According to the South China Morning Post’s calculations, at least nine more Hong Kong Legislative Council members could be at risk of disqualification for retroactively incorrect oath-taking. That’s in addition to those already being barred from office.
In some ways, it would be great if this happened: the disappearance of over a dozen popularly elected (and several quite smart) members would conclusively expose the Legislative Council as a rigged rubber-stamp body, and deprive the whole political structure of any remaining shreds of credibility. More likely, the Communist Party will hope that by axing a few, it can intimidate the others into playing along with an increasingly Mainland-style fake representative system. (If they are doing their United Front work diligently, Beijing’s local officials will have sorted these enemies into different groups to be expunged, turned against one another, or possibly tamed and lured into submission.)
For a detailed breakdown of how the government can take advantage of a neutered legislature, see here. But the powers that be are in a quandary. In theory, they can ram through ultra-sensitive measures like Article 23, national education or quasi-universal suffrage – but only at the risk of provoking street protests. And it would dash hand-wringing Chief Executive Carrie Lam’s already-desperate hopes of uniting everyone behind livelihood issues. In their obsessive determination to attack and crush splittists, the Liaison Office enforcers are making Hong Kong less governable rather than more effectively authoritarian.
Oath-Gate is doing even greater damage to Hong Kong’s legal system – making it clear that Beijing is willing and able to re-write the law and apply it retroactively for purely political reasons. While idealists and purists quoted by HK Free Press might complain, the Progressive Lawyers Group’s Kevin Yam is surely realistic when he says local courts are ultimately powerless. This is how a one-party state and Leninist dictatorship uses the law.
Two questions come to mind.
First: is there still any reason for critics of government in Hong Kong to engage in formal, constitutional politics? Even the old traditional Democratic Party moderates must be wondering whether constructive participation within ever-tightening rules makes sense. Why lend the system credibility as Beijing makes it less representative?
Second: if the Communist Party can trash Hong Kong’s legal principles over lawmakers’ oaths, when else might it, on a whim, rewrite the law and hijack the courts? The unofficial-official reassurance is that splittists crossed a ‘red line’, and Beijing will continue to respect rule of law on this side of the border in all other respects (leaving aside occasional can’t-be-helped abductions). But having done it this sweepingly on this occasion, and finding it so easy and effective to impose ‘rule of man’ here, can a paranoid one-party dictatorship restrain itself in future?
The last paragraph is really good. Scary! Thanks for your blog.
Always the question arises.
Are Hong Kong people getting what they deserve?
Do timorous greedy selfish mercantile Philistines (80-90%) deserve the protection of democracy?
I do feel sorry for the minority though. The non-Liberals. The Socialists. About fifty of them.
The Pro-Dems need to unite under a single party and elect a popular leader who supports one country two systems. Don’t cross that red line. Win back your seats and play grown up politics – challenge, expose and hold to account. This shouldn’t be difficult considering the clowns in the Government and United Front. You may find yourself winning a lot more seats perhaps forcing Beijing to be a bit more flexible.
However if the worse happens don’t run off the courts, that horse has bolted. Resign on mass, Geographical and Functional Pro-Dems alike, and refuse to take part in any subsequent by elections. Perhaps the threat of it alone will force Carrie to run off to Beijing asking them to be more flexible.
The charade has gone on for 20 years and it’s clear that the plan is it was to run for 30 more years hence the Pro-Dems need to make a deal. Full democracy ? fuck off it isn’t going to happen. Proportional seats (percentage of votes in geographical constituencies) on the Executive Council and ministerial seats (appointed by Beijing) perhaps are possible which hopefully will lead to better governance.
Nice link to Jason Ng’s eminently clear article.
I wouldn’t give up entirely on the legal system just yet. It takes just one judge to speak out and, ideally, counter one of Peking’s most egregious interventions. True, nasty things might then happen to her/him, but that is what they’re paid for.
What must be going on in Carrie’s mind — and indeed other people’s — is whether it can all tenuously hold together for five years/their lifetimes: “it” being the trains running on time, banks not sequestering funds too often, the ICAC not being reabsorbed by the police, and the Internet not being shut down.
Next Media sold to some shady character, democratic elected lawmakers ousted, Winnie the Pooh forbidden on the mainland, what is next? Feels like Germany in the thirties.
Does the threat of street protests even scare these guys anymore? They have already dealt with the second worst case scenario. The roads blockaded for months, followed a year later by an honest-to-gods riot. The experience may have given Beijing the confidence to provoke large scale civil unrest in the knowledge that they can handle it without anybody getting killed (most likely) and that the business community will shrug and continue on as usual.
The lesson they have learned is go ahead, keep crushing, as long as there isn’t a blood bath, nobody cares if Hong Kongers scream.
Article 158 is very clear that the CFA must seek an interpretation. The interpretation was peripheral to the earlier two being dumped, but is central to the judgement on the recent four. But the CFA never asked for the interpretation, and so the interpretation’s invalid. Hence so too are Thomas Au’s findings.
Article 158 also says that interpretations are not to have retrospective effect, but Thomas Au backdates the interpretation to 1 July 1997 (para 22). Also invalid.
