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Disqualified: How the gov’t compromised Hong Kong’s only free and fair election

The Hong Kong government’s combination of prosecutions, candidacy bans, and disqualifications from the legislature amount to a sustained attack on political opposition. These unprecedented moves have created so many uncertainties and roadblocks as to render Hong Kong’s only free and fair elections heavily compromised.

agnes chow

File photo: In-Media.

On Saturday, January 27, Agnes Chow Ting was notified by the Returning Officer of the Electoral Affairs Commission of Hong Kong that she would not be allowed to run in the March 11 Hong Kong Island by-election to fill the Legislative Council seat left vacant owing to the disqualification from Legco of her Demosistō party fellow Nathan Law. This is a momentous event in Hong Kong history. The reasons for that are complex.

The article below is divided into three parts: 1. The messy background, 2. The disqualification of Agnes, and 3. The implications of the disqualification. If you’re already familiar with the background, feel free to jump to part 2.

1. The messy background

On August 31, 2014, the National People’s Congress Standing Committee of the People’s Republic of China issued a decree on elections in Hong Kong. It said that it would allow “universal suffrage” for the election of the Chief Executive, but its terms were so circumscribed that the Hong Kong pro-democracy movement cried foul: rather than offering universal suffrage, the 8/31 decree would, if implemented, cement Communist Party control over the election. The Umbrella Movement protests, which ran from September 28 to December 15, was a reaction against this decree.

In October 2014, during the Umbrella Movement occupations, the United Nations Human Rights Committee warned that the plan the Hong Kong government appeared to have for electing the Chief Executive, based as it was on the 8/31 decree, would constitute political screening, and therefore fail to meet international standards for universal suffrage. The 8/31 decree stipulated that only two or three candidates would be allowed to run and they would have to “love the country”. A Nominating Committee dominated by Communist Party allies would determine who would be allowed to run.

Rather than listening to the UNHRC, which has the legal responsibility to monitor Hong Kong’s compliance with the International Covenant on Civil and Political Rights to which Hong Kong is party, or to the Umbrella Movement or the wide variety of suggestions by Hong Kong people of ways to comply with international law, the Hong Kong government simply went ahead and made a proposal to the Legislative Council based on the terms of the 8/31 decree. The pro-democracy movement had large enough representation in Legco to veto the proposal. And so, universal suffrage in Hong Kong was dead on arrival.

hong kong democracy occupy universal suffrage umbrella movement

File photo: In-Media.

Since then, not only have the Hong Kong government and Communist Party done nothing to implement genuine universal suffrage or broaden the democratic rights of the Hong Kong people, they have made sustained and extensive efforts to further restrict those rights.

This started with the Legislative Council elections in 2016.

Only 30 of Legco’s 70 goegraphical seats are filled by elections that can be considered free and fair and conducted in accordance with the principles of genuine universal suffrage (thus, complying with ICCPR Article 25). And these, in turn, are the only positions in any branch of the Hong Kong government which are thusly filled. That’s how small and restricted the area of true democracy in Hong Kong is. And now it’s shrinking further, as the government attempts to impose various of additional conditions and restrictions on participation.

The other 40 seats are for the so-called functional constituencies representing various professional and other interest groups and sectors of society. There are only about 225,000 electors to 35 of those seats, whereas there are about 5 million eligible voters in the 30 geographical constituencies. The functional constituencies are stacked with Communist Party allies, ensuring their control of Legco. The pro-democracy movement has always won the majority of the seats in the geographical constituencies. Allies of the Communist Party have always won a huge majority in the functional constituencies.

The pro-democracy movement has called on the Communist Party and Hong Kong government to scrap functional constituencies, in accordance with their obligation under the Basic Law to introduce full and genuine universal suffrage. But rather than doing so, the Party and the local government have sought to control both the candidacy for, and representation of, the only 30 seats freely elected in the geographical constituencies.

legco council

Legislative Council chamber. Photo: Catherine Lai/HKFP.

