Hong Kong electoral officials have overstepped their boundaries by barring pro-independence candidate
Phil C.W. Chan and Paul Serfaty say the electoral commission’s rejection of Edward Leung as a candidate for the Legislative Council election was unequivocally unlawful
In an international city famed for its efficiency, the Hong Kong government has managed to turn yet another non-issue into a constitutional controversy.
One of the tenets of democracy is that, subject to objective criteria, everyone has a right to stand for office as a legislator. In Hong Kong, such criteria are clearly laid out in the Basic Law and the Legislative Council Ordinance. The Electoral Affairs Commission should ensure all requirements for candidates and elections are met. Its functions are administrative. If the commission bars an otherwise eligible candidate for political reasons, it undermines its own purpose, impartiality and independence.
The commission disqualified Edward Leung Tin-kei from next month’s Legislative Council election on the grounds of his previous advocacy for Hong Kong independence. Signing a declaration of allegiance to the Basic Law was not enough, as the returning officer deemed his allegiance to be not genuine.
It is implicit in running for office as a legislator that one must uphold the fundamental laws of the land. But upholding them is not the same as doing nothing.
Society evolves. A legislator’s principal function is to propose changes to the law to fit current circumstances. Seeking changes to the law for the betterment of Hong Kong is not subverting it. It is the very essence of legal and societal reform. Otherwise, a legislature is superfluous. The Basic Law itself incorporates procedures for amendment. A total of 24 instruments of “interpretations”, “decisions”, “explanations” and amendments have been added to the Basic Law.
It is rule of man (or woman), not rule of law, when a returning officer empowers herself to dictate who is and is not an eligible candidate in major elections due to the candidate’s belief, whatever it might be. In Leung’s case, the commission’s decision constituted interference in major elections. It was unlawful, unconstitutional and deeply dangerous.
One of us was in Istanbul three weeks ago when an attempted military coup – in the name of protecting democracy from the democratically elected Turkish president – was taking place. The attempt failed because the Turkish people united to oppose it, even when many objected to the president’s policies. The president quickly seized the initiative. In the name of purifying society, he purged a number of judges, academics and anyone he deemed to have been involved.
But there is no need to look to Turkey. The Chinese are no amateurs in purging the impure. We had our Cultural Revolution.
Phil C.W. Chan is senior fellow at the Institute for Security and Development Policy in Stockholm and Chengdu. Paul Serfaty is a barrister and Hong Kong permanent resident