Considering the course of events since Hong Kong’s last, 2016, Legislative Council election, it seems almost as though the pro-establishment majority would breathe a collective sigh of relief if they could turn the clock back to colonial days … to sometime before the mid-1980s. That was when the colonial government belatedly began experimenting with electoral reform over the vociferous objections of Hong Kong’s reigning tycoon class.
Hong Kong’s Legislative Council (LegCo) then was an anachronistic holdover from the golden age of empire when councilors were all appointed by the governor. These gentlemen were themselves always appointed by London and always saw to it that their selections for LegCo were “safe” … the right sort of people who could be counted on to do the right sort of thing and vote accordingly.
The scene today is very different, but Hong Kong’s government still bears many marks of its colonial predecessor and executive presumptions are as they have always been. The pro-establishment majority is currently on the offensive, using all means at its disposal to try and force opposition members into line.
THE BASICS, Re-Cap
“Pro-establishment” signifies those who stand with the executive. They include some old-fashioned pro-business conservatives bolstered now by the discipline and drive of pro-Beijing political loyalists. The “opposition” is the government’s designation for all those who have evolved from what was initially the liberal majority. That was back in the 1990s, when the British finally permitted partisan politicking to take hold.
Liberals were immediately rechristened the opposition after Hong Kong’s 1997 return to Chinese rule and so they have remained ever since. Today they are the politicians and activists of various pro-democracy inclinations who receive a majority of the direct popular vote, where it is allowed. But they can never win a majority of the seats in LegCo.
The pro-democracy opposition can never succeed in that quest because the post-1997 legislature was deliberately designed to prevent it. The design was intended to serve the needs of what its Beijing drafters call “executive-led” government, the successor to pre-1997 colonial rule. This means: 35 of LegCo’s 70 seats are filled via direct election from the Geographic Constituencies, further fragmented by proportional representation; 30 seats are filled by indirect election from special-interest sectors known as Functional Constituencies; an additional five are filled by a combination of indirect candidate nomination followed by direct popular election.
Internally, LegCo operates as a “two-house” structure meaning 35 seats in each house: 35 directly-elected and 35 dominated by the indirect election format (30 Functional Constituency seats plus the five hybrids). Government bills are voted on by LegCo as a whole. But initiatives from the floor require majority votes from each house, counted separately. Legislators cannot initiate bills on their own without government permission.
Drafters acknowledged that the convoluted mix of direct and indirectly-elected legislators, divided into the bifurcated two-house structure, was meant not just to provide checks and balances but especially to prevent any one party from gaining a predominate position. In this, the design has proved its worth many times over. But even so, sometimes all the built-in constraints fail to produce the desired effect. The 2016 Legislative Council election was such a time.
2016: THE POST-OCCUPY EFFECT
The September 2016 election was the first held after Hong Kong’s 2014 consciousness-raising Occupy Movement. Many younger candidates were among those who had been politicized during the 2014 agitation for universal suffrage elections. That goal itself was not new. It had been pursued since the 1980s and promised by Beijing, even written into Hong Kong ‘s new post-1997 Basic Law constitution.
The campaign erupted into Occupy … with the city’s key roadways blockaded for 79 days … after an abortive consultation exercise run by the Hong Kong government. The exercise raised hopes only to see them unexpectedly dashed when all of Hong Kong’s popular suggestions for electoral reform were summarily ignored … not even considered or debated … by Beijing officials. Only then did the concerned public finally realize that Beijing officials meant what they said at a crucial juncture back in 2004, when they reserved specifically to themselves the power to make all decisions concerning Hong Kong political reforms.
Disappointed but still determined after the street blockades came down, many young activists decided to try their luck at the polls with a variety of new ideas and platforms. They were called by different names: localism, autonomy, self-determination, even independence.
But in one way or another, all were demanding a reaffirmation of the promises Beijing had made, first to the British on Hong Kong’s behalf, and then in written form to the people of Hong Kong themselves. They were promised via Hong Kong’s new post-1997 Basic Law constitution: a “high degree of autonomy,” and universal suffrage elections, plus all the basic rights and freedoms.