In 2016, six applications for Legco candidacy were rejected. The reasons given were political: The applicants were suspected by the Returning Officers of the Electoral Affairs Commission of being advocates of independence for Hong Kong. Never before had applications for candidacy been rejected on political grounds. The Returning Officers justified their decisions by saying they did not believe the applicants could comply with a requirement of office holders in Hong Kong to uphold the Basic Law since Article 1 says Hong Kong is an inalienable part of China.

Previously, the function of the EAC Returning Officers was solely administrative, ensuring forms were filled out fully and correctly, but now, with the disqualifications they were making political and legal judgments which went far beyond the intended scope of their role. Not only were they now serving as political arbiters, but there was no recourse: If your application was rejected, there was nothing you could do about it, no one you could appeal to. Suddenly the EAC, previously regarded as non-partisan and neutral, was conducting political screening, exactly what the UNHRC said made the 8/31 decree fall short of Hong Kong’s international human rights obligations. Rather than going forwards toward greater democracy, Hong Kong was going backwards.

Two of the disqualified have filed challenges at the Hong Kong High Court. One, Andy Chan, is the head of the Hong Kong National Party, the first party to explicitly advocate independence. The court heard his case in May 2017 but strangely has yet to issue a decision. The other was Edward Leung, a former leader of Hong Kong Indigenous, a localist party with pro-independence inclinations. But when Leung filed his application, he eschewed independence. Not only that, he had been allowed to run for Legco in a by-election held only a few months before, in February 2016. Why had he been allowed to run in February but not in September? Nothing had changed. If anything, his political stance, as he articulated it, had moved away from pro-independence. And yet he was disqualified. The High Court, for reasons that are unclear, has yet to hear his challenge, though it was filed in October 2016. To complicate matters further, and make the process appear even more arbitrary, some applicants who appeared to have in the past at the very least expressed sympathy with the pro-independence cause were allowed to run for Legco.

After the Legislative Council elections were held in September 2016, elected Legco members took their oath of office in October. The Hong Kong government reacted to the ways some took their oath by attempting to disqualify six of them, all pro-democracy, on the basis that they had failed to fulfil the requirement of successfully completing their oath of office.

legco oath youngspiration

The Youngspiration duo in the chamber. Photo: HKFP/Kris Cheng.

This, again, was unprecedented. In the past, the oath of office had been used by some elected Legco members to protest. In some cases, the Legco secretary refused to accept their oaths as valid, and the Legco president required them to retake the oaths. Indeed, the new Legco president had already acceded to requests from the six Legco members to retake their oaths (though after the government announced it would bring legal cases against them, he revoked his agreement in the cases of Baggio Leung and Yau Wai-ching). In other words, this was customarily regarded as an intra-Legco matter, in which the Hong Kong government should not interfere, and Legco had shown itself entirely competent in dealing with past controversies.

Now the Hong Kong government was changing the rules. It brought its case against Leung and Yau to the High Court. While the case was on-going, the National People’s Congress Standing Committee, the same entity that had issued the 8/31 decree denying genuine universal suffrage to Hong Kong, issued a new “interpretation” of the Basic Law article pertaining to oath-taking.

It would have been one thing if the Hong Kong government had said: “We are warning you. We will no longer tolerate these antics. And from now on, new rules will apply.” But instead, the Party and Hong Kong government made up new rules and then applied them retroactively, going against one of the basic principles of common law, that you can’t hold someone legally accountable based on a law that did not apply at the time of the commission of the act in question.

The High Court judge subsequently disqualified Leung and Yau. Fresh off that success, the Hong Kong government brought cases against four more elected Legco members and by mid-2017, managed to get them disqualified as well.

