(This article was first published in Hong Kong Free Press on August 9, 2020)
Rarely has victory been transformed into defeat quite so quickly, but things move at high speed once Beijing takes charge. The watershed event was Hong Kong’s new national security law, announced in late May, and promulgated by the central government close to midnight on June, 30. The law went into effect on July 1, and from that day forward, as the unfamiliar routines of a security regime went into effect, all things political here began to change.
There have been several arrests and police have issued a “wanted” list for six Hong Kongers living in Europe and the U.S. They are wanted on suspicion of violating the new law. Past actions are not supposed to signify since the law does not apply retroactively. The suspicion is that the wanted men may have continued their illegal activities after the law was enacted
In Hong Kong, the first trial has just begun — that of a young man arrested on July First for displaying a banner that proclaimed last year’s favourite protest slogan: “Liberate Hong Kong, Revolution of Our Time.” The new law criminalizes acts of secession, subversion, terrorism, and collusion with foreigner forces. The slogan allegedly conveys secessionist intent.
How the new law’s promoters could have proclaimed — as they did throughout the month of June — that “only a very few” would be targeted is for them to explain (June 26, 2020 post).. In fact, the spirit of the new law is being felt everywhere, and nowhere more so than in preparations for Hong Kong’s next legislative election — which is impacting not just “a few” but every potential voter.
Probably one major reason for Beijing’s haste in promulgating the law was that election, originally scheduled for September 6, because it became the first major casualty of the new order. Pro-democracy forces seemed to be heading for victory and Beijing’s allies were bracing for defeat. What better solution for a problematic election that to cancel it!
In mid-July, following their unexpected success in conducting an informal pre-election straw poll – that went ahead despite the new law — Hong Kong’s pro-democracy politicians were jubilant. The exercise was held on the weekend of July 11-12, in preparation for the September 6 Legislative Council election,
Democrats’ goal for September was to win a majority in the 70-seat council or 35 seats. But so enthusiastic was the straw poll turnout that its lead spokesman, Benny Tai Yiu-ting, declared the 35+ motto should be 45+ instead!
The idea was to win a majority in order to be able to veto the government’s budget — which is the only real power the Hong Kong legislature has – and thus pressure Chief Executive Carrie Lam’s administration into accepting the demands of last year’s protest movement. These include “genuine” universal suffrage election reforms.
But before the month was out, Tai himself had been fired from his job as a law professor at the University of Hong Kong for corrupting the minds of youth and for his leading role in the 2014 universal suffrage campaign. Additionally, a dozen of the top-scoring straw poll winners had been disqualified for, among other things, violating the spirit and substance of the new National Security Law. And the September election itself had been put on hold for a year — ostensibly due to a third wave upsurge of the Covid-19 flu cases.
DREAMING OF A LEGISLATIVE MAJORITY
Long plagued by factional infighting among themselves, almost all the potential candidates aiming to contest the September 6 Legislative Council election, had agreed to join the July 11-12 poll. They also agreed to abide by its results. The aim of the crowd-funded self-organized exercise was to winnow the field of pro-democracy hopefuls in favour of those the voters seemed to prefer, and also in a way the aspiring candidates themselves would accept (July 28, 2020 post).
After the disruptions of the 1997 transition from British to Chinese rule, these elections have been held regularly every four years since 2000. But the sequence has always produced variations on the same disappointing results for democrats.
The combination of direct and indirectly elected seats, further complicated by proportional representation for those directly elected, meant an unbroken sequence of majorities for the pro-government coalition of local pro-establishment conservatives and pro-Beijing loyalists.
Pro-democracy candidates invariably won a majority of the direct popular vote, for the seats that allowed it. But those majorities were never enough to overcome the handicap created by the council’s convoluted design, plus the fragmented voting behaviour created by too many candidates chasing too few seats.
The straw poll tried to address the latter problem. The design itself had been crafted to Beijing’s specifications before 1997, written into Hong Kong’s new post-1997 Basic Law constitution, and reinforced afterward by Beijing’s ongoing amendments and decisions.