Additionally, besides the younger post-Occupy candidates, all the older pro-democracy parties moved in the new more defiant direction. This they did by writing varying ill-defined demands for “self-determination” into their platforms.
Voters also responded. Despite all the official polemics intended to discredit, demoralize, and discourage, the new candidates did better than most everyone expected. Turnout in 2016 was 58% of all registered voters … the highest ever recorded since direct one-person, one-vote universal suffrage elections made their hesitant local-level debut in the 1980s. The new 2016 LegCo line-up had 30 pro-democracy legislators overall. That included 19 … a bare majority … in the directly-elected house; plus 11 in the mixed-format house (Sept. 8, 2016 post).
Of the 30, a handful represented the most defiant among the new post-Occupy-generation. Another handful of aspiring candidates had already been disqualified by election officials citing the strict new criteria meant to weed out radicals. The new criteria were introduced via a confirmation procedure ahead of the 2016 election (Aug. 3, 2016 post).
But many of those elected slipped through the filtering net since several professed sentiments similar to those already disqualified during the candidate certification phase. In fact, the entire caucus reflected the new post-Occupy drift toward the goal of what they called for want of a better label in their platform statements: self-determination. From all that was said, it seemed to mean primarily a common denominator of understanding about what liberal Hong Kongers initially thought they were being promised by their new post-1997 Basic Law constitution.
UNDOING THE RESULTS OF THE 2016 ELECTION
The confrontation began on Day One of the new LegCo term and has continued ever since. As a result of the defiant embellishments added to their oaths-of-office during the swearing-in ceremony on October 12, 2016, six pro-democracy legislators have already been disqualified and expelled from LegCo for conduct retroactively deemed to be in violation of political propriety. (July 20, 2017 post).
The new standards were mandated by Beijing … the National People’s Congress Standing Committee (NPCSC) … in its Interpretation of Hong Kong’s Basic Law Article 104 on oath-taking. Beijing reminded Hong Kong legislators that their oaths-of-office must be taken word-for-word, no ad libbing. The pledge must be to the People’s Republic of China and to Hong Kong as part of China, as spelled out in Hong Kong’s Basic Law constitution. Failure would mean immediate disqualification with no second chances.
Standards for popular vigilante oversight were updated as well. According to that November 7, 2016 NPCSC 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” (Nov. 14, 2016 post). Legislators must be seen by all to behave accordingly and pro-Beijing loyalists have taken the new mandate to heart performing their citizen’s duty at every perceived lapse.
Hong Kong judges ruled that since the NPCSC Interpretation related to Hong Kong law, specifically the Basic Law, that meant the Interpretation became “what the law has always been” dating back to July 1, 1997, when it came into effect. Hence their insistence on disqualifying the six legislators, retroactively, for oaths they took before Beijing’s Interpretation was issued (Sept. 6, 2017 post).
Patriotic activists have taken their cue from this new mandate for political correctness and Hong Kong’s pro-Beijing media is doing its part by assigning teams of journalists to photograph and publicize every misstep. They are a new addition to Hong Kong’s political scene: the patriotic paparazzi.
Seizing the opportunity presented by the absence of the six expelled pro-democracy legislators before special by-elections could be held to replace them, pro-establishment legislators also struck back. With Chief Executive Carrie Lam’s blessing, they rammed through changes to the Legislative Council’s rules on filibustering. Pro-democracy legislators called those rules their last remaining line of defense. But they no longer had enough votes in their half of LegCo to beat back the challenge and block the rule change (Dec. 28, 2017 post).
Besides the six legislators who featured in the oath-taking saga, several others have been flagged for violating Hong Kong’s increasingly strict standards of political propriety. Of these, three have come under special scrutiny. Of the three Ted Hui Chi-fung 【許智峰】 is now in greatest jeopardy … for allowing his adversarial instincts to get the better of common sense. He seems certain to become the seventh legislator to lose a seat won in 2016.
