saga began.
On August 17, Hong Kong judges had handed down another controversial ruling, the one that made international headlines. Three young men had tried to storm a closed-off area at the Legislative Council complex in September 2014 during the electoral reform controversy. Their actions precipitated the Occupy street blockades that began at that site two days later, on September 28.
They had already been tried and sentenced by a sympathetic judge who cited their youthful idealism in mitigation before sentencing. But Hong Kong’s Justice Department challenged the community service and suspended sentences and another hearing gave the government what it wanted: prison terms for all three. Sentencing guidelines had evidently been strengthened after Beijing’s November 7 oath-taking Interpretation and the rhetorical fusillades that followed because heavier sentences for disruptive political activism began being imposed soon afterward (Aug. 24 post).
In the case of the three young Occupy “sparks,” as they were called, the sentences exceeded three months, thereby barring them from contesting Legislative Council elections for five years. One of the three, Nathan Law, was Hong Kong’s youngest ever legislator until his selective disqualification in July for embellishing his oath. He is one of the four legislators in the “second batch” to be disqualified. Joshua Wong has been hailed as Hong Kong’s most precocious young political talent since he led the 2011-12 campaign against the proposed compulsory political education curriculum.
Both Law and Wong have now been effectively removed for five years from the political lives they were planning. Wong had been preparing to run for a council seat in 2020 since he was too young in 2016. Ironically, the three young men are also among the least “radical” leaders of the new post-Occupy generation since they have not jumped on the pro-independence anti-mainlander bandwagon.
The August 25 Court of Final Appeal hearing in the case of the first two DQ legislators, Baggio Leung and Yau Wai-ching, ended like all that had preceded it. The three-judge panel chose not to explain why they were handing down retroactive judgements for actions committed, in October 2016, before Beijing’s November Interpretation had been issued. Nor had there been any dissenting opinions at any point along the way.
This judicial acquiescence has probably done more than anything else to demoralize Hong Kong’s democracy movement by undermining confidence in judicial independence. Throughout the course of the appeal hearings, the community heard the judicial message articulated repeatedly, with reference to Beijing’s all-important November 7 Interpretation of the Basic Law’s article on oath-taking. The judges held that when the National People’s Congress Standing Committee (NPCSC) issues such an Interpretation, not only are Hong Kong’s courts “bound to obey.” The Interpretation is also “what the law has always been” dating back to July 1, 1997.
Yet defense counsels had raised the question of retrospective enforcement throughout the appeals process. They insist that “no one knew” the retrospective principle would not signify in the oath-taking DQ cases. Yet there has still been no explanation from the Justice Department or any legal authority in Beijing as to the reasoning behind the judgements.
The public has simply been told the judgements must be accepted as legitimate by reason of the court’s decision. This has led by inference to the conclusion that Hong Kong can no longer rely on the pillars of protection that the Basic Law was initially thought to provide. All the promises written into the Basic Law can be erased by Interpretations from Beijing, which then automatically become … in the words not of Beijing but of Hong Kong’s judges ruling retroactively … “what the Basic Law has always been” dating back to Day One.
As to how these judgements have been reached, the only explanation so far comes from one well-informed anonymous source. He says that Hong Kong’s Court of Final Appeal applies the common law principle on interpretation of laws, namely, that the interpretation of laws does have retrospective effect, contrary to the more widely known aversion to retroactive enforcement. The Hong Kong courts are using that same approach in their reading of NPCSC Interpretations (Sept. 6, 2017 post).
The questions nevertheless remain: how can it be that until now “no one knew,” and no one has explained? Also unclear is whether that was Beijing’s original intent, or whether Hong Kong’s judges are imposing a retroactive application of Beijing’s Basic Law Interpretations that Beijing did not mandate.
In addition to the sobering realization that all the Basic Law’s promises can be circumscribed in this way, the net political effect … of the six Legislative Councilors’ disqualification, and their potential bankruptcy, plus the resentencing cases … has been to remove from active political participation a selection of the new post-Occupy generation’s most promising political talents.
But there was much more to come. Beijing officials finally stepped forward to explain something more significant than the retroactive interpretation of individual Basic Law articles. Beijing in effect interpreted the Basic Law itself and, whether retroactive or not, this is probably what the Basic Law has always meant … at least in Beijing’s eyes. If so, the document should be appreciated, in retrospect, not as a guarantor of Hong Kong’s autonomy but as a means of achieving the central govrnment’s takeover of Hong Kong and its absorption into the national mainstream.
