Veteran democrat Emily Lau brought their current dilemma into public view recently when she cautioned all her pro-democracy colleagues to “think twice” about contesting the next Legislative Council election. It was to have been held in September last year but was postponed, ostensibly due to the coronavirus pandemic, and has now been rescheduled for this coming December.
Lau suggested that all aspiring pro-democracy hopefuls whatever their party affiliation should sit this one out due to the many “traps” that were being laid for them under Hong Kong’s new national security regime.
The context of her warning is Hong Kong’s National Security Law promulgated by Beijing last summer, on June 30, and the revamp of the city’s election system, also mandated by Beijing and announced on March 30 this year.
The pandemic provided a convenient excuse, allowing time for a sweeping overhaul of Hong Kong’s local lawmaking body that will reduce pro-democracy representation to a bare minimum. Probably such candidates, who in past Legislative Council elections habitually received a majority of the popular vote, will be able to win no more than about a dozen seats, although the council itself will be enlarged from 70 to 90 representatives. Democrats had already chosen their September 2020 campaign slogan — for a “35 + 1” majority.
A relatively concise guide to the culture of entrapment inherent in this new regime, but not evident at first glance, has now been provided by yet another piece of legislation. It has just been issued locally, this one the work of Hong Kong’s own legislature, and is in the nature of a follow-up effort — to try and nail down any remaining loose ends so that no errant elements can slip in unnoticed.
The aim is to ensure that Beijing’s new election designs can achieve their intended purpose. That means rewarding only “safe” candidates , or true “patriots” in Beijing terminology, while the unfamiliar rules are being imposed on a voting public that is not celebrating at the prospect.
This new law is known as the Public Offices (Candidacy and Taking Up Offices) (Miscellaneous Amendments) Ordinance, 2021, or Ordinance No. 13 of 2021. It was passed by the Legislative Council on May 12, with only one opposing vote. This was cast by contrarian Cheng Chung-tai, the one pro-democracy legislator remaining in the council. For reasons of his own, Cheng refused to follow all the others when they resigned in protest last November over the mounting impositions.
The current “provisional” council is sitting for an extra year with only pro-establishment councillors in attendance, plus Cheng and one non-partisan who tries to hold himself above politics. The election calendar for this year includes formation of the all-important Election Committee in September, with the delayed Legislative Council election in December. The Chief Executive selection process will be concluded on schedule, in March 2022.
The new law is all about oath-taking. On the face of it, the idea seems harmless enough and even redundant. It also seems a minor matter after the draconian security law and electoral system juggernaut. Together those two initiatives have already spelt the end of Hong Kong’s decades-old democracy movement that began to take shape in the 1980s, soon after the plan for the return to mainland rule was announced. But this additional law is actually the most devastating of all because it follows up with such a comprehensive after-bite.
As a routine exercise, all leading public officeholders and aspiring election candidates have been required to sign various forms. These affirm allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, and pledge to uphold Hong Kong’s Basic Law as promulgated by Beijing in 1990. The Basic Law was designed to serve as Hong Kong’s constitution for at least 50 years after the 1997 transfer from British to Chinese rule.
Until 2016, the name signing was treated as routine and created little controversy. This began to change with the growth of the new “localist” trend that gained strength after the 2014 Occupy Movement failed to win any political concessions from Beijing — on the issue of “genuine” universal suffrage elections. A few aspiring fringe candidates did refuse to sign a new confirmation form reiterating the basic loyalty pledge. This was added in preparation for the September 2016 Legislative Council election.
But the refusal was not necessarily grounds for disqualification. And one champion of the new more insistent demand for “genuine” local autonomy, Edward Leung Tin-kei, was not allowed to contest even though he had signed the new confirmation form. His vetting officer reasoned that his pledge was not sincere, and he also had charges pending for his role in the early 2016 Mong Kok riot, for which he is now serving a six-year jail term.
Several successful 2016 candidates then decided to improvise their oaths of office during the swearing-in ceremony. Thereafter the die was cast for oath-taking and Hong Kong’s new law, just passed on May 12, derives from the saga that followed.
Although several more newly elected legislators had also improvised their oaths during the October 2016 ceremony, six were selectively and retroactively singled out to serve as examples. All eventually lost their seats after an appeals process that went on for years.
