Hong Kong’s election ban may be legal, but the controversy will rumble on
Regina Ip says there’s no escaping the tricky questions about the specifics of such a ban. It’s one consequence of Hong Kong’s difficult balancing act of upholding its separate system against China’s constitutional authority
Last year, six legislators in Hong Kong were disqualified from holding office for failing to take their Legislative Council oath properly. This triggered a series of by-elections to fill the vacant seats. On January 27, six weeks before polling day, electoral authorities set off a political firestorm by declaring Agnes Chow Ting, one of the candidates on Hong Kong Island, ineligible to stand for election.
In fact, even before the nomination, a few pro-government media had reported that Chow, a founding member of Demosisto, a political group which advocates self-determination, and possibly Edward Yiu Chung-yim as well, would be debarred from standing. Yiu, who got the nod nonetheless and is running in Kowloon West, is a former legislator elected in 2016 in the architecture and planning constituency. He is one of the six who were disqualified in the oath-taking saga.
The government trod carefully in handling these contentious nominations, knowing that it would be caught between the Scylla of world opinion on its obligation to safeguard political rights, and the Charybdis of holding elections that conform to national and legal requirements about sincerity in upholding the Basic Law.
So far, apart from Chow, two more candidates, Ventus Lau Wing-hong and James Chan Kwok-keung, both running in New Territories East, have been declared ineligible because of their pro-independence stance. Chan was barred from running in the Legco election in 2016 for the same reason, while the evidence against Lau comprised his Facebook messages in 2016 reiterating support for independence.
The electoral authorities apparently gave serious consideration to debarring candidates in two categories.
The first category, which includes pro-independence candidates Chow, Lau and Chan, turns on whether the returning officers accept that they genuinely support the Basic Law and are loyal to the special administrative region. In light of their past statements and political activity, the returning officers concluded that they could not be trusted.
In the case of Yiu, the legal question hinged on whether the National People’s Congress Standing Committee’s interpretation of Article 104 of the Basic Law, issued in November 2016, empowers the SAR government to prevent a disqualified candidate from running, and possibly holding office again, within the same term of office.
Two of Hong Kong’s legal experts, law professor Albert Chen Hung-yee and senior counsel Ronny Tong Ka-wah, have both raised issues of concern. Professor Chen pointed out that the court decision on the election petition of Andy Chan Ho-tin, who was prevented from taking part in the 2016 Legco election for his separatist stance, would be crucial, but it is still pending. Tong argued that, in the absence of an explicit law barring a disqualified candidate from taking part in future elections, a ruling against Yiu would be hard to defend.
In response to criticism that it was violating the provisions in the International Covenant on Civil and Political Rights protecting the right to take part in elections, the government has argued that it acted in accordance with both the Basic Law and local laws, specifically the Legislative Council Ordinance, which requires candidates to uphold the Basic Law and pledge allegiance to the SAR.
The decision to allow Yiu to take part in the elections strengthened the government’s argument that the returning officers’ decisions were all made in accordance with the law, but a raft of tricky questions remain unanswered.
For example, if Facebook messages could be taken as evidence, how about statements made in public forums, and messages posted on websites which had been retracted or expunged because of “political reality”? If a candidate, because of political expediency, publicly and emphatically repudiates his former pro-independence stance but subsequently returns to his former position, how would the returning officer judge such conflicting pronouncements?
If such candidates are to be debarred, for how long and what appeal and redress procedures are open to them, other than the costly and ineffectual avenue of submitting an election petition, as suggested by the government?
Also, does the NPC Standing Committee decision bar a candidate one time only or is it meant to do so for one term, or even for life? If so, would local legislation be necessary and how would that square with the International Covenant on Civil and Political Rights?
Beijing envoy in Hong Kong urges preparedness against ‘significant political and legal incidents’ this year
Legal issues apart, the fundamental question is: how do you draw the line between political rights and violation of the law, and how do you balance upholding Hong Kong’s separate systems against the overarching power of China’s constitutional decisions?
In reply to questions from legislators on January 31, Chief Executive Carrie Lam Cheng Yuet-ngor disclaimed responsibility for the electoral decisions, but admitted that she was ultimately responsible for everything that goes on in the SAR. Ultimately, she would have to answer these questions, or risk pleasing neither the central government nor the people of Hong Kong.
Regina Ip Lau Suk-yee is a lawmaker and chairwoman of the New People’s Party