Jason’s article missed both of these points, as did counsel for the four. And maybe I’m wrong (although the English in Article 158 is plain.) But contesting the judgement on these grounds would seem to me to be worth a try. The worst that can happen is that Article 158 gets re-written such that the NPCSC can interpret anytime with retrospective effect – which is exactly what’s just happened. So there’s nothing to lose, but it would at least prove the CCP and our own government to be liars.
A Song for Today
Oh, the weather outside is awful
And the Democrats are unlawful;
But since it’s pouring again
Let it rain, let it rain, let it rain!
Oh, hear the thunder peeling
And see the judges kneeling;
Old laws gurgling down the drain.
Let it rain, let it rain, let it rain!
When I finally put on my coat
How I’ll hate going out in the wet;
But if you take away my vote
How stormy I will get!
Oh, the clouds are low and grey,
It’s such a dreary day;
Dangerous currents flow again.
Let it rain, let it rain, let it rain!
Oh, swear a new oath daily,
Umbrellas held up gaily,
Raindrops pelting us in vain!
Let it rain, let it rain, let it rain!
Au’s decision is like fining someone for parking yesterday on a double yellow line that was only painted today. Hopefully there will be wiser judges hearing the appeal.
Did the Pan-Dems expect no reaction to Baggy Pants Leung and his girlfriend’s stunt? Did they seriously think that a hyper sensitive authoritarian regime would sit back and allow itself to be insulted? Wiser heads should have prevailed.
@ Chris Maden, I’m afraid you’re wrong.
Article 158 vests the power of interpretation of the BL in the NPCSC with no stated limitation. Later clauses limit the CFA’s jurisdiction when interpreting the BL, but do not affect the NPCSC’s jurisdiction. The NPCSC has a free-standing power to interpret the BL as and when it pleases.
Article 158 does not preclude an interpretation having retrospective effect, it simply provides that judgments previously rendered shall not be affected. There was no previous judgment as to the eligibility of the lawmakers’ oaths. It matters not that the oaths were spoken before the interpretation was made.
IMO the real legal issue is that the NPCSC’s “interpretation” on oaths went far beyond explaining the meaning of the BL text: it added a bunch of new requirements, making it effectively an “amendment”. Amendment of the BL is governed by Article 159 and, in short, it’s beyond the powers of the NPCSC.
(I haven’t read the linked article which may have made the same point.)
Obviously though we’ve passed well beyond the legal niceties – from here it’s realpolitik all the way down.
What the pan-dems should do is to quit collectively and refuse to join any by-elections. And, instead of arranging marches, they should become vocal in support of a mass emigration. They should set up street stations, offices and other public events to offer tips on best emigration locations and methods for people with different financial capabilities. They can even help the poor to start crowdfunding events, or say something like “for every 10 dollars you donate to our party, one will go to the disadvantaged who needs to emigrate”. Watch how the Hong Kong government and Bejing react.
@ Wanchai Dreamer
isn’t this what they want? Have all the locals move out and then flood the place with (more) mainlanders?
@ Late to the Party
They can have what they want but this will embarrass them greatly. Citizens of a “strong country” moving out like refugees?
Meanwhile everybody, including the naive, will see the Legco is merely a rubber stamp, with or without the dems. To be honest, what the dems have managed to achieve so far have been less than impressive in my opinion, and their existence there will only justify the Legco and draw attention to its discussions.
After they leave, nobody will care about what bills are passed but a lot of attention will turn to what they are doing outside the Legco, assuming they are smart enough to think of things to do that are more interesting than the yes-man games inside the council. And the government will no longer have the excuse that pro-dems are stalling Hong Kong’s progress if it still screws things up.
We need to tell Beijing we are not playing your game anymore. We play our own game.
“The Pro-Dems need to unite under a single party and elect a popular leader who supports one country two systems. Don’t cross that red line. Win back your seats and play grown up politics”
Wasn’t this basically what they did pre-2014? They even let Albert Ho run. Why didn’t that work?
Honestly, I think Wanchai Dreamer sort of has it right — if the Pan Dems had any gumption at all they would resign en masse and either boycott all further elections (and encourage their voters to do the same), or perhaps more subversively, run someone new in every election and by-election who if elected then refuses to take the oath properly.
It’s clear that the heavily rigged game that is LegCo isn’t rigged enough for Beijing, and that Hongkongers’ opinions on anything to do with their city are now to be filed under “ignore and sideline”. Perhaps it is time for Hongkongers to reciprocate, by ignoring and sidelining the government in return: start slowly, boycotting government-organised events like fireworks displays, New Year fairs & carnivals, book fairs, sporting events; false reports of bribery to the ICAC; threatening phone calls to government officials; overwhelming government websites by filling in forms and submitting them hundreds of times and the like; then work your way up to mass civil disobedience: non-payment of taxes or submitting returns, rates, fines, rent, stamp duty etc… refusing to turn up to court when summoned.
If they really wanted to embarrass the PRC, they should form the Chinese Communist Party, and call immediately for the overthrow of the colonial oppressors from Beijing as being bourgeoisie and capitalist elitists. Then sit back and watch as the Chinese Communist Party tries desperately to figure out a way to legally ban the Chinese Communist Party without legally banning the Chinese Communist Party. Even if they succeeded, the headlines and government soundbites would be brutally and hilariously embarrassing.
Lovely ditty, Knownot; l sang it with pleasure.
One small quibble.
Thunder peals; it doesn’t peel.
Some excellent comments today, except, of course, the second.