Additionally, in November 2016, Beijing issued a formal Interpretation of Hong Kong’s Basic Law Article 104, on the subject of oath-taking. At that time, pro-democracy legislators contemplating the text of Beijing’s Interpretation remarked that actually, they all could be held in violation of its strictures. In fact, they all are now subject to the same constraints under the new oath-taking law.
Especially ominous in 2016 was the proviso that the oath of office was a “legal pledge made by the public officers, and is legally binding. The oath taker must sincerely believe in and strictly abide by the relevant oath prescribed by law. An oath taker who makes a false oath, or, who, after taking the oath, engages in conduct in breach of the oath, shall bear legal responsibility in accordance with law.”
All of those responsibilities are now being activated by Hong Kong’s May 12 law. it follows from Article 6 of the new National Security Law that says all citizens must safeguard China’s sovereignty, unity, and territorial integrity. Article 6 also specifies that those who contest elections and assume public office must confirm in writing or take an oath pledging to uphold the Basic Law and Hong Kong’s status within the People’s Republic.
The new oath-taking law
The new ordinance gets off to a clear start with a statement by Chief Executive Carrie Lam introducing the contents. Since they address virtually every aspect of Hong Kong’s democracy movement that has been giving her headaches for the past five years and more, she must have taken no little satisfaction in being able to write an end to them all.
According to her introduction, the new law comprises amendments to multiple existing ordinances in order: to EXPLAIN the meaning of the reference to upholding Hong Kong’s Basic Law and bearing allegiance to the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China (PRC); and to REQUIRE that District Councillors must henceforth take the oath of allegiance, which was not previously required.
The new amendments also EXPLAIN the consequences of declining or failing to take the oath; ADD new grounds for disqualifying candidates for Legislative Council and District Council elections, as well as for disqualifying them from being elected and holding office; REMOVE the time limit during which disqualification proceedings can be brought by the Secretary for Justice; PROVIDE for the suspension of such persons; ADD new grounds for disqualifying candidates from being nominated for the position of Chief Executive, and so on.
Some Key Explanations: Part Two
In anticipation of this law, officials have been promising that it would contain a list of do’s and don’ts so that everyone would know the rules of the new national security game, if for no other reason than to be able to avoid violating them. Part Two of the new ordinance contains this list, phrased in terms of upholding Hong Kong’s Basic Law and bearing allegiance to the HKSAR of the PRC.
Official observers in Beijing and Hong Kong have obviously been keeping careful notes on all the creative political ideas that have taken hold here in recent years. Part 2 of the new law targets them all in language both tautological and specific. It is aimed at the perpetrators and their supporters, for all to understand and as a warning to all.
References to upholding the Basic Law and bearing allegiance to China mean upholding the constitutional order of the HKSAR established by the Chinese constitution and by Hong Kong’s Basic Law. The references also mean upholding national sovereignty, unity, territorial integrity, and the national security of the People’s Republic.
The references mean: that Hong Kong is an inalienable part of the PRC, that the central authorities in Beijing exercise governance over Hong Kong, that the political structure of Hong Kong must be safeguarded, and the “one-country, two-systems” principle upheld.
Uphold means “to intend to genuinely and truthfully observe, support, maintain, and embrace and to do so both in words and deeds.
A person does not uphold or bear allegiance by carrying out activities, or intending to do so, that endanger national security including the activities specified in Article 23 of Hong Kong’s Basic Law. This is the article that Hong Kong has successfully resisted since 2003.
Article 23 says Hong Kong must enact laws prohibiting acts of treason, secession, sedition, subversion, theft of state secrets and foreign interference. Since Hong Kong has failed to fulfill its responsibilities in this respect, the central government stepped in and got the job done by promulgating the National Security Law as an interim solution. Hong Kong’s obligation to pass its own version of the Article 23 legislation still stands.
A person also does not uphold or bear allegiance by advocating or supporting Hong Kong independence, or Hong Kong state-building, or by participating in organisations that so advocate.
Also beyond the pale of proper behaviour is the promotion of self-determination and referendums, and advocating that Hong Kong be transferred to another country (which some did); and soliciting interference by foreign governments or organisations in Hong Kong affairs (which many have done, repeatedly).
Additionally, targeted for special mention are all the many activities associated with pro-democracy legislators, candidates, and campaigners including especially those related to last year’s informal straw poll or self-administered primary election.
All the participants in that exercise including the candidates and organisers are now accused of subverting state power under the new National Security Law. Over 50 participants were arrested in January. Ultimately a few were granted bail, but most are remanded in jail awaiting trial dates that have yet to be announced.
