By YY Kan
Following the Court of Final Appeal ruling that pan-democrats Au Nok-hin and Gary Fan have not been duly elected, the majority of the pro-establishment camp supporters seem to see this as a rare win. Articles and comments in pro-establishment camp media outlets mostly neglect the reasoning of the judges and focus on the substantial outcome of the case.
The case concerned the Legislative Council by-election in March 2018. Agnes Chow and Ventus Lau were disqualified and were denied a fair opportunity to respond by the returning officers.
The Court held that this error was “contrary to the principle of natural justice or procedural fairness.” While Au and Fan lose their seats, a Court of Final Appeal ruling is established at the same time, banning election officers from abusing their powers in this way in the future.
Although it is unfortunate that the two serving councillors have to lose their seats, it is the only outcome that curbs the political vetting powers of the government; such an election declared valid would create a catastrophic legal precedent.
The pro-establishment camp is surprisingly supportive of this judgment. They seem to be glad that Au and Fan are gone, neglecting the Court’s restriction on the government’s political vetting powers. Almost none of the pro-government media have noticed that under this ruling, Rebecca Chan Hoi-yan will most likely also be declared not duly elected, because former legislator Lau Siu-lai was disqualified in the same manner in that by-election.
This exposes the short-sightedness and the lack of thought put in by many of these supporters to the reasoning behind the judgment.
According to recent polls conducted by the Hong Kong Public Opinion Research Institute, only 9.9 per cent of the population are satisfied with Chief Executive Carrie Lam, whilst 27.2 per cent are satisfied with the police, almost tripling the support of Lam. There are many more people that are anti-violence than people that support the current government.
This suggests that within the 41 per cent that voted for pro-establishment camp candidates in the last District Council Elections, those who support the government are actually in a minority. This means that the government is currently relying on supporters who are primarily driven by an objection to violence and disruption, rather than genuine support for its rule.
This reveals a shocking truth: the amount of support the government has is even smaller than we thought.
Besides its genuine supporters, it enjoys the support of those who are simply against disruption, many of whom are short-sighted and refuse to think about the underlying reasons for it. This might bring some hope for the pro-democracy movement.
In some sense, government supporters are naive rather than cold-blooded. For now, they are concerned by their initial perception of pro-democracy protesters being disruptive, as it would then be reasonable to conclude the police are merely maintaining law and order.
Another reason would be the propagandistic approach pro-establishment media outlets take. A clear example would be the absence of any mention of the abuse of power by the government. Pro-democracy camp supporters are largely aware of protesters’ mistakes, but choose to adopt a “no snitching and no dissociating oneself from the protesters” policy.
Pro-establishment camp supporters may eventually become aware of the full picture. Once the disruption-causing perception of the protesters has been undermined, the already weakening support of the government will fade away. After all, we should not underestimate the amount of resentment against the government, especially among those in their own camp.
Setting all that aside, we still should not feel too hopeful on the disqualification cases. Even with the current ruling in place, candidates can still be disqualified. The court has only compelled the government to let candidates argue their case, it does not limit the scope of discretion of the returning officers.
The law only intervenes when a decision is “so unreasonable that no reasonable person acting reasonably would have made it,” which is a very high bar to reach.
YY Kan is a second-year LLB student at the King’s College London Law School, UK.