Legislative Council of Hong Kong

Why Hong Kong’s legislature is a world-class circus, run by clowns

Mike Rowse says breaches found at all stages of this year’s Legco election – from the nomination of candidates to lawmakers’ swearing-in – are a severe test of our trusted system of separation of powers

PUBLISHED : Sunday, 23 October, 2016, 10:04am
UPDATED : Sunday, 23 October, 2016, 5:59pm

One of our targets in the early days of InvestHK was Cirque du Soleil, the famous Canadian entertainment company. I still remember a very cold visit to Montreal where we attempted to persuade senior executives to make Hong Kong their main base in Asia. Alas, they chose Macau, our sister SAR across the Pearl River estuary, no doubt attracted by subsidies from the casinos. Win some, lose some, at least they are in a nearby part of China.

After the events of recent months, I think we can now say with some confidence that Hong Kong has created its own world-class circus, known locally as the Legislative Council. There are two main reasons why the situation has descended into farce: the Hong Kong government has launched a concerted attack on the concept of separation of powers; and the central government’s liaison office is acting in flagrant breach of the Basic Law.

Brouhaha over oath-taking is undermining legislative process

Let us examine the recent election to our legislative body. We should naturally start at the beginning, the nomination process. Some returning officers took it upon themselves to reject the nomination papers of several candidates, based on their own interpretation of those candidates’ manifestoes or past public utterances.

It is highly unusual for the executive to interfere directly with the legislature at all, let alone at the outset. Those assessments are for the voters to make, not civil servants. It may be acceptable for officials to point out certain points of principle so that the electorate can draw their own conclusions about the suitability of some candidates. And it is certainly acceptable for rival candidates to make the same points forcefully. But for officials to disqualify some people altogether on the basis of political judgements is highly dubious. It is Legco’s job to monitor the administration, not vice versa.

We also need to be clear that this was not a spontaneous exercise of traditional powers. This was a coordinated effort, for the first time, to make sure certain candidates did not get their names onto the ballot paper. The matter is now subject to legal challenge.

No doubt the returning officers concerned will be called to give evidence under oath as to what written and oral briefing they were given prior to their exercise of the powers, and the person who gave the oral briefing may well be subpoenaed to clarify whether he gave advice on generalities or named specific candidates. In due course, a member of the judiciary will tell us whether the powers exercised actually existed and were used appropriately.

Legco president goes from villain to accidental hero in one week

The 70 duly – or perhaps not so duly – returned members then marched off to perform two simple tasks: to be sworn in, and to elect a president. There was a single candidate from the opposition camp and potentially three from the pro-administration side. Two of them – Michael Tien Puk-sun and Paul Tse Wai-chun – then withdrew, reportedly after being told by the liaison office not to oppose their favoured candidate, Andrew Leung Kwan-yuen. It is difficult to think of a more blatant breach of the provisions in the Basic Law about Hong Kong people ruling Hong Kong and mainland bodies not interfering.

The result of these actions is that separation of powers is creaking under the strain

As an aside, it is possible that Leung was still technically British at the moment of election and therefore ineligible to stand. This matter may also be tested in the courts. If it is found that he was still a British national, then any of his actions or rulings would be invalid.

Subject to that proviso, Leung nonetheless proceeded to make his own rulings on the validity of the previous day’s oaths. He concluded that five people needed to retake them (thus overruling his own clerk) but he also ruled that the five concerned should have a second chance to take the oath again.

What was wrong with the original oath-taking efforts? Three were relatively minor breaches (one missed out the words “Hong Kong”; one left large pauses between each word, and so on) but the two Youngspiration candidates made clear their opposition to Hong Kong being part of China. One even swore. The most controversial parts of their oaths were their use of the term “Cheena” to refer to our country. Some considered this too close to “Shina” a derogatory term used by the Japanese during the period in the second world war when they occupied large areas of China.

Whether or not the pair were aware of the full implications of the term they used – they are both young, and Chinese history was dropped as a subject in local schools a long time ago – their behaviour was clearly unacceptable and rather childish.

Judicial review on oath-taking is proof that Hong Kong’s system of checks and balances is sound

But consider the subsequent behaviour of their supposed elders and betters: the government has sought a judicial review of the president’s decision (their own man, remember) to give them a second chance; and to prevent them taking that chance before the full hearing of the government’s case – Mr Justice Thomas Au Hing-cheung accepted that the government had an arguable case, but rejected the request for an interim injunction – pro-government members of Legco then implemented exactly the same tactic they had spent four years criticising their opponents for, namely calling for a quorum count and leaving the chamber.

The combined results of these different actions is that some members elected by Hong Kong people have been barred from taking their seats, the government is challenging the decision of its own choice for president and trying to use the judiciary to overturn it, the pro-government majority in Legco is in effect defying both the man they have just voted for and a court ruling that a second oath is permissible, and the separation of powers is creaking under the strain.

Our message to Zhongnanhai should be clear: thank you very much for the circus, but why did you have to send in the clowns to run it?

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