These conclusions followed from the week-long 19th Congress of the Chinese Communist Party (CCP), which met in October. In his keynote address to the Congress, President Xi Jinping introduced his new political construct with its plans for China’s future. To be known henceforth as the Thoughts of Xi Jinping, they were appended to the party’s constitution by the 19th congress giving them added weight and significance.
The emphasis on Hong Kong was unusual for such an event but Xi’s words were meant to impress upon all concerned the correct understanding both of the CCP’s overriding leadership authority and Hong Kong’s subordination thereto. He used the controversial term “comprehensive jurisdiction” to describe the central government’s role, meant to emphasize that Hong Kong enjoys only as much autonomy as Beijing is willing to grant. He also used new words like “melding” and “organic integration” to describe Hong Kong’s evolving role in the nation’s development (Oct. 23 post).
Officials soon arrived from Beijing to explain and reinforce the unfamiliar message and terminology. No one had ever heard about Hong Kong’s melding and organic integration before. The presentation by Basic Law authority Li Fei was the most straightforward. He addressed directly the apparent contradiction between the central government’s comprehensive jurisdiction and Hong Kong’s autonomy, which Xi said would remian intact. According to Li’s explanation, what Xi meant was that the central government jointly governs Hong Kong along with its own local government. Beijing exercises direct control over important matters. Local autonomy is confined to local affairs. These remain the responsibly of local officials, as delegated by Beijing (Nov. 30 post).
Everything came together in the last act of the year. The oath-taking saga, court judgements, legislators’ disqualification … all played a part in democrats’ doomed bid to save what they called their last line of defense and last remaining weapon: the Legislative Council’s Rules of Procedure. To make sense of this intricate power play, it pays to remember the council’s unusual design.
Hong Kong’s legislature features a simulated “two house” arrangement with 35 directly-elected legislators and 35 indirectly-elected by various occupational categories. These latter are known as Functional Constituencies (FCs), although five are chosen in a mixed way … via a selective nomination process followed by direct election.
The 35 directly-elected legislators are chosen from five separate constituencies. Votes are allocated by proportional representation within each of the five constituencies. The five selectively nominated in the FC category are then elected via a single territory-wide constituency. But these five are still counted along with the original FCs on their side of the ledger.
The separate ledgers are important because within the council itself, the bicameral design is enforced by separate voting. Anything initiated from the floor, by legislators themselves, requires majorities of those present in each “house,” counted separately.*
Legislators cannot initiate legislation without government consent. But they can amend government bills. They must also scrutinize and approve government funding requests, which is the only real power they enjoy. Government bills and motions need majorities from the council voting as a whole; the bicameral rule does not apply
The aim of this convoluted design, according to those familiar with Beijing’s thinking in the late 1980s when the design was being written into the Basic Law, is to prevent any one party from gaining control of the legislature. In that the drafters have surely succeeded.
In the last, 2016, election, a handful of new-style post-Occupy democrats were elected among 30 pro-democracy legislators overall. Close to half the council but not quite. Half would count for something when the council votes as a whole. But given the spliced and diced nature of the design, democrats are at a perpetual disadvantage … unless many pro-establishment legislators are not present, which is often the case given the range of their more interesting and lucrative pursuits.
Pro-establishment legislators represent mostly the pro-Beijing loyalist community plus conservative business and professional interests. The FCs were designed to accommodate and placate these two, loyalist and conservative, orientations where opposition to direct elections was greatest back in the 1980s when the Basic Law’s designs were being drafted.
Before disqualification, 19 of the 35 directly-elected legislators were democrats. Of the 35 FC legislators, 11 were democrats including eight conventional FC representatives and three representing the “super seats” (directly elected by all voters, after selective nomination). The nominations are made by members of Hong Kong’s 18 local District Councills which are dominated by loyalists and their conservative allies.
Of the six DQ legislators, five were directly-elected; only one was a FC representative. After disqualification, only 14 democrats remained on the 35-seat directly-elected side of the isle.
