Hong Kong election disqualification for those who lobby against one-party rule a ‘betrayal’ to city values

Top legal experts say legislators should not face being disqualified for expressing pro-democracy views, rebuffing earlier comments from a local member of the National People’s Congress Standing Committee

PUBLISHED : Monday, 19 March, 2018, 8:53pm
UPDATED : Tuesday, 20 March, 2018, 12:08am

Hong Kong legal experts said on Monday that lawmakers should not run the risk of disqualification for expressing pro-democracy views, rejecting a warning by the city’s sole member of China’s top legislative body.

Senior barristers Ronny Tong Ka-wah, Philip Dykes and Professor Johannes Chan Man-mun spoke just days after Tam Yiu-chung, a member of the National People’s Congress Standing Committee, warned in an exclusive interview with the Post that Hongkongers who chant slogans urging an end to “one-party dictatorship” run the risk of being barred from future elections.

Tam’s remark came after the National People’s Congress passed constitutional amendments that further underlined the undisputed authority of the Communist Party.

Chan, former University of Hong Kong law dean, called the remark a clear “betrayal” of the city’s core values, as Tam was “close to saying that … the party and the central government are beyond criticism”.

Pro-democracy activists and legislators also said the warning and the amendments would not stop them from calling for political reforms on the mainland.

Asked about Tam’s comment, Chief Executive Carrie Lam Cheng Yuet-ngor said she did not “understand why that association has to be drawn” between Beijing’s rule and local elections.

“The qualification of individuals for contesting in the Hong Kong Legislative Council [elections] has to be considered in accordance with local legislation.”

Since the Tiananmen Square crackdown on June 4, 1989, Hong Kong has hosted an annual candlelight vigil to demand the “end of one-party dictatorship” and accountability for the massacre.

Richard Tsoi Yiu-cheong, vice-chairman of the vigil’s organiser, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, said they would continue with their campaign.

In the run-up to a Legco by-election this month, Demosisto’s Agnes Chow Ting and two other hopefuls were barred from running, with election authorities citing calls for the city’s “self-determination” as effectively asking for independence.

Asked if hopefuls would face a similar fate for calling for an end to “one-party dictatorship”, Tong, a former Bar Association chairman, said Basic Law Article 104, the relevant provision in the city’s mini-constitution, stated that public officers, including legislators, had to swear to uphold the Basic Law and pledge “allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China”.

“It did not mention the constitution. It implied that we need to pledge allegiance to the ‘one country, two systems’ [principle] under the Chinese constitution, but not to the Communist Party,” he said.

Tong now sits on the Executive Council, the city leader’s cabinet of policy advisers.

“The one-party dictatorship is very much part of the socialist system and policies, which are expressly stated not to be practised in Hong Kong under Article 5 of the Basic Law,” Chan, the professor, said.

The article states that “socialist system and policies shall not be practised” in Hong Kong, and “the previous capitalist system and way of life shall remain unchanged for 50 years” from the 1997 handover.

Bar Association chairman Philip Dykes, speaking in his personal capacity, rejected Tam’s warning, saying that he failed to see any disagreement with the Chinese constitution would render any legal consequences in Hong Kong, and it should be up to legislators or candidates to exercise their freedom of expression.

The motion debate has been discussed almost every year … It would be a serious blow to Hong Kong’s freedom of speech if it is not allowed
Legco member Leung Yiu-chung

Speaking in Beijing on Monday, NPC deputy Cheng Yiu-tong declined to comment on Tam’s warning, but said it was “unrealistic” for people to call for an end to the Communist Party’s rule.

In the interview, Tam also suggested that lawmakers should not be allowed to debate ending the “one-party dictatorship” in Legco.

Since 1997, the pan-democrats had presented a motion calling on lawmakers to “not forget the June 4 incident”, but the motion was not discussed in 2012 and 2016 because the legislature ran out of time.

In 2007, Legco president Rita Fan Hsu Lai-tai blocked discussion of the motion after lawmaker “Long Hair” Leung Kwok-hung tried to insert a clause calling for an end to “one-party dictatorship”. Lawmaker Martin Lee Chu-ming’s version, without the phrase, was eventually put forth for discussion.

Fan’s successor, Jasper Tsang Yok-sing, had allowed pan-democrat lawmakers to move amendments with the controversial phrase in 2009.

Pan-democrat lawmaker Leung Yiu-chung said Legco president Andrew Leung Kwan-yuen must not stop lawmakers from presenting similar motions or amendments.

“The motion debate has been discussed almost every year … It would be a serious blow to Hong Kong’s freedom of speech if it is not allowed,” he said.