January 31, 2018
January 27, 2018
Democracy activist Agnes Chow's election ban has 'far-reaching implications', Hong Kong legal expert says
University of Hong Kong Principal lecturer Eric Cheung said that the disqualification of democracy activist Agnes Chow from the March Legislative Council by-election race does not comply with procedural justice. He added that the government’s decision to ban her could have “far-reaching implications” for elections in general.
HKU legal scholar Eric Cheung. File Photo: Apple Daily.
Chow’s party, Demosisto, advocates “self-determination” for Hong Kong people. On Saturday, election officers rejected Chow’s candidacy, saying she “cannot possibly comply” with electoral laws after promoting or advocating notions of self-determination. In a Saturday press release, it said that the idea – and changing the city’s system by a referendum that includes an option of independence – was “inconsistent with the constitutional and legal status of the HKSAR.”
Speaking to HKFP on Saturday, Cheung questioned whether the returning officers – civil servants who oversee elections – had the power to carry out such political screenings: “It does not comply with even the most basic procedural justice and natural justice principles, as she did not ask Chow to explain her stance and merely checked the group’s past record in deducing that she did not uphold the Basic Law – notwithstanding that she already signed the declaration. This is the biggest problem.”
Election hopefuls must sign a declaration stating that they will uphold the Basic Law and pledge allegiance to the Special Administrative Region. Chow signed the agreement and has denied she is pro-independence.
“Whether you uphold the Basic Law and pledge loyalty to the Hong Kong government — these are very broad and general terms and there could be different interpretations,” Cheung said. “If [the understanding] is different to the government and, after reviewing my past speech, they say that I do not uphold the Basic Law and do not allow me to run — that is very ridiculous.”
Interview: Pro-democracy by-election candidate Agnes Chow: who is she and why does she want your vote?
“And if one doesn’t accept the National People’s Congress Standing Committee’s authority — and there are many of of these individuals — does this mean I do not accept the Basic Law, and does this mean that I can’t run for election?”
Agnes Chow shows her election race disqualification notice to reporters on Saturday. Photo: In-Media.
Cheung said that the decision also means that a returning officer could determine that one is not loyal based on their past Facebook records, their interactions with other foreign organisations, the passports they once held, their associations with certain groups or any other public comments they made.
He said that the level of due diligence taken by a returning officer — such as how deeply they checked a candidate’s background, and whether they checked at all — would also come into play.
Cheung said that once returning officers have such powers, it could have “far-reaching implications” for elections, as a high level officer could arbitrarily decide whether a person can run. It impacts not just the March by-election, but also future legislative and chief executive elections, he added.
Chow has said that she will remain in the party despite the ban. The democrats’ have agreed to field Southern District Councillor Au Nok-hin as their Hong Kong Island constituency candidate instead.
Oath taking saga
Chow is not the first to face disqualification. Since the 2016 legislative election, 12 Hongkongers have been banned from standing or disqualified from the legislature after being democratically elected.
The March by-elections are taking place to replace four lawmakers who were ousted by courts over their oath-taking. Six were disqualified by the courts in total, but two appeals lodged by Lau Siu-lai and “Long Hair” Leung Kwok-hung have yet to be completed.
In the 2016 legislative race, election officers barred five contenders from running because they did not accept that they would “uphold the Basic Law” – a proviso for entering the race. Candidates were also asked to sign pledges in which they promise to uphold the mini-constitution and pledge allegiance to the Hong Kong Special Administrative Region.
Convener of the pro-independence Hong Kong National Party Chan Ho-tin filed an election petition against the electoral officer’s apparent power to disqualify candidates after his bid was rejected in 2016. The hearing was completed last May, but the High Court has still not delivered a verdict on the matter. Edward Leung, then-spokesperson of localist group Hong Kong Indigenous, and advocate of Hong Kong’s return to the United Kingdom Alice Lai both also filed election petitions after they were barred from running.
The pro-democracy camp is organising a rally outside government headquarters at 5pm on Sunday.
by AFP / Today, 15:56
One of Hong Kong’s best-known democracy activists was banned Saturday from standing as lawmaker in upcoming elections, the latest blow to freedoms in the city as Beijing tightens its grip.
Agnes Chow, 21, a former leader of the mass Umbrella Movement protests of 2014 that called for political reform, had her nomination rejected because she supports self-determination for the semi-autonomous city, the government said.
It comes as fears grow that political debate in the city is being shut down under pressure from an assertive Beijing, with the recent jailing of democracy activists fueling concern.
