Against all the local norms of proper public behaviour, Hong Kong’s pro-democracy activists have yet to suffer serious consequences for their defiance. Officials and other conservatives have always maintained, going back to colonial days, that the general public values social harmony above all else.

That old assumption has always been beloved by Chinese rulers and elders … probably because they discovered ages ago that social harmony made their lives easier and power more secure. But those old ideals have been sorely tried in Hong Kong since its 1997 return to Chinese rule.

File Photo: Stanley Leung/HKFP.

For every big upsurge of political disharmony, as Hong Kongers have tried to push back against one mainland political intrusion after another, popular sentiment has not turned against the purveyors of dissent and opposition. On the contrary, public approval has grown.

The most recent episodes of defiance were the street blockades that disrupted city life for two months during the 2014 Occupy protests, and the Lunar New Year violence in Mong Kok earlier this year.

Afterward, the perpetrators and champions of those disruptive events were rewarded in local elections that by official reckoning were supposed to give effect to public disapproval. Voters did just the opposite.

During the recent Legislative Council election campaign, Hong Kong’s Chief Executive Leung Chun-ying and pro-Beijing politicians tried to rally the public with cries of “vote them out.” The reference was to all the pro-democracy Legislative Councillors who had defied him by vetoing his Beijing-designed political reform bill last year … and to all dissident trouble-makers and rioters everywhere.

Some of those councillors were voted out but not by loyalists. Instead, even more trouble-makers, and friends of the rioters as well, were rewarded by voters on September 4.

The newcomers had pledged, if elected, to carry their street protests into the Legislative Council chamber and several of them did just that, on the very first day as soon as the first session was called to order. The proceedings were consequently brought to an abrupt halt and business-as-usual has yet to resume.

But the full consequences will be registered in many other ways.  Once again officials and elders are predicting a bad end for the perpetrators … who had calculated beforehand that what they aimed to do was, like Occupy and Mong Kok, another risk worth taking.

Recap: The oath taking

Several councillors added some extras to the formal oath that all must take at the start of each new term.  All councillors, including both those re-elected and new comers, must pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, and pledge to uphold Hong Kong’s Basic Law constitution.

Baggio Leung and Yau Wai-ching. File photo: HKFP

The two at the centre of the storm that followed are Baggio Leung Chung-hang and Yau Wai-ching, both from the new post-Occupy political party Youngspiration.

While taking their oaths, both displayed banners with the words “Hong Kong Is Not China” printed in English. They also added to the standard phrases others declaring their loyalty to the “Hong Kong nation.”

And as if that wasn’t enough, they pronounced the word China in a way that sounded like “Chee-na,” mimicking the derogatory pronunciation used by the Japanese during their mid-20th century occupation. As a further insult, Yau called it the “People’s Re-fucking of Chee-na”.

They could have put their point across without being quite so insulting but they did it deliberately. Both know their Chinese history and both have grown up in post-colonial Hong Kong. So they must have foreseen the result, although the full potential implications took a couple of weeks to emerge. If the powers-that-be have their way, the Youngspiration pair will not be given a second chance.

They have told their Facebook friends that contacts in the Registration and Electoral Office say that staffers have been told to prepare for Legislative Council by-elections. Since no seats are currently vacant, that must mean … if the hearsay is true … that the government’s expects to succeed in its effort to remove them.

Although the offenders haven’t actually said so, such a result might be just what was intended: to mobilize a single-issue campaign as the most effective way of protesting mainland political intrusions. The issue of Hong Kong autonomy could then become the sole focus of public attention in a way that was not possible during the last conventional Legislative Council election campaign.

Although maybe they weren’t anticipating something quite so soon. Leung has said that he doesn’t expect to be allowed to contest the next, 2020, Legislative Council election due to the agitation he’s planning to undertake in the meantime.

Added to the costs and benefits of losing their seats immediately, however, is the method chosen by Chief Executive Leung Chun-ying to try and make sure they do.

Calculating all the risks

Democrats have been troubled at many points since 1997 by the recurrent insistence, from mainland officials and local loyalists, that it is the duty of the judicial system to support the executive. Democrats (who might otherwise be designated as “two-systems” purists) see Hong Kong’s judiciary as the last bastion of defense against Beijing’s “one-system” encroachments.