In all, six applicants for candidacy were disqualified, and six elected Legco members were disqualified. While the six applicants for candidacy were all suspected of harbouring pro-independence views, the six disqualified Legco members had various political views: Leung and Yau were regarded as having pro-independence sympathies, though their party, Youngspiration, did not explicitly advocate independence. Nathan Law and Lau Siu-lai were in favor of self-determination (more on the meaning of that below). Leung Kwok-hung (Long Hair) was a staunch and outspoken opponent of the Communist Party, but up to then had never expressed pro-independence or self-determinationist views. And Edward Yiu was a mild-mannered professor who was simply pro-democracy. The High Court ruling emphasized they were being disqualified not for their political views but for their failure to successfully take the oath of office, but it appears that the Hong Kong government has not respected the distinction.

ousted ejected lawmakers

File photo: In-Media.

In disqualifying the six Legco members, the High Court ruling disregarded the rights of voters. As a result, a few words uttered while taking the oath of office were made to cancel out tens of thousands of votes. Indeed, over 180,000 people had voted for the six. Should not the will of the people and their democratic rights take a higher priority over the judgment that their elected representatives had taken invalid oaths, especially when the representatives were ready and willing to retake the oaths? Would not a more reasonable judgment have been to require them to take their oaths properly?

The Hong Kong government’s cases against the six were politically absolutist and the judge’s ruling legally fundamentalist in its failure to pay due heed to the principle of balancing constitutional rights and responsibilities. The judge was arguably boxed into a corner by the NPCSC interpretation of the Basic Law, probably the single-most egregious example of the Communist Party interfering in judicial processes in Hong Kong and thereby pressuring the High Court to take political factors into consideration and damaging the rule of law.

2. The disqualification of Agnes

Why, given the fact that the EAC Returning Officers already rejected six application for candidacy in 2016, is Agnes’ disqualification precedent-setting?

First of all, Agnes was the choice of the pro-democracy movement as a whole. She was running to replace her disqualified fellow member of Demosistō, Nathan Law. In the other two geographical constituencies in which there will be by-elections in March to replace disqualified Legco members, the pro-democracy movement held primaries to choose the candidates, but on Hong Kong Island, it ceded to Demosistō the right to choose Nathan’s replacement, and Demosistō chose Agnes. Whereas the six disqualified in 2016 could be seen as representing only themselves or their parties, Agnes represented the pro-democracy movement as a whole, a consensus of the whole spectrum of the movement, from traditional pan-democrat to self-determinationist. In rejecting Agnes, the government is rejecting the candidate of the pro-democracy movement, its main political opponent.

agnes chow

Agnes Chow. Photo: Facebook via 周庭 Agnes Chow Ting.

Secondly, the explanation given by the Electoral Affairs Commission is that Agnes was disqualified because of the self-determination stance of her party, Demosistō. This marks the first time that a Hong Kong governmental entity has taken concrete action based on the view that advocating self-determination is tantamount to advocating independence. The Communist Party’s consistent propaganda line has been to conflate independence and self-determination. Now the Hong Kong government has shown that propaganda is its official position as well.

The Hong Kong government asserts that self-determination is against the Basic Law. Therefore, logically, anyone belonging to a party that advocates self-determination cannot run for Legco because they can’t be regarded as upholding the Basic Law, in particular Article 1 on Hong Kong being an inalienable part of China. But as in the case of Edward Leung (allowed to run in February 2016 but not September 2016), the Hong Kong government is moving the goalposts, making up the rules as it goes along.

In September 2016, Nathan Law, also of Demosistō, was allowed to run for Legco without objection by the EAC. Now, Agnes is not. What’s changed? Why? What does this have to do with law? It appears to have much more to do with the changing political calculations of the Party and Hong Kong government. Eddie Chu Hoi-dick was elected to Legco in 2016 with the largest number of votes ever for a Legco candidate. He is a prominent advocate of self-determination. The government allowed him to run for office and has not (yet!) attempted to disqualify him. The lack of consistency merely serves to emphasize the arbitrary nature of these decisions.

Eddie Chu

Eddie Chu. Photo: In-Media.