The emergence of campaigners calling for independence for Hong Kong since the failure of the Umbrella Movement to win reform has incensed Beijing, and President Xi Jinping has made it clear that he will not tolerate any challenge to Chinese sovereignty.
The pro-Beijing Hong Kong government has previously barred independence activists from standing for office, but Chow’s ban is the first against a more moderate campaigner.
She had been hoping to stand in by-elections in March, which were triggered by the disqualification from the legislature of six lawmakers who protested while taking their oaths of office in 2016.
“Self-determination or changing the Hong Kong Special Administrative Region (HKSAR) system by referendum which includes the choice of independence is inconsistent with the constitutional and legal status of HKSAR,” the government said.
It added that someone who “advocates or promotes” self-determination or independence cannot uphold the city’s mini-constitution, the Basic Law.
Chow is a member of Demosisto, a political party co-founded by leading democracy campaigner Joshua Wong, who is currently out on bail after being jailed for his role in the 2014 rallies.
Demosisto does not campaign for independence but advocates self-determination and a referendum for Hong Kong people to decide how they want to be governed.
The ban on Chow has wide-scale implications for other similar activists wanting to stand for office, including Wong.
Demosisto said it “strongly condemns” what it called a political decision.
“The government’s motivation is to eliminate the hopes of an entire generation of young people,” it said in a statement.
The ban is also another set-back for the pan-democratic camp, which is trying to win back the six seats it lost due to the disqualifications.
Losing the six seats robbed it of the one-third minority vote needed to block important bills in the pro-Beijing legislature.
Hong Kong was handed back to China in 1997 under a “one country, two systems” deal that grants it a partially elected legislature and rights unseen on the mainland, including freedom of speech and the right to protest.
But there are growing fears those liberties are being eroded.
The Basic Law specifies that Hong Kong is an “inalienable” part of China, but activists say that does not mean views that challenge that status should be silenced, given that freedom of speech is protected.
The post Leading Hong Kong democracy activist Agnes Chow banned from vote appeared first on Coconuts.
A sordid electoral affair
17 August 2016
Something must be said about the Hong Kong Government's idiotic, sordid approach to the Legislative Council elections, which is undermining what little credibility the rigged assembly had. Until now, whatever you think about the small circle corporate elections (or uncontested nominations) for many of the so-called functional constituencies, you might at least have believed that in the 5 Geographic constituencies which elect 35 seats, the process for nomination was fair and open. No longer.
In addition to the standard nomination form, which requires candidates (nominated by 100-200 electors) to declare that they will "uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region", this time around, the Electoral Affairs Commission (EAC) has devised a new form, noting in a press statement that "recently there has been public opinion concerning whether the candidates do fully understand the Basic Law". Apparently, in Hong Kong, procedures are now devised on the basis of "public opinion" rather than legal requirements.
The EAC (the members of which are appointed by the Chief Executive) has singled out three Articles of the Basic Law which it presumably believes are particularly misunderstood, although they seem perfectly clear to us, and the new confirmation form requires the proposed candidate to confirm as follows:
"I understand that to uphold the Basic Law means to uphold the Basic Law" (with you so far) "including the following provisions:
The Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China.
The Hong Kong Special Administrative Region shall be a local administrative region of the People's Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People's Government.
No amendment to this Law shall contravene the established basic policies of the People's Republic of China regarding Hong Kong."
Now this confirmation really adds nothing, because when you pledge to uphold the Basic Law, that includes all of its provisions, and indeed, the first thing an elected legislator must do after sobering up from celebrations, under Section 19 of the Oaths and Declarations Ordinance, is take the Legislative Council Oath in Schedule 2 of that Ordinance, which reads:
"I swear that, being a member of the Legislative Council of the Hong Kong Special Administrative Region of the People's Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China and serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity."
That's all fine as far as it goes, but here's where the Government has gone too far: via the Returning Officers (all of whom are full-time civil servants, mostly District Officers,appointed by the EAC) the Government has been vetting the proposed candidates to determine whether, in their view, the candidates are bona fide (in good faith) in signing the declaration in the nomination form.
First of all, that's not a function of returning officers. If anyone is alleged to have made a false statement in an election-related document (for example, by claiming a bogus doctorate), that is a matter for the police to investigate, the Department of Justice to prosecute and the courts to determine after a fair trial. The duties of the Returning Officer are stipulated in the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, particularly Section 16, and they don't include second-guessing the candidate's intent or polygraphing them.
