Opinion Politics & Protest

Keeping independence candidates out of election is incompatible with freedom of speech

In 1593 Henry IV of France effectively ended the French Wars of Religion by becoming a Catholic. Historians are not sure that he actually said “Paris is well worth a Mass.” But the quote embodies the general assumption that Henry, who had the best claim to the throne but was opposed by many aristocrats on religious grounds because he was a Protestant, did not change his official faith for theological reasons. However, the conversion was not examined too closely and Henry had a successful reign until assassinated by a Catholic terrorist in 1610. His contemporary Elizabeth I of England, who also inherited a country divided by religion, soothed anxieties on this score by saying that she had “no desire to make windows into men’s souls.” Returning officers in Hong Kong, it seems, are expected to be more ambitious.

The defining feature of the Leung administration is not its policies, which in some ways are better than those pursued by previous teams, but the casual way in which it demolishes and discredits pieces of what you might call the civic infrastructure. Institutions like the police and the ICAC are politicised and subverted, councils and consultative bodies are politicised and perverted, and ordinary democratic habits are abandoned without notice or regret. Now we are losing the idea that an election is a public event conducted under clearly understood rules in which anyone who follows those rules can play.

Pan-democrats

Pan-democrats holding signs saying they refuse to sign a declaration vowing to uphold three clauses of the Basic Law. Photo: Facebook/Dennis Kwok.

This started with the announcement, two days before the nomination period, that candidates would be required to sign a declaration indicating their support for three specific clauses of the Basic Law. This was announced in an unusual and interesting government press release. It went through the existing legal requirements for candidates: “has to declare in the nomination form that he/she will uphold the Basic law and pledge allegiance to the Hong Kong Special Administrative Region,” and for successfully elected members of Legco: “members of the Legislative Council to swear to uphold the Basic Law when they assume office.

It goes on to say “we take the view” that candidates who advocate independence may not be eligible for election and this could cause “uncertainties to the solemn Legislative Council election and confusion to electors.” It also states that returning officers will ask candidates to sign a “confirmation form” expressing their support for the Basic Law in general and three clauses in particular.

The oddest thing about this effusion is the use of “we.” The HKSAR government does not usually refer to itself as a “we,” an affectation generally reserved for newspaper editorial writers and the Queen. Usually we get “a spokesman” and for matters of this importance, the spokesman usually has a name. Another oddity is that although “lawful” occurs a couple of times and the new wheeze is supposed to be “in strict accordance with the law,” we are supplied with no details about this. Nor in the ensuing week have we heard from the Department of Justice, or indeed from much of anyone else.

So who is the father of this bastard? We can, I think, exclude the Electoral Affairs Commissioner, Mr. Barnabas Fung. Mr. Fung has been floundering entertainingly when explaining the significance of the new measure. It is “administrative.” Candidates who refuse to sign may or may not be disqualified. The returning officer may if they do sign it seek “further information.” From where, one wondered. Wikipedia, the Information Services Department, the mainland secret police?

Anyway, it seems that you may be disqualified if you don’t sign and you may still be disqualified if you do. A fine mess for a retired judge to preside over. But this innovation is not Mr. Fung’s style. We know this because even as the nomination matter was bubbling along, he was asked about possible regulation of internet comments on candidates. His reply: “The EAC is open-minded on this but it is not up to the EAC to change the law.” Fung added that society should reach some broad consensus on the issue before the government may consider how to take it forward.

Barnabus Fung

Barnabus Fung Wah. File Photo: RTHK screenshot.

Having acquitted Mr. Fung, do we look further up the bureaucratic pyramid? One luckless official poked his head over the parapet last week to deny that the new measure was intended to exclude independence-seeking politicians from the election. Why he expected anyone to believe that, he did not say. But later, in a rather under-reported speech, Zhang Xiaoming, the head of the mainland’s Liaison Office in Hong Kong, let the cat out of the bag. Of course no disreputable candidates should be allowed to run in the election, he said, in case they won and used Legco to “demand independence.” And indeed this argument has been rather popular in the columns of the China Daily, our local English-language counterpart of the Global Times.

Readers have been assured that politicians who are not happy with the government do not understand the Basic Law. The requirement that they should express allegiance to specific parts of it is desirable, and completely lawful according to mainland legal experts. Well, a mainland legal expert is like a Swiss admiral. It’s rather easy to be an expert in mainland law because there isn’t any.

I also note an outbreak of that characteristic approach of China apologists, ill-informed allegations that what is being proposed is in fact perfectly normal. We are told that no country allows people to advocate independence for particular parts of it. This is hogwash. People have been trying for years to separate Quebec from Canada, Catalonia from Spain, Wales from England, Brittany from France and so on. Where people enjoy freedom of speech they enjoy freedom to entertain the idea of independence. And vice versa.

There is no such thing in Common Law systems as a thought crime. In what passes for a legal system in China, it is punishable to hold the wrong opinion. This is not the case in Hong Kong. Threatening people with prosecution for making false election statements if they fail to subscribe to the official interpretation of the Basic Law is clearly an attempt to intimidate. We all respect the Basic Law because it is the law. We are still free to see some parts of it as better than others. And since the law itself contains provisions for it to be changed, we are implicitly allowed to discuss and advocate changes which we regard as an improvement.

Zhang Xiaoming

Zhang Xiaoming. File Photo: TVB screenshot.

Independence would be a drastic change and is certainly not a practical objective in present circumstances. But people are allowed to think about it, talk about it and even campaign about it. Because that is what freedom of speech entails. One of two things will now happen. Someone will challenge the new election requirement. This need not involve any great matters of principle because it appears to be ultra vires. I do not believe the law authorises the government to require returning officers to inquire into the personal opinions of candidates. If the challenge succeeds, well and good. Some resignations would then be appropriate. If the challenge fails, I can only hope you are reading these words in Canada.

Watching the Leung administration feels increasingly – if I may borrow a metaphor from Michael Lewis – like sitting in a small boat watching the Titanic steam inexorably towards an iceberg. Is there no principle they will defend from mainland interference? If we are going to vet candidates, why stop at questionnaires and ferret through the press cuttings? There is a rich history of witch-finding which may help. Matthew Hopkins, the Witchfinder General and subject of a gloriously bad horror movie, used a pin. Will we see anyone who utters the word “independence” in LegCo grabbed by security and hustled out of the chamber, never to be seen again? 1984 was 30 years ago. Animal Farm is now.

Keeping independence candidates out of election is incompatible with freedom of speech