Such purists can be defined as those who took literally Beijing’s original promise of “one-country, two-systems,” and believed it meant autonomy for the Hong Kong system. By their standards, Hong Kong’s executive and legislative branches have essentially been lost already.

Such people take refuge in the separation-of-powers principle that they think is guaranteed by Hong Kong’s post-1997 Basic Law constitution. It isn’t, say loyalists. Maybe not in so many words, reply democrats, but the principle is. They point especially to the Basic Law’s Article 85 that says Hong Kong courts “shall exercise judicial power independently, free from any interference.”

Some of them also say that CY Leung’s intervention in the loyalty-oath drama is yet another instance of trying to use the courts to support the executive … and hence another encroachment on the separation-of-powers ideal.

Andrew Leung and Kenneth Chen Wei-on
LegCo President Andrew Leung (left) and LegCo secretary-general Kenneth Chen Wei-on (right). File Photo: Stanley Leung/HKFP.

Initially, on October 12, the presiding officer did not accept the oaths of Baggio Leung and Yau Wai-ching, and refused to swear them in. The decision about what to do next was then left to the Legislative Council president. This position is filled by the councillors themselves. Since 1997, pro-establishment councillors have always been in the majority and have always selected one of their own. The person has also always been chosen only after consultation with Beijing’s liaison office here.

Since the previous president had just retired, it was the new man’s first day on the job, so to speak. He decided to allow the two councillors to retake their oaths at the next council meeting a week later.

On October 19, however, the two could not retake their oaths. By that time, official wheels had been set in motion. All pro-establishment councillors left the chamber as oath-taking began. They said they would not return until the two had apologized for insulting the Motherland. Since the council cannot meet without a quorum, the two could not be sworn in.

Ann Chiang
The pro-establishment lawyers staged a walk out before Leung and Yau could take their oaths. File Photo: Cheng Chung-tai via Facebook.

But this was just a delaying tactic adopted in coordination with the Chief Executive’s two-pronged attempt to bar Leung and Yau from ever taking their oaths again. The day before, on October 18, he had applied for a fast-track judicial review, asking the court to decide whether the two had already disqualified themselves permanently. The request was granted and a first hearing scheduled for November 3.

Additionally, the Chief Executive had asked for a temporary court order, barring the two from retaking their oaths until the judicial review decision had been formally handed down. This request was denied, which was what had set the quorum manoeuvre in action.

Since the court would not temporarily bar the two from retaking their oaths, pro-establishment councillors took care of it themselves, by walking out.

They had initially said they would not return for the oath-taking until the two apologized for their October 12 behaviour. After the Chief Executive called on the courts to help out, no more has been said about an apology or a second chance. The president backtracked and withdrew that offer.

Anxiety over a second oath-taking probably derived from the immunity that councillors enjoy for whatever they say during council meetings (Basic Law, art. 77). Once formally sworn in it would be much more difficult to remove them and they could use their privileged status to champion the cause of Hong Kong independence as they pleased.

The Chief Executive is asking the court for an up-or-down decision on whether the two can be disqualified permanently for having refused to take their oaths as required on the first try.   The Chief Executive’s request does not derive from the Legislative Council’s Rules-of-Procedure (Article 1) on oath-taking, which would be direct interference by the executive.

Instead, the request is based on Hong Kong’s Oaths and Declarations Ordinance (Section 21), which applies to all kinds of official oaths. Section 21 is also very mater-of-fact. It says that anyone who declines or neglects to take a required oath shall be disqualified from entering the office in question and if he/she is already in office then it must be vacated.

The Basic Law (Art. 104), requires all principal officials and legislators to take the same oath of allegiance, which government lawyers point out is intended to emphasize national sovereignty.

Youngspiration Baggio Leung Yau Wai-ching
Pro-democracy lawmakers escorting Leung and Yau into the Chamber. File Photo: Stanley Leung/HKFP.

The two legislators-elect had been told they could no longer enter the chamber. In defiance of this instruction, some (not all) pro-democracy councilors organized a protective chain to escort them past security guards for the next session on October 26.

After the two refused to leave and the crowd of journalists that had pushed in with them ignored the president’s call for order, he again adjourned the meeting while hundreds of angry loyalists outside the building clamored for satisfaction.

Hard to think of a case that could do a better job of challenging the separation-of-powers principle. The Chief Executive himself is demanding judicial support for a request to disqualify on political grounds legislators who were duly elected by voters on September 4.