Second, even if you think that Returning Officers can make such a determination, what do they mean by bona fide in this context, and by what criteria do they determine this? They are conducting e-mail interviews and trawling through past public statements by, or attributed to, the candidates to determine whether or not the candidate supports the notion of HK sovereign independence (or some higher degree of autonomy than HK enjoys). If the Government (via the ROs) determines that the candidate does not agree with the said Articles of the Basic Law, then the declaration is deemed by the RO to be not bona fide and the candidate is disqualified, even if they have signed both forms. One such example is the rejection of Edward Leung Tin Kei, who ran in the previous New Territories East by-election earlier this year and received 15.4% of the Vote.
Upholding the law does not mean agreeing with it
Here's the problem. Any person can disagree with the contents of a law, including a constitutional law, while at the same time and in good faith pledging to uphold it as long as it is the law. Indeed, upholding the law is fundamental to the rule of law. There is nothing inconsistent between bona fide pledging to uphold a constitutional law and seeking to change it, however outlandish those proposed changes may be. If this was not true, then no constitution on Earth would ever be amended, because anyone seeking an elected office would have to pledge (on pain of criminal prosecution for lying) that they don't want to change the constitution. Although HK legislators cannot introduce a bill to amend the Basic Law, under Article 159, any amendment requires a two-thirds majority of all LegCo members. So if "upholding" the Basic Law means agreeing with all of its contents then no proposed amendment would ever obtain that approval.
You may campaign to abolish constitutional freedom of speech or religion, which are embedded in the Basic Law, but in the meantime, you can and must, if you run for elected office, pledge to uphold it. You may seek to raise or lower the constitutional minimum age (40) for becoming Chief Executive, but again, you uphold the current limit while it stands. Members of the UK parliament have sought independence for Scotland, something which would repeal the Acts of Union 1707, but there is nothing illegal about seeking that while at the same time upholding and abiding by the current law, otherwise Scotland would have very few MPs in Westminster - all the Scottish National Party members would be disqualified.
So even if the Returning Officers can make a determination that a declaration is not bona fide (and we say that is not their role), and even if a candidate is calling for constitutional change, that doesn't mean that he won't honour his declaration to uphold the Basic Law in its current and future forms.
By imposing this filtration system on the views of candidates, the HK Government via its EAC is leaving itself wide open to judicial review, the result of which could be the overturning of the election of all the legislators in each constituency where someone has been denied a valid nomination. Indeed, it may go further than that, because it is arguable that potential candidates have been deterred by this new vetting mechanism from coming forward, and that therefore the elections (or uncontested nominations) in all of the constituencies are tainted, whether or not a candidate for that constituency was rejected.
Perhaps the Government knows this, and is hoping to argue that when the dust has settled, a sympathetic judge will rule against the filtering but allow them to get away with it until the next elections in 2020, rather than conduct a re-run, in which case it will have succeeded in excluding certain people from LegCo. We hope not, because it cannot be said that a challenge to this procedure was a surprise, as putative candidates have already applied for a judicial review and been told to wait.
Stoking the flames
The correct political strategy for dealing with ideas that most of your population would find unworkable is to ignore them, but the Government has chosen to stoke the fire, starting with the Chief Executive's policy address on 14-Jan-2015 when he poured oil on a Feb-2014 HKU student magazine article and a 2013 book advocating Hong Kong's self-determination which until then had garnered very little attention. Now they have become recommended reading, if you can find a copy.
The attention on independence advocates has been further increased by claims from Beijing's officials in HK that even discussing independence on a "large-scale" would besedition under the Crimes Ordinance. The problem with that claim is that the definition of "seditious intent" in Section 9excludes an intent "to persuade Her Majesty's subjects or inhabitants of Hong Kong to attempt to procure by lawful means the alteration of any matter in Hong Kong as by law established" (for "Her Majesty", read "The PRC"). So calls for constitutional reform by lawful means are explicitly excluded from seditious intent. There is nothing illegal about them, futile though they may be.
And if that wasn't enough, the HK Government (and at all times, we must assume the PRC Government's wishes accord with it) has, via the Companies Registry, been refusing to register companies which it thinks may represent political parties which call for independence, while the Post Office has been filtering election materials for their mentions of "civil referendum" or "self determination". The Government has, through its own heavy-handedness, boosted popular sympathy for what was previously a small minority on the fringes of the political map and given them more publicity than they could have dreamed of.