Not only that, but the Hong Kong government’s assertion that self-determination is inconsistent with Basic Law is simply factually inaccurate. Basic Law Article 39 says, “The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.” Article 1 of both the ICCPR and the ICESCR says, “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

There are some details of these articles that require interpretation (for example, what does “as applied to Hong Kong” mean? And what is meant by “people”?) which I have gone into elsewhere, but basically, not only is it untrue that self-determination is incompatible with the Basic Law, the Basic Law actually protects the Hong Kong people’s right of self-determination.

One might argue that there is some tension between Hong Kong being an inalienable part of China (Article 1) and the right of self-determination (Article 39), but then the challenge is to reconcile that tension. It is a sleight of hand to only regard one and disregard the other. The Hong Kong government’s assertion that advocacy of self-determination is incompatible with the Basic Law is simply a political judgment and its disqualification of Agnes is a political ruling. It is dispensing with law and ruling by decree.

Even if a potential candidate is seen to be challenging certain aspects of the Basic Law or other laws, it is perfectly within her rights to do so. One purpose of candidates is to propose changes which they believe will improve Hong Kong, and there’s nothing that says changes to the Basic Law cannot be proposed, whether by an ordinary citizen, a political candidate, or a Legco member. To have an iron-clad policy of arbitrarily deciding that certain political views are contrary to the Basic Law, outside of any judicial proceedings or due process, and to disqualify candidates based on that judgment is to deny the very agency to political actors which is at the heart of the philosophy of democracy, that people are elected to change things.

demosisto

Demosisto’s launch. Photo: Demosisto.

As for what “self-determination” means, that depends on who you ask. At one time or another, quite a few groups in Hong Kong have advocated self-determination, including the traditional pan-democratic Association for Democracy and People’s Livelihood and various members of Civic Party, including a sitting Legco member, under ReformHK. Some have used terms such as “internal self-determination”, which basically means just having the autonomy Hong Kong people believe they were promised by the Communist Party to run their own government.

Given that different people and groups have advocated self-determination and defined it in different ways, does the disqualification of Agnes on grounds that she belongs to a party advocating self-determination mean that anyone advocating self-determination in any form is to be barred from running for Legco? If so, we’re in for a rout. And if not, then where are the boundaries? One suspects that the uncertainties arising from her disqualification are intended to intimidate people against using the dreaded term.

Not long after the Umbrella Movement, Joshua Wong began to advocate a form of self-determination which included the possibility of eventually (he proposed in about 2030) holding a referendum to determine the fate of Hong Kong after 2047, the end of the one-country two-systems period. (Most of Joshua’s articles on self-determination, along with rebuttals by the Communist Party, can be found here.)

More recently, Demosistō has downplayed that idea and spoken vaguely about self-determination. On its website, it declares, “Demosistō aims to achieve democratic self-determination in Hong Kong. Through direct action, popular referenda, and non-violent means, we push for the city’s political and economic autonomy from the oppression of the Communist Party of China (CPC) and capitalist hegemony.” Also posted there is a more extensive statement, “Democratic self-determination – Demosisto’s roadmap for the self determination of the Hong Kong people”.

Joshua Wong

Joshua Wong. Photo: Demosistō.

Not only is Demosistō fully within its rights in advocating self-determination, but the way in which it has done is exemplary for any responsible citizen. Its concern is for what is to happen to our city after 2047, and this is a matter about which all citizens should be concerned, for no one knows what will happen then.

Demosistō’s strongest assertion is that it is Hong Kong people who should determine what happens then. Never in our entire history have we decided our political status or even been so much as involved in determining the basic political parameters of our society. Why should it not be us who decides now?

The Communist Party has not presented its vision for what is to become of Hong Kong after 2047: Will it preserve the supposed one-country two-systems model at which it is incessantly whittling away? Will it attempt to fully assimilate Hong Kong into the mainland? It has not made its intentions clear, and this in itself should be cause for worry.