But all that past experience seemed to fade after the July 11-12 straw poll, when over 600,000 voters turned out. They recreated the experience of last November’s District Councils election when the same kind of turnout had produced an unprecedented landslide victory for democrats (Dec. 2, 2019 post).
That election was conducted in the midst of an unprecedented protest movement against the administration of Chief Executive Carrie Lam. Nor had the spirit of resistance weakened during the intervening months, despite the decline in disruptive street protests. If anything, the flu pandemic originating across the border in Wuhan seemed to have deepened the dark political mood. The sum total of events suggested that the 35+ goal might actually be within reach. But for Chief Executive Carrie lam, a constitutional crisis loomed. The Basic Law’s fail-safe design was in jeopardy.
Adding to this prognosis were the candidates themselves and the experience of last November. Their competitors would have to rely on the same kind of pro-establishment pro-Beijing candidates who had suffered one humiliating defeat after another all across the city, where they lost their majorities on all but one of Hong Kong’s 18 District Councils.
Many of the winners on July 11–12 were newly minted District Councillors from that election, which meant they were still popular with voters despite the ongoing vilification campaign that has continued in the pro-Beijing media.
As the official July 18-31 candidate registration period got underway, the ballot lists looked promising in all five of Hong Kong’s direct-election Geographic Constituencies. These are allowed to fill 35 of the council’s 70 seats.
Another five are also directly elected but must be nominated by and from among incumbent District Councillors — where democrats now hold a clear majority.
The 30 indirectly elected Functional Constituencies are pro-government territory by design. But a few democratic hopefuls had set their sights on the few winnable seats, including seven won by democrats in the last, 2016, election. That could be enough to make the dream of an overall 35-seat majority come true — assuming all went well in the Geographic Constituencies where pro-Beijing loyalists retain their strong minority voter base.
Compounding the headwinds from that quarter was the ever-present fear among democrats that their voters — still a mix of older moderate pan-democrats and younger less moderate activists — might not stand together to produce the necessary overall majority turnout
But democrats need not have worried on any score because they never had a chance to compete. Before the formal July 18-31 nomination period was over, a dozen of the top-scoring straw poll favorites had received their rejection notices.
Top of the list, of course, was Joshua Wong who had won first place in the Kowloon East Constituency, far across town from his own home district on Hong Kong Island. His disqualification was expected but that of four incumbent legislators was not.
Three are members of the Civic Party: Denis Kwok, a Functional Constituency legislator who represents the legal sector; lawyer Alvin Yeung, representing the New Territories East Geographic Constituency; and Kwok Ka-ki from New Territories West. Kenneth Leung is a Functional Constituency legislator representing the accounting profession.
Also on the DQ for disqualification list: younger generation hopefuls including former student leader, Lester Shum; activist and protest organizer Ventus Lau; journalist-turned-politician Gwyneth Ho; the Civic Party’s Cheng Tat-hung; and Tiffany Yuen.
Both Yuen and Nathan Law were at one time members of Joshua Wong’s Demostito party that disbanded in advance of the July First national security law’s promulgation. Nathan Law had originally planned to try and regain the Hong Kong Island seat he lost during the 2016 oath-taking controversy. After he took flight for London on June 30, Tiffany Yuen stood in as his Plan B back-up candidate.
What did all of these aspiring candidates have in common? Probably most important, they were all on course to win the seats they planned to contest. These disqualifications were made with surgical precision, effectively eliminating a good proportion of democrats’ top tier talent. Their second-tier candidates might have been able to do almost as well, but probably they would not have been able to inspire the same level of voter enthusiasm.
Because of their popularity, the top tier candidates also served as the best possible demonstration models, to show everyone else what the authorities expected in terms of respect for the new national security regime — and the power they could use to enforce compliance.
Unlike past elections, the vetting officials — known as retuning officers — were also all on the same page. They are civil servants from the Home Affairs Department where Beijing’s oversight is always attentive. As district-level administrative officers, they can be seconded to monitor elections as the need arises.
Unlike last November when Joshua Wong’s original vetting officer seemed to baulk at the need to disqualify him and was replaced, this time there was a uniform pre-election reshuffle with vetting officials assigned to districts other than their own. They also seem to have been well briefed because unlike last November, all focused on the same questions and all reached the same conclusions.