This publicity and sympathy, together with HK's peculiar electoral system, is why, if the candidates had been allowed to run, they would probably have secured several seats in LegCo. Ironically, by banning them, the Government has boosted the chances of the traditional pan-democrats who will now face a bit less fragmentation of the vote.
The electoral maths
Perhaps Beijing is now coming to regret the system of "proportional representation" which it introduced after 1997, abandoning the previous first-past-the-post system with 1 seat per constituency. They introduced this party list system to guard against the pro-democracy parties sweeping all the seats. Instead we have 5 jumbo constituencies, where the two largest (New Territories East and New Territories West) each have 9 seats, so mathematically, one only needs 10% of the votes plus 1 vote (the Droop quota) to be certain of election, and there is a good chance of election with substantially less than that. As we explained in our 2004 article One Vote, Wrong System, if there are L lists of candidates for S seats, and Vvotes are cast, then it is theoretically possible to be elected with only V/LS+1 votes.
The Government knows this. It's their system. They wanted it. Two other aspects lead to fragmentation of the vote, particularly for the pan-democrats who are less tightly-coordinated than the pro-government camp. First, the system uses a Hare Quota (V/S) rather than a Droop Quota (V/(S+1)) to allocate seats, so split lists are more efficient. For example, in a 5-seat constituency, a list needs 36% of the votes to guarantee 2 seats, or 18% per seat, whereas 2 separate lists will certainly succeed if they each get 16.67%. Second, votes are not transferable (electors must choose 1 list only and cannot rank lists in order of preference), so single-member lists with low support have a chance of election rather than seeing their votes transferred to more popular lists of candidates.
The Single Transferable Vote (STV) system is in fact used in 4 of the so-called Functional Constituencies (Agriculture & Fisheries, Heung Yee Kuk, Insurance and Transport), although it only comes into play if there are at least 3 candidates, which has only happened twice in the SAR era, both times in the insurance constituency (1998 and 2008). It won't happen in 2016, with 2 of them uncontested and the others having 2 candidates each.
In 2016, the fragmentation in the geographic constituencies has reached epic proportions: in New Territories East, there are 22 lists competing for 9 seats, and across the SAR there are 84 lists for 35 seats, compared with 67 lists for 35 seats in 2012, 53 lists for 30 seats in 2008 and 35 lists for 30 seats in 2004.
In NT East in 2012, there were 19 lists and the lowest-scoring successful candidate, Gary Fan Kwok Wai, was elected with 6.16% of the votes, while the highest-scoring was Leung Kwok Hung with 10.39% of the votes, still less than the Hare Quota of 11.11%. This year's lottery should produce some interesting results.
© Webb-site.com, 2016
Author: Ray Yep, City University of Hong Kong
2017 was a year of disillusion and anxiety for Hong Kong’s people.
It started with a false dawn. The unexpected decision of the hugely unpopular Leung Chun-ying not to seek a second term as chief executive of the Hong Kong Special Administrative Region offered a glimpse of hope for the local community. Many see Leung as a divisive and manipulative visionary; by contrast, his successor Carrie Lam is a civil servant-turned-politician and has a reputation as a competent and fair-minded administrator. She has also filled her cabinet with people of similar career trajectories: the majority of the ministers have served in the civil service before.
Lam’s strategy of governing is simple: stay away from political controversies and focus on policy matters. She was unequivocal in her first policy address: the new administration has no specific timetable for rekindling the debate on universal suffrage. At the same time, she remained evasive on the issue of Article 23 legislation — a law proposed in 2002 that would suppress seditious activities against China in Hong Kong. She instead reiterated that her priorities included matters like housing supply, welfare reform and economic development. Lam’s strong hint that her administration would increase public spending also helped her score a few points in opinion polls.
A considerable segment of the local population is frustrated with the relentless political dramas of the Legislative Council as well as with the general stasis in policy processes over the five years of the Leung administration. Lam’s strategy has consequently made progress in winning public support.
The Chief Executive has an unfortunately peripheral role in dictating the rhythm of Hong Kong politics — Beijing’s position matters most. The Chinese Communist Party (CCP) made the most authoritative articulation yet of its Hong Kong policy at the 19th Party Congress held in late 2017. Two clear messages were crystallised in the Congress pronouncement: Beijing enjoys ‘comprehensive jurisdiction’ over Hong Kong and has zero tolerance for any form of separatism. The former confirms Beijing’s full authority over Hong Kong despite the promise of a high degree of autonomy under the framework of ‘one country, two systems’.