In disqualifying Agnes, the Hong Kong government is clearly siding with (more likely taking orders from) the Communist Party: Hong Kong people are not allowed to determine our own fate; only the Party has that right. This is dictatorship versus popular sovereignty in the starkest terms. The Party is showing itself to be as hostile as ever to the will of the people.

Thirdly, the Electoral Affairs Commission has acknowledged it consulted the Hong Kong government in arriving at the decision to disqualify Agnes. While a government agency, the EAC is putatively independent. The reason for this is that it must be regarded as an impartial arbiter in order to legitimately carry out elections. With its previous disqualifications on political grounds and the disqualification of Agnes, coupled with its acknowledgement that this was done in consultation with the government, it can no longer be regarded as that impartial arbiter. Rather, it is acting on behalf of the government to conduct political screening. This is enormously damaging to the EAC as an institution and to the only free and fair elections that exist in Hong Kong, those for the 30 Legco geographical constituency seats.

polling station vote democracy

Photo: In-Media.

It is part of a broader pattern: The Party and Hong Kong government are asserting greater political control over institutions, undermining the judiciary, the universities and the EAC, which have up to now been essential in protecting the insufficient rights and liberties that Hong Kong people do have. It is clear from this pattern that Hong Kong is going backwards, moving ever closer to the political model on the mainland, where the Party exerts full political control over all institutions of government.

To give this story an even wickeder ironic twist: the EAC consulted the new Secretary for Justice Teresa Cheng, who, since taking office, has been found to have at least ten illegal structures on multipled properties. So you have the spectacle of a Secretary for Justice who has apparently broken the law with total political impunity giving advice to disqualify a political opponent.

And then there’s Agnes herself, a highly conscientious, principled, astute young activist with a political wisdom and maturity far beyond her years. She would have been an excellent representative in Legco (perhaps that is exactly what the government was afraid of). She is exactly the sort of person any self-respecting democratic society would want to encourage to become involved in politics. Instead, she is excluded from it. Ultimately, her disqualification is a condemnation of the Hong Kong government for its cowardice and subservience to Communist dictatorship.

The larger issue is that talented, assertive young people have a dwindling stake in their own society. They are either driven to the margins or forced to emigrate. The Party and Hong Kong government’s efforts to retain absolute power are destroying Hong Kong. They are attempting to construct a rigidly hierarchical system with unelected leaders who are unaccountable to the citizens and a citizenry whose chief “virtue” is obedience and subservience.

Nathan Law and Edward Yiu

Nathan Law and Edward Yiu. Photo: Tom Grundy/HKFP.

On my way to the Sunday rally to protest the disqualification of Agnes, I passed a street station canvassing support for her opponent Judy Chan of the New People’s Party. I had to laugh: at that moment, Judy Chan was essentially running unopposed. I stopped and told one of her supporters, “Your slogan should be: Vote for Judy, she’s the only candidate.” How free and fair is that? Yes, the pro-democracy movement lined up a replacement for Agnes, but even if the EAC allows him to run (as of early Tuesday, January 30, one day after the nominations deadline, his candidacy still has not been confirmed), Au Nok-hin will start out at a distinct disadvantage, given that both Agnes and Judy Chan have already been campaigning for weeks. It appears that one of the intentions of the Hong Kong government in disqualifying Agnes is to make pro-democracy supporters so disenchanted with the process as to discourage their participation in elections. It’s not an exaggeration to say that for many, free and fair elections are a thing of the past.

3. The implications of the disqualification

Localists and advocates of independence and self-determination need not apply. In brief, that is the message.

Those groups represent a large proportion of the Hong Kong electorate that is being disenfranchised. Previous surveys have indicated that upwards of 16% of Hong Kong people support localism. In the 2016 Legco elections, 173,122 people voted for successful candidates who advocated self-determination (Eddie Chu- 84,121, Nathan Law- 50,818, Lau Siu-lai- 38,183) and 113,136 voted for successful candidates who were considered localists (Cheng Chung-tai- 54,496, Baggio Leung- 37,997, Yau Wai-ching, 20,643). That is a total of 286,258 votes, such a large number of voters as to effectively render Legco elections a joke now that their candidates are excluded. Under such circumstances, how can elections be considered free and fair?