To oppose the national security law once promulgated — which a large group of candidates including Joshua Wong had done — was to oppose Hong Kong’s Basic Law. This was because the new law had been inserted into the Basic Law and was now an integral part of it. All government officials, including Legislative Councilors, must swear under pain of legal liability to uphold the Basic Law, meaning uphold in substance not just as a formality.
Colluding with foreigners to intervene in Hong Kong affairs is now an offense under the new national security law. Disqualified on these grounds, retroactively, were the Civic Party’s incumbent legislators who were among those traveling overseas to try and win international recognition for their struggle here.
According to Article 39 of the new national security law, it is not retroactive. This must mean individuals cannot be held legally liable for disobeying its mandates. But evidently it does not mean the spirit of the new law cannot be enforced at will. The lobbying visits to Washington all took place well before the new law’s June 30 promulgation.
Joshua Wong had hastily pledged to stop lobbying foreign governments as he had done repeatedly while the Hong Kong Human Rights and Democracy Act was moving through the U.S. Congress. Once passed, he and others had urged President Trump to sign the bill and called for sanctions against Hong Kong government officials as well. But the vetting officers were not impressed by such late-stage conversions. Opportunistic, they said, not genuine.
In the case of moderate incumbent legislator Kenneth Leung, his vetting officer acknowledged that he had not played an active role in lobbying the U.S. Congress. But he had aided and abetted others with assistance and support.
Vetting officers also did not like the pledge made by straw poll candidates to seek a legislative majority and use it to pressure Carrie Lam’s administration, even to the point of forcing her resignation. This sequence of possibilities is allowed by Article 52 of the Basic Law. But the vetting officers were not impressed by that legal technicality either (Ming Pao, Wen Wei Po, Hong Kong July 26,27; South China Morning Post, Ta Kung Pao, Apple Daily, all Hong Kong, all July 31.
THE ELECTION GONE AS WELL
The vetting officers were still signalling more to come when Chief Executive Carrie Lam decided to call time. Hong Kong’s good record in containing the coronavirus was not holding. Health officials worried that their contact tracing routines were no longer effective because too many Hong Kongers were out and about, trying to resume their normal lives.
For whatever other reasons, and who else might have been involved in the decision, Carrie Lam invoked her emergency powers on July 31, and announced the postponement of the September 6 Legislative Council election for one year.
Citing Hong Kong’s third wave of Covid-19 infections, she said there was no way of knowing what course the disease might take during the next month. Consequently, election campaigning should not continue as usual and balloting on Election Day might be problematic as well. Since it was a constitutional matter not anticipated by Hong Kong’s Basic Law, she was asking Beijing for decisions about what to do during the coming year — whether the current council could be extended, under what conditions, which councillors should be allowed to remain, and so on.
There is actually a precedent for just such a situation. In the 1990s, when Beijing refused to accept the last British governor’s electoral variations on the Basic Law’s carefully crafted designs, Chinese officials improvised by creating a separate Provisional Legislative Council that tended to the formalities until a regular election could be organized. This was held in 1998 and the new council served for a two-year term until the planned regular four-year cycle began in 2000.
Governor Patten had hoped to slip his democratic innovations in across his 1997 finish line in what had originally been planned as a “through-train” arrangement. Accordingly, the last pre-1997 colonial council would have become the first post-1997 council under Chinese rule.
The provisional body’s members were mostly local pro-Beijing loyalists and establishmentarians, similar to most Functional Constituency representatives today. These are also the people Beijing is now consulting for advice on the interim solutions.
So, who knows: instead of the democratic majority democrats were hoping for just a month ago, maybe a new-look provisional legislature will be on hand by the start of the new legislative calendar in October. Probably it will be free of all those troublesome legislators who led the legislative resistance during the term just ended. Anyway, that’s the opinion of those Beijing is currently consulting here.
For their part, officials have taken to citing the advice then paramount leader Deng Xiaoping gave to Basic Law drafters in the 1980s. He said that after all was said and done, Hong Kong’s new post-1997 government should be led mainly by patriots. Popular representation does not signify.
Posted by Suzanne Pepper on August 10, 2020