The crimes of these suspects are now specified, which they had not been before, signifying the retroactive nature of their punishment, at least in terms of publicly available information about the meaning of the new rules. The National Security Law, which the primary election participants are accused of violating by committing the crime of subversion, was promulgated on June 30, 2020. Their primary election was months in the planning but went ahead as scheduled during the weekend of July 11-12.
According to its Article 39, the NSL itself is not retroactive and is supposed to apply only to acts committed after its entry into force, for the purpose of conviction and punishment.
Further on the new rules specified in the new oath-taking law: not upholding and not bearing allegiance refer to acts that have a tendency to undermine the political structure of Hong Kong’s executive-led government. Such acts include attempting to compel the Chief Executive to change a policy, threatening the government or rendering it incapable of performing its duties or forcing the Chief Executive to step down.
Yet all of these possibilities are listed in Hong Kong’s Basic Law, which was the authority cited for the July primary election and democrats’ drive to win a 35+1 majority afterwards, in the September 2020 Legislative Council election. So how could the primary election participants know they were committing the crime of not upholding Hong Kong’s Basic Law and subverting state power?
But if these standards as specified in the new loyalty-oath law are to be used in judging who is and is not fit for the purpose of contesting the coming series of elections, then the game is well and truly over for Hong Kong’s current generation of pro-democracy campaigners. This is because there are few among them who can claim to be innocent of such behaviour. In fact, the law seems to have been written with the express purpose of disqualifying them all.
Hence it follows that the official intent is also to disenfranchise the majority of the voting public that has routinely favoured pro-democracy candidates. These voters were responsible for giving democrats their landslide victory in the November 2019 District Councils election when democrats won majorities on all but one of the councils.
The popular mandate carried over to the informal primary election in July 2020 that democrats organised to winnow their field of candidates in preparation for the September 2020 Legislative Council poll. Over 600,000 people came out to endorse democrats’ strongest and most outspoken candidates — the very same who are now sitting in jail awaiting trial on suspicion of subverting state power for having taken part in that exercise.
Nevertheless, all this is really just in the nature of an introduction to the new rules. The concluding proviso of Part 2 notes cryptically that “this section does not limit the meaning of a reference to upholding the Basic Law and bearing allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.”
Some Key Administrative Details: Parts Three, Four, and Five
Part Three of the new law mandates that judicial officers, members of the Chief Executive’s advisory Executive Council, Legislative Council, and District Councils must all take the loyalty oath as soon as possible after the start of their terms — all to be administered by the Chief Executive or a person authorised by the Chief Executive.
Instructions on declining to take the oath are clearly laid down, reflecting the 2016 controversy when newly elected Legislative Councilors improvised the wording in various creative and insulting ways. A person is regarded as declining or neglecting to take the oath if he/she deliberately changes the wording of the formal oath or behaves in ways deemed not sincere or solemn while reciting the oath. An oath so distorted may not be retaken.
Part Five specifies that the power of the Legislative Council to conduct business is not affected by vacancies in its membership or suspension of a legislator’s functions and duties or a defect in his/her election as a legislator. Thus, the entire democratic caucus may be absent as it currently is, but the business of lawmaking goes on.
A person who is disqualified from being nominated as a candidate for office, or from being elected, or holding office, cannot contest another election for a period of five years afterward.
A disqualified person may appeal, but his/her functions and duties are suspended until the court decision becomes final, and the person must not enjoy any corresponding entitlements during the period of suspension.
If it is approved that a person is disqualified from acting as a member on a certain date, the person ceased to be entitled to any corresponding entitlement beginning on that date. This follows from the 2016 controversies that continued after the government tried to reclaim funds already issued and spent by legislators-elect before the term began, to hire staff and set up their offices.
Still, this new law for all its attention to detail only forbids acts, retroactively, that have already been committed. Unfortunate it is for everyone associated with the July 2020 primary election exercise to be punished, after the fact, for actions they had no way of knowing were subsequently to be declared state security offences.
But it is perfectly possible to imagine some future agitation that declares its allegiance to the central government in Beijing and veneration for Hong Kong’s Basic Law – while still continuing to demand a genuine universal suffrage election, which is actually where they all began in 1997.
How might future Beijing leaders respond? Would they be able to adapt their definition of “patriot” to the revolving demand? Or will they still insist on declaring the law is whatever they say it is and on forcing everyone to accept the vindictive discipline of one-party dictatorship?
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