Legislative Council elections 2016

Hong Kong voters, not election officials, should decide the fate of candidates with extreme views

Mike Rowse says the administration has effectively lost the Legco election with its clumsy efforts to bar localist candidates, a move that is likely to engender long-lasting ill feeling

PUBLISHED : Sunday, 14 August, 2016, 8:02am
UPDATED : Sunday, 14 August, 2016, 8:02am

In terms of integrity, respect for the rule of law, and general political skill as displayed in recent weeks, I think it is fair to say the administration has already lost the 2016 Legislative Council election. It has certainly abandoned the moral high ground without putting up much of a fight.

The extraordinarily clumsy effort to bar certain candidates from even standing in the polls due early next month will probably backfire. It will engender ill feeling that will endure for months or years, even among the vast majority who agree that the idea of independence for Hong Kong is a total non-starter. Stand by for more complaints of an obstructive Legco.

Disqualifying localist Legco candidates lets politics ‘eat into’ legal system, former Bar Association chair says

While some aspects of the saga have featured in the media, other details of administrative machinery may not have captured their due share of attention. Take the fact that most civil servants involved in administering elections are volunteers. Only a small minority are engaged full time in the politics and mechanics of the elections.

Normal practice in the run-up to an electoral cycle is for a circular to be issued within the civil service, inviting people to take part in extra duties. Many do volunteer, and all those whose application is approved are then given copious notes on what to do, supplemented by a special briefing by senior officials.

It is ludicrous to suppose that a number of returning officers, spontaneously, simultaneously and separately on their own initiative, began to challenge the application papers submitted by some candidates. Of course they didn’t; they were instructed to do so at the oral briefing, supplemented by the no doubt carefully worded, detailed written instructions.

It is ludicrous to suppose that a number of returning officers, spontaneously, simultaneously and separately ... began to challenge the application papers

The important point is that someone within the administration actually raised the question: “How can we stop these candidates registering for the poll?”, worked out possible administrative actions, and then prepared an action plan and drew up detailed instructions for others to implement.

Who issued these instructions and on what authority? Whose was that black hand? Someone from the Constitutional and Mainland Affairs Bureau or the Electoral Affairs Commission? Or perhaps – shock, horror – it wasn’t anyone associated with Tamar at all.

A blow to Hong Kong’s clean and fair electoral process – dealt by its own election officials

All candidates are required to sign a form confirming support for the Basic Law and loyalty to Hong Kong. The first of the new blocking tactics was to invent an additional form selecting certain Basic Law clauses and requiring specific confirmation that the candidate accepted them, in particular that the SAR was an inalienable part of China.

This proved to be a damp squib, as pan-democrats declined to sign on the grounds that it was superfluous and unconstitutional. The legal basis of the new form was so weak that the administration backed off. The political damage of proceeding with an election without any opposition at all was deemed too serious.

Attention then turned to the “sincerity” of those pledging support for the Basic Law. Civil servants were being asked to assess whether all the candidates really meant it. This is not a judgment they should have been asked to make: it represents politicisation of the civil service. Some candidates could say, in good faith, “I accept the Basic Law as it is now, but there are also clauses providing for amendment and I would like to trigger those”, or, “even if I advocated independence before, I am entitled to change my mind”.

It is at this point that Secretary for Justice Rimsky Yuen Kwok-keung advised that returning officers were entitled to draw on past comments by the potential candidates in social media, or in public speeches and to media, to rule them in or out and could ignore any expression of change of heart. There is a special technical expression to describe legal advice of this sort: “Not worth the paper it is printed on”.

The proper way of dealing with candidates holding outlandish views is to leave it to the voters to make a judgment. Even if one or two squeak through in the first instance, they will soon be exposed and fall out of favour. Rejecting them up front on spurious legal grounds simply turns political lightweights into heavyweight martyrs. Was that really the intention?

Mike Rowse is the CEO of Treloar Enterprises and an adjunct professor at the Chinese University of Hong Kong. [email protected]