The court must therefore reach a decision: that satisfies the official political demand for the legislators’ expulsion in order to satisfy Beijing’s insistence on respect for national sovereignty; that invalidates their election; and that upholds the separation-of-powers principle … all at the same time.

But the principle can be further undermined if the decision goes against the government by holding that Leung and Yau should be allowed to retake their oaths. In that case, the government could appeal in a process that might take years to work its way up to the Court of Final Appeal.

And in that event, warns Professor Lau Siu-kai, Beijing might well take matters into its own hands, sooner rather than later, thereby further eroding Hong Kong’s autonomy. Prof Lau is a pro-Beijing authority who reflects Beijing’s thinking but sometimes also only reflects what he thinks Beijing is thinking.

He said that if the Hong Kong government lost its case, the government would then be likely to throw down the gauntlet and issue the ultimate challenge by asking the Hong Kong court to request an interpretation of the Basic Law by the National People’s Congress Standing Committee in Beijing.

Anticipating the by-election campaigns

Beijing’s aim is to drive home the point that all pro-Beijing sources are now proclaiming in unison: these new ideas about Hong Kong independence must be nipped in the bud. But too many different kinds of people are now saying it’s too late. The ideas are circulating and cannot be stopped.

And especially the ideas can’t be stopped by ignoring the cause. Too many people are also saying that blame for the ideas must be shared by Beijing and its loyal Hong Kong Chief Executive Leung Chun-ying.

Another election campaign to replace councillors whose election was declared invalid because of their political defiance will only compound Beijing’s problem by focusing public attention on Beijing’s determination to impose mainland standards of candidate-selection.

The China Liaison Office.
The China Liaison Office. File

Many more examples can now be added to the list of conservative critics who came forward with wise words after last month’s election. They called on the government to accept its share of blame for democrats’ gains and conservative losses.

A similar admission has recently come from another unlikely source: HKU law school professor Albert Chen Hung-yee. Prof Chen is an authority on the Basic Law and is known for his precise legal renditions of Beijing’s perspective on legal matters.

He was arguing that the Chief Executive’s judicial review request was not provoking anything like a constitutional crisis. This is because the Chief Executive is not violating the separation-of-powers principle because he is not seeking to intervene directly in Legislative Council affairs.

The Oaths and Declarations Ordinance, Section 21, applies to all ranking officials in government not just legislators. He is only doing his duty as Chief Executive by seeing to it that the ordinance is not violated.

But then his interviewer moved on to the larger political controversies surrounding the swearing-in storm. It reflected Hong Kong’s growing political polarization … the new independence ideas were not likely to disappear … surely Beijing bore some responsibility … the central government might have made some concessions over political reform in 2014 but refused … Hong Kong’s Chief Executive is powerless against Beijing’s intransigence…

Professor Chen didn’t disagree with any of these pointed questions and went even further. He said Hong Kong is in a difficult place, the most difficult since the British left in 1997. Careful as always, he said he didn’t want to blame anyone. But then he stepped out of character and did. The central government is only concerned now with countering the idea of Hong Kong independence, he said.

hong kong independence july first
Hong Kong independence banner at the July 1st protest in 2016. File Photo: Stanley Leung/HKFP.

Still, he continued, there is a role that Hong Kong’s leader can play by trying to mediate between the two… democratic and pro-establishment loyalist… camps. There is a role for the Chief Executive to play in working for better relations with the Legislative Council. Leadership skills can make a difference. But in recent years, since 2012 when Chief Executive Leung Chun-ying’s term began, tensions have only grown worse.

Everyone now seems to understand where ultimate responsibility lies and what needs to be done. It follows that Hong Kong officials are not alone in preparing for the next election campaign.

And thanks to Beijing’s determination to try and snuff it out by expelling a pair of justly-elected legislators, the number one idea up for debate on the new campaign trail will be self-determination for Hong Kong.

Suzanne Pepper headshot

Suzanne Pepper

Suzanne Pepper is a Hong Kong-based American writer and Hong Kong resident with a long-standing interest in Chinese politics. In her book, 'Keeping Democracy at Bay: Hong Kong and the Challenge of Chinese Political Reform', Pepper addresses debates surrounding democracy and dictatorship. Her blog following Hong Kong's integration within the Chinese political system dates back to 2009.