Hong Kong district councils: The rule of law and the rule of Carrie Lam

The rule of law, says the relevant government information sheet, is one of Hong Kong’s greatest strengths and the cornerstone of its success. “Any perceived threats to the integrity of Hong Kong’s legal system have been vigorously debated and analysed,” it says. OK. Analyse this.

Court of Final Appeal. File photo: GovHK.

Come with me, gentle reader, to a minor by-way in the great web which is the Hong Kong legal system. Chapter 547 of the Laws of Hong Kong (it’s a long book) is called the District Councils Ordinance. Strolling down it, we pass the freshly modified and now quite long Clause 24, which includes the disqualification of members whose patriotic credentials have failed to pass muster.

And we pass Clause 27, which gives the Chief Executive power to decide the date of general elections, within limits.

And so we come to Clause 32, which concerns by-elections to fill vacancies, and goes like this: “If a vacancy arises in the office of an elected member, the Designated Officer must, by notice published in the Gazette, declare the existence of the vacancy within 21 days after becoming aware of the vacancy.”

The following clause states what happens next: (1)The Electoral Affairs Commission must, in accordance with regulations in force under the Electoral Affairs Commission Ordinance (Cap. 541), arrange for a by-election to be held in the following circumstances and not otherwise —(a) on the making of a declaration as to the existence of a vacancy in the membership of a District Council under section 32.

That is it, an admirably concise piece of legal draftsmanship. Notice what is there: the verb is “must”, not “may”. And what is not there: the procedure is completely automatic, with neither the Designated Officer nor the Electoral Affairs Commission having any discretion in the matter. There is no mention of, and no role for, the Chief Executive.

by-election results 2018 — Pro-democracy camp candidates and activists during the 2018 by-election. File Photo: Kris Cheng/HKFP.

Now, recently resignations from District Councils have been falling like rain. More than half of the winners in the last general election to the councils have resigned, fled, or been jailed pending trial. You would think, having visited the law on the subject, that by-elections would be pending in droves. But this is not the case.

What has our leader to say on the subject? Ms Lam told one of her weekly press briefings that it would be “almost impossible” to hold all the by-elections before the administration’s term ends in June. Why the administration’s term is in any way relevant she did not say. No doubt the next administration will be equally adept at fixing elections.

Hong Kong, said Ms Lam, would be holding three sets of elections in the next ten months, for the Election Committee, the Legislative Council and the Chief Executive. “We do not feel there is room or time for another set of by-elections…”

As a practical excuse this is fairly pathetic. Elections to the Election Committee are not what they were: the electorate has shrunk by about 90 per cent under recent changes. Moreover elections by the Election Committee are not the government’s problem: it will have a Convenor to organise such things. Many of these elections are likely, given the new arrangements for screening candidates, to be uncontested.

law books legal justice legislation legislative legal analysis — Photo: Pixabay.

The only ones in which most people have any chance of a vote is for 20 seats on the Legislative Council. But given the conditions attached to being a candidate it is quite likely that many of them will be uncontested, or if they are contested attract few voters.

In any case this is beside the point. The law is the law. Ms Lam has only herself to blame for the flood of resignations because it is a response to the government’s threat that any district councillor who is unseated for failure to take the loyalty oath, or disqualified from taking it, will be required to pay back all the pay and allowances he or she has received since the 2019 election.

As this implies a bill for about HK$1 million per head it has prompted a lot of councillors to leave politics. Three district councils are said to be down to three members each.

Yet the threat is legally dubious and morally indefensible. Ms Lam said that the question would be handled “in accordance with law and there would be no leniency.” This suggests a distressing deficiency in the quality of the government’s legal advice. “Leniency” has nothing to do with it. It is not a criminal matter, simply an issue of whether the money was paid in error and whether, if it was, the government has the legal right to recover it.

The regime’s lawyers seem to have mixed things up here. When the first disqualifications were made from the Legislative Council it was on the basis that the oath of office which they had taken was not done properly for one reason or another, and consequently was invalid. So those unseated had never been councillors and the Government was entitled to its money back, although whether it actually recovered very much is doubtful.

The case of district councillors is quite different. They were not required to take an oath when they took office. The Ordinance does not say when a disqualification should be regarded as taking effect. In the rather similar case of an election petition to the High Court, though, it does say that if the petition is upheld then the removal of the erroneously seated councillor takes effect from the day of the decision. It is not backdated to the day of the election.

In any case, using this as a threat to blackmail inconvenient councillors into resigning is a deplorable descent into Mafia-like behaviour. They were elected and took up office in good faith, following the law in force at the time. There is no suggestion that the money was mis-spent.

Well, except for a newspaper article by Regina Ip, which offered “Tales abound of actions and resolutions, bordering on the absurd, if not criminal, made by the district councils dominated by self-proclaimed democrats.”

Wonderful. Are we to be offered examples? Well, two district councillors of the fresh crop displayed in their office a notice saying “members of the blue camp and dogs not allowed”, which was tactless of them, but not an “action or resolution of a district council.”

Then we are offered another individual “offence”: one district councillor posted on her billboard a poster suggesting that China was responsible for spreading coronavirus to the world, not an extreme view in some places.

Last we have an incident in which a District Officer was besieged in her office by councillors incensed by one of her rulings; regrettable, no doubt, but not an official council activity.

Possibly sensing that this is a bit thin as a stick with which to beat 17 pan-democrat dominated district councils, Ms Ip then descended into generalities: “Since these bogus democrats took over, funding for popular community activities was axed, and local public works projects approved by their predecessors overturned. Yet funds were approved by several district councils to a pro-independence organisation, Societas Linguistica Hongkongensis, to organise competitions in ‘essay-writing’ in Cantonese.”

Chief Executive Carrie Lam meeting the press on June 22, 2021. File Photo: GovHK, via video screenshot.

This may have passed by the education in democracy which allows Ms Ip to discern “bogus democrats.” But she should really get her head round the idea that newly elected councillors are entitled to the view that they know what activities are popular, and that their predecessors’ views on the matter cannot be regarded as the last word. And if asked to offer examples of municipal depravity, Cantonese essay-writing competitions don’t really count, even if they are organised, as Ms Ip alleges, “to keep out mainland cultural influence.”

Anyway, there we are. Hong Kong cherishes the rule of law but the law means whatever Ms Lam finds convenient. The government, she said, would “seek other ways to gauge public opinion, such as the area committees appointed by the Home Affairs Department.” And “officials will approach issues through the work of district management committees.” In other words, the government will listen only to people it has itself selected.

The Hong Kong government’s view of public opinion can be briefly put in a phrase once used of the old Hollywood studios: “If you’re not praising them they’re not listening.”

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