The CCP believes that it is perfectly entitled to get involved in the domestic affairs of Hong Kong if circumstances permit. One of these possible ‘circumstances’ is when the CCP perceives its imperatives of national dignity and territorial integrity to be under threat. Beijing will not hesitate to respond and will take whatever measures the situation warrants when this occurs. A more proactive approach in handling Hong Kong is thus on the horizon.
These affirmations are nothing new — Beijing did not shy from taking provocative measures to reverse ‘undesirable’ trends in Hong Kong in 2017. Upon the ‘request’ of the Hong Kong government in late 2016, the Standing Committee of the National People’s Congress interpreted a clause of the Basic Law (Hong Kong’s mini-constitution) on the oath-taking procedure in the Legislative Council. The move effectively removed two popularly elected legislators (Yau Wai-ching and Sixtus ‘Baggio’ Leung) who showed great disdain for the People’s Republic of China. Both individuals displayed flags printed with the slogan ‘Hong Kong is not China’ during the swearing-in ceremony of the Legislative Council.
The saga continued in 2017 as another batch of four legislators, including ‘Long Hair’ Leung Kwok-hung, were disqualified on the same grounds in July. Yau Wai-ching, Sixtus Leung and these four legislators cumulatively commanded about 200,000 popular votes in the 2016 election. They are all seen by Beijing as separatists and are thus a threat to national sovereignty. Beijing’s inclusion of the newly passed National Anthem Law into the Annex of the Basic Law in November further attests to the CCP’s irritation with Hong Kong’s trend towards sedition and ‘unhealthy development’. This irritation is a reaction to the numerous cases of booing and insults towards China’s national symbol during international football games played in Hong Kong. The new law could make any disrespectful behaviour towards the national anthem punishable in local jurisdictions.
Beijing does not necessarily see its intrusion as a matter of dignity and political concern. It could also be a gesture of care and support for its compatriots in Hong Kong. In late December, the Standing Committee of the National People’s Congress approved the Hong Kong government’s proposal of a joint check-point for a cross-border high-speed rail in Hong Kong. One of the reasons behind this approval was that Beijing sees further integration between Hong Kong and the mainland as imperative to the economic future of Hong Kong. Nevertheless, the arrangement does imply mainland officials can enforce national laws in part of the West Kowloon Terminus in Hong Kong. All of these developments exacerbate trepidation towards the incessant erosion of Hong Kong’s autonomy and further undermine local confidence in the future of one country, two systems.
Ray Yep is Professor of Politics and Associate Head of Department of Public Policy, City University of Hong Kong.
This article is part of an EAF special feature series on 2017 in review and the year ahead.
January 05, 2018
Posted on January 5, 2018 by biglychee
Even at January 5, it looks certain that 2018 will be a year of continuous, quite possibly accelerating, Mainlandization in Hong Kong. Not a day is going by without another step towards authoritarianism – a young activist being tried or retried, a pro-dem academic losing his job, an opinionated foreign visitor being turned away at the airport.
The effect is (presumably intentionally) numbing. But Beijing’s imperial edict on co-location (officially termed an NPCSC decision) is different. It crosses a line, partly because it enables Mainland law enforcement to operate openly in part of the city, but mainly because it shatters the idea that the sovereign power might be subject to any legal constraints within Hong Kong. By conjuring a legal justification for co-location out of nowhere, without any reference to the Basic Law, let alone the local laws and process, Beijing establishes law by fiat, rule by man, might-is-right as a reality here. In principle, all bets are now off.
South China Morning Post business columnists, who would normally ignore non-financial affairs, show signs of discomfort. This is Beijing’s way of convincing us that it is in charge, says one, which points to things like censorship down the road, adds another.
Most companies here have exposure to and interests in the Mainland, and they will be unperturbed so long as Beijing doesn’t crush the life and freedoms out of Hong Kong too quickly or unexpectedly. The question from a business viewpoint is: will the Communist Party be able to criminalize opinions, neuter the legislature and sidestep judges and juries discreetly and gradually enough?
It’s possible that the forthcoming Legislative Council by-elections on March 11 will be the last ones before candidate-barring and LegCo procedure-rigging make running/voting a pointless farce. (Serious prediction for when boycotts bring the turnout below 30-40%: the government makes voting mandatory.) I declare the weekend open with a suggestion to watch two fun issues that could embarrass pro-Beijing forces – the ding rights-selling village house developer scam, and the juicy prospect of converting Fanling Golf Club to affordable housing.