The other two are: Cheng Chung-tai【 鄭松泰】 and Au Nok-hin 【區諾軒】. Cheng is still being pursued in an on-going patriotic vendetta stemming from his one-man impromptu protest gesture at the start of the oath-taking controversy in October 2016. Au Nok-hin is one of the March 11, 2018 by-election winners. He is being targeted by patriotic vigilantes for a 2016 protest act whereby he allegedly disrespected Hong Kong’s Basic Law constitution by burning a photocopy of one of its pages.
Ted Hui is not a typical Democratic Party member. They’re all mostly moderate mainstream, whatever they might have been in their youth. Past chairwoman, Emily Lau Wai-hing is a good example of how one-time radicals can turn over new leaves as they move into middle age and on into the moderate mainstream of pro-democracy politics.
As a young District Councilor on Hong Kong Island, Ted Hui had some noteworthy activist episodes to his credit and seemed an unlikely Democratic Party choice to fill the LegCo seat it had long held on Hong Kong Island. But the party invested much time and effort in his 2016 campaign and he ultimately prevailed.
Now in his mid-30s and a lawyer by training, he nevertheless succumbed to an impulsive urge when on April 24, he spied a government official with mobile phone in hand. She was recording the movements of legislators in and out of the chamber where the government of Chief Executive Carrie Lam is focused on pushing her program through the session during its final weeks of tension-filled debate (Ming Pao, April 28).
Most urgent for the government is winning LegCo’s stamp of approval for the controversial cross-border high-speed rail link. The main issue is Beijing’s insistence that mainland immigration and customs officials must be stationed within the Hong Kong terminus. They will be enforcing relevant mainland laws in a separate designated area of the station. This arrangement is in direct violation of Article 18 of Hong Kong’s Basic Law that was included to set Hong Kong hearts at ease before 1997. Article 18 states that “national laws shall not be applied in Hong Kong” (Jan. 10, 2018 post).
Given their weakened position, pro-democracy legislators know they don’t have the votes to block the project and even their ability to filibuster has been seriously weakened. The officer was evidently performing a whip function, supposedly the responsibility of legislators themselves. The government’s aim is to try and ensure that a quorum would always be present, thereby preempting one of democrats’ few remaining defensive maneuvers … the quorum-count stall.
But instead of confronting the officer or otherwise protesting her actions, Hui snatched her phone and ran into the men’s room where he proceeded to examine the record of her entries. These showed that she was monitoring legislators’ whereabouts.
Before lapsing into silence, Hui asked the government for an explanation as to why the government’s use of its staff to follow legislators around like paparazzi was not at least a violation of the privacy ordinance (HK Free Press, May 4).
Explosions erupted immediately not least from among his own party mates. Former Democratic Party chair, Emily Lau, said such a person did not deserve to be a legislator. Ronny Tong, ex-Civic Party leader now speaking for the other side, said Hui had actually committed multiple crimes.
But most vociferous of all was Regina Ip Lau Suk-yee, who has re-emerged into something like her old enforcer’s role. As Secretary for Security back in 2003, she led the government’s campaign to force passage of the Article 23 national security legislation and her caustic comments probably did more than anything else to provoke the angry public uprising against it.
Ip is now a democratically-elected legislator, leader of her own small political party, a member of Carrie Lam’s Executive Council cabinet, and as chair of the Bills Committee, a chief player in Carrie Lam’s drive to crack the whip over what remains of LegCo’s pro-democracy caucus.
Ted Hui’s memberships in both LegCo and the Democratic Party were immediately suspended pending an investigation, after which the police were called in. Hui was arrested, bailed, and charged on suspicion of committing four criminal offenses that can carry a prison term of up to five years. The offenses: common assault, dishonest access to a computer, criminal damage, and obstructing a public officer at work. Anything more than a one-month jail term will automatically cost him his LegCo seat.
Still not satisfied, pro-establishment legislators with Regina Ip in the lead will table a censure motion later this month. Their aim is Hui’s permanent disqualification. This would require a two-thirds majority LegCo vote to succeed. But this vote would be taken by the council as a whole where the 42 pro-establishment members themselves constitute close to the necessary two-thirds majority and democrats had generally condemned his folly (SCMP: April 28, May 8).