After the Umbrella Movement, many new groups sprung up. They tended to be more strident and demanding than the more traditional pan-democratic parties. Their starting point was: The demands of the Umbrella Movement were not met, so what do we do now? One of the first decisions they faced was whether to participate in the formal political system even though they regarded it as illegitimate (because rigged and undemocratic). If they participated, were they not just legitimizing it? Would it not be better to work outside of the system? Virtually all of those groups, from Hong Kong Indigenous to Youngspiration to Demosistō, decided to take part in the formal political system and run for election. They believed it was preferable to work within the system to change it. They have been excluded from that system. Now what?

Hong Kong Indigenous.

Photo: Hong Kong Indigenous.

The Hong Kong government is clearly out to destroy them, not only by excluding them from formal politics but also by prosecuting many of their leaders and regular members. In January alone, there have been 7 trials of 56 pro-democracy leaders and activists. Does it believe it can stamp out localist, pro-independence and self-determinationist sentiment simply by excluding them from formal politics?

Demosistō will certainly have to reconsider its strategy given that it cannot expect that any of its members will be allowed to run for office again. Anyway, the Hong Kong government’s gotten Joshua Wong sentenced to a total of nine months in prison and Nathan Law to eight, rendering them ineligible to run for office for the next five years (unless those sentences are overturned on appeal). So it’s employed a variety of means to gut the party.

A whole generation of young people is being dissuaded from participating in the formal political system, becoming ever more hostile toward it if not cynical, regarding it as the preserve of elites who have as their chief aim shoring up the power of the Party and the financial interests that control a large portion of the economy.

And what are the implications for the wider pro-democracy movement? Will the pan-democrats simply express their outrage and then continue with business as usual? Can the pro-democracy movement adopt strategies outside of the political system that are more effective than participation in it?

umbrella occupy movement 2014 democracy

Photo: mameshiba1985, via Flickr.

One might expect the traditional pan-democrats to continue as is. After all, they have not substantially refined their demands since the Umbrella Movement, continuing to simply call for political reform even though it is abundantly clear that for the Party this is entirely off the table for the foreseeable future.

But what about the self-determinationists? They are now all but forced to reconsider their strategy. In 2016, there was an indirect debate between Joshua Wong and Eddie Chu regarding how to pursue self-determination. Joshua thought it was through referenda. Fresh off his huge election victory in September, Eddie thought it was through Legco, and he predicted that within one or two elections, half of Legco would be self-determinationist. The disqualification of Agnes puts paid to that aspiration. So what now?

Perhaps the self-determinationists have put too much faith in Legco as a pathway to anything. Essentially powerless, and now with the entrance to it jealously guarded by Party gatekeepers, Legco’s an eternal cul-de-sac intended to keep the pan-democrats going in endless circles. Perhaps it’s a blessing in disguise to be excluded. It seems that the success of self-determination will depend on a broad-based mass movement, and this requires reaching out to the people and deep organisation, not just mobilisation for the occasional elections. Right now, there are many extremely angry and frustrated young people who need to be empowered to take the future of their city into their own hands.

Meanwhile, the government is trying to do away once and for all with the pro-democracy movement’s veto power in Legco, to capture Legco in order to have its way with Hong Kong, which could very well include introducing Article 23 “security” legislation and even a new proposal on fake suffrage.

At what point does something gotta give?

With the disqualification of Agnes, we have entered a new phase in Hong Kong history. The future is very uncertain. All that is clear is that the Communist Party and the Hong Kong government will continue in their efforts to politically control Hong Kong and further restrict Hong Kong people’s already highly circumscribed right to political participation. Far less clear is how the people will react.

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Disqualified: How the gov't compromised Hong Kong's only free and fair election