In recent years, democrats have grown increasingly frustrated over the lack of progress on electoral reform. Frustrations are compounded by the fact that close to 60% of voters who cast ballots in the direct-election constituencies vote for pro-democracy candidates. In this environment, lacking the representation they think is their due, some democrats sometimes behave badly. “Long Hair’ Leung Kwok-hung took the lead in that respect. As a whole, they do not always conform to what their conservative colleagues like to call “normal” parliamentary behavior.
Democrats have also exploited the Rules of Procedure by engaging in long-running filibusters and other delaying tactics. These efforts were given impetus, in 2012, by the drive and debating skills of former legislator Raymond “Mad Dog” Wong Yuk-man when he was defending his resignation/referendum ploy to mobilize support for electoral reform.
Parliamentary decorum has continued its downward slide since then and as soon as the additional four legislators were disqualified last July, conservatives hailed it as a “golden opportunity” requiring swift action (South China Morning Post, July 21, 24, 28; China Daily, Aug. 7, 11; Wen Wei Po, July 28).
Whether the government deliberately strategized the selective disqualifications and used the judiciary with this aim in mind will probably never be known. But once the pro-democracy caucus was down by six, five of whom were in the directly-elected half of the chamber, conservatives saw their chance and ran with it.
The initial idea was to amend the rules in the Finance Committee alone where democrats’ delaying tactics had held up several government funding requests. During the 2015-16 legislative year, democrats had demanded close to 600 quorum calls with the quorum bell sounding loudly throughout the office building for a full 15 minutes after each call. It’s not our fault, said democrats, if conservative legislators can’t trouble themselves to attend meetings.
After the July disqualifications, democrats vowed to keep up the pressure in hopes the government would reinstate their colleagues. Conservatives spent the summer recess thinking other thoughts and returned in the fall with more ambitious ideas. They had devised a comprehensive plan of action intended to reform the Rules of Procedure for LegCo as a whole and were ready by early December. Since the measures came from the floor, from legislators themselves, the vote had to be bicameral, with democrats having just lost their majority in the directly-elected half of the chamber.
They argued that it was unfair to take advantage of their plight and vowed to fight on. They hoped to sustain their delaying tactics until March 11, when a special election has been scheduled to replace four of the six DQ legislators. Two others are awaiting the outcome of their court appeals. Conservatives said it wasn’t their fault if democrats had bungled their oath-taking and got themselves disqualified.
Democrats staged many scenes inside the chamber. Outside, the police barricades and protest tents went up. The scene was briefly reminiscent of Occupy 2014, but time was too short to mobilize a similar kind of mass campaign. Pro-establishment legislators stayed in their seats for once, and pro-establishment LegCo president Andrew Leung did the rest, pushing through their parliamentary battle plan with unaccustomed dispatch. All the democrats’ delaying motions were defeated and it was all over by mid-December.
Billed by both sides as the “battle to end all battles,” the rule changes aim to limit the number of quorum calls; shorten the length of time the quorum bell rings; limit lengthy speeches; reduce the size of a quorum for some committee meetings from 35 to 20; and increase from 20 to 35 the number of legislators needed to petition in order to create select committees for investigating suspected official wrong-doing. The changes thus further restrict the already limited power of the legislature and its pro-democracy contingent to monitor the government and serve as a check on officials, their behavior, and their policies.
The clincher came on December 15, with the final votes democrats could not win because their directly-elected pro-democracy caucus was minus five of its members. All their attempts to amend the proposed changes were “negatived.”
Vote totals calculated for LegCo as a whole on the final rule book amendments: 38 in favor; 11 opposed; 1 abstention; 13 non-voting with several democrats having been expelled from the chamber for disruptive behavior (Ming Pao, Dec. 16). The bicameral count: FCs, with 29 present: 22 in favor, 5 opposed, 1 abstention; Directly Elected with only 22 present: 16 in favor; 6 opposed (TsingTao, Dec. 16).**
The next step, say conservatives, is to exploit the opportunity created by the reformed Rules of Procedure to push through the biggest prize of all, namely, the long delayed National Security Bill, mandated by Article 23 of the Basic Law. It was shelved after the massive 2003 protest. They see it as the only way to end the new seditious talk about independence once and for all.
* According to Rule 46(2) of the Rules of Procedure, the passage of a motion or an amendement to any motion introduced by a Member shall require a majority vote of each of the following two groups of Members present – (a) Members returned by functional constituencies and (b) Members returned by geographical constituencies through direct election.
Posted by Suzanne Pepper on December 28, 2017.