The idea is to administer a double dose of disqualification, by the courts and by LegCo, to teach democrats yet another lesson. Nor is Ted Hui alone. There is another censure motion waiting in the wings.
The target is Cheng Chung-tai, elected from New Territories West in 2016, and currently the sole representative in LegCo of a small pre-Occupy party called Civic Passion. Perhaps because of the example he has set, pro-Beijing enthusiasts now seem less inclined to encourage Hong Kong’s young people to visit the Motherland and see things first hand.
Cheng Chung-tai has been there and done that and holds an advanced degree from Peking University. But since then he has evolved into a committed Hong Kong localist … and now more so than ever.
He committed his “crime” a week after the initial swearing-in fiasco on October 12, 2016. The offending legislators-elect had initially been told they could re-take their oaths and were preparing to do so at the October 19 meeting, whereupon pro-establishment legislators vacated the chamber to prevent the necessary quorum from forming.
Cheng idled the time away that day by moving along the rows of empty seats and upending the small Chinese and Hong Kong flags that legislators had placed in desk holders to demonstrate their patriotism (Apr. 19, 2017 post).
One of those legislators reported Cheng’s action to the police. He was arrested, charged with flag desecration, tried, and found guilty. The judge let him off with a fine, so Cheng was able to keep his LegCo seat. But that was not the end of his troubles because there is now a censure motion pending in LegCo against him as well (April 12: SCMP, Ming Pao, Wen Wei Pao).
This may or may not succeed since in Cheng’s case, unlike that of Ted Hui, democrats are standing behind him. But if only a handful break ranks and the motion passes, he will be without any source of income.
Cheng moonlights as a part-time lecturer at Hong Kong Polytechnic University. Complaints were registered against him for conduct unbecoming a faculty member by a loyalist member of the university’s governing council. Cheng was told his conduct and convictions were incompatible with those of the university and his contract for the coming academic year has not been renewed.*
Loyalists are still looking for ways to disqualify and unseat Au Nok-hin. He was elected in the March 11 by-election to fill the HK Island seat vacated by Nathan Law who was one of the six legislators disqualified for improvising their oaths at the 2016 swearing-in ceremony. A voter’s request for a judicial review was immediately filed against Au and the returning officer who approved his candidacy.
He had been photographed burning a photocopy of one page of the Basic Law, at the height of the oath-taking controversy in 2016. The photograph was used by his opponent, Judy Chan who is a protégé of Regina Ip, to challenge his patriotic qualifications on grounds of disrespect for the Basic Law. The pro-Beijing media had urged voters to begin disqualification proceedings immediately if he was elected (Mar. 14, 2018 post).
The voter’s request was dismissed on technical grounds, for following the wrong procedures, although the court invited the concerned parties to try again using the correct ones (Ming Pao, Apple, Mar. 30; Wen Wei Po, Mar. 31). They might still do so. But in the meantime, Au Nok-hin was duly sworn in after reciting the oath without mishap. Except that Regina Ip was not present in the chamber to hear it.
She rose from her seat to chant “shameful to burn the Basic Law,” and then walked out. Ip later said she was unwilling to witness a false oath-taking, that is, Au swearing to uphold Hong Kong’s Basic Law after he had demonstrated his disrespect by the symbolic public protest burning of one of its pages (Ta Kung Pao, Wen Wei Po, March 22). .
- UPDATE: The censure motion failed to pass. It would have required a two-thirds majority of all legislators present. But in the May 17 vote, 24 pro-democracy legislators were against as was one non-aligned legislator, with 39 pro-government legislators in favor of the motion to censure. Among the most eager to keep up patriotic appearances was Priscilla Leung, who headed LegCo’s investigation committee on the matter. She explained that Cheng Chung-tai had humiliated the national flag. The censure motion was therefore pursued in order to make an example of his conduct and demonstrate clearly to the public how not to behave (SCMP, May 18).
Posted by Suzanne Pepper on May 11, 2018.