A hero can never be disqualified
Updated: Jun 25, 2020
Hong Kong is currently considered the frontline of a battle, however, this is an understatement. There is far more than one battle taking place in the city: it's between rich and poor, the lawful and the lawless, communists and capitalists, good and evil, liberals and authoritarians, right and wrong, democrats and fascists, the past and the future, nationalists and localists, the stubborn and the persistent, ....and so on.
Increasingly, all of us in Hong Kong (HK) are being required to bend our knees, to bow down, to kowtow, to concede to the will of the Chinese Communist Party (CCP).
While the world is preoccupied with a fight against the COVID-19 pandemic, the CCP has been tightening its political grip on all aspects of Hong Kong’s civil society. An article published in The Diplomat highlights three different strategies Beijing could adopt to enact Article 23 insidiously or under disguise to avoid backlash from the international community, while continuing to reap benefits from the city’s globally recognized special status. This seems to be part of Beijing’s brinkmanship to "Hollow out HK" and bring HK protesters and their supporters to their knees while moving the city closer to authoritarianism.
WTPOHK think it's important to know who your enemies are and the strategies they use to attack you and your allies, especially that favourite ploy of so-called 'pro-establishment' and 'pro-Beijing' lawmakers - 'DISQUALIFICATION'.
(Truth is many of our opponents in government are just looking after themselves first and foremost.)
Disqualification is such a dirty word - it makes us think of despicable cheats like those who take performance enhancing drugs, poor sports who break the rules or those so desperate to win they rig the game to improve their chances. In the case of Hong Kong (HK) however, rather than be apologetic and withdraw in disgrace for our side's supposed misdemeanour, we should have contempt for those in authority who act to disqualify our heroes!
God knows, those "in authority" frequently act without proper authority, and are no more deserving of their power or righteousness than we are.
It has to be said that the intervention in electoral processes witnessed in HK, undermine both the foundations of democracy in the city, its rule of law, and the independence of the judiciary. After all, under The Universal Declaration of Human Rights (UDHR) it is the will of the people that is the basis of the authority of government.
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The Legislative Council members' oath-taking controversy was a series of events surrounding the oaths of office of a dozen pro-democracy and localist members-elect of the Legislative Council of Hong Kong (LegCo) that began on 12 October 2016. On that day the pro-democracy politician's ploy, since 2004, of using the oath-taking ceremonies at each inaugural meeting as a platform of protest by holding objects or shouting slogans resulted in the disqualification of six members: Sixtus "Baggio" Leung and Yau Wai-ching of Youngspiration, who were unseated by the court on 15 November 2016, and Leung Kwok-hung, Nathan Law ,Yiu Chung-yim and Lau Siu-lai on 14 July 2017. All were deemed to have not taken their oath using the prescribed wording, solemnly and in the appropriate manner.
Whether the behaviour of the named "more radical" pro-democracy lawmakers was appropriate or not hardly seems relevant, as heroes and freedom fighters they were always going to be the government's targets. Summarising the series of legal challenges, claims and counter-claims made by the opposing lawmakers in just one paragraph doesn't really do the whole business justice. The importance of the disqualification to the pro-democracy faction of LegCo, was that it altered the balance of power in Legco, impacting the subsequent passage, discussion and voting on government legislation.
While the removal of some pan-democratic lawmakers from LegCo may have partly crippled the democratic bloc, the disqualification was by no means the end of the battle. The unseating orchestrated by the administration of C.E. Leung Chun-ying may have just created more of a headache for the next CE of HK, Carrie Lam Cheng Yuet-ngor. Despite being removed from office, "Long Hair" Leung Kwok-hung" famously went on record to say "Tomorrow is another day". The puppets of the Chinese Communist Party (CCP) in HK's LegCo need to realise that you can never disqualify the sacrifice of a true hero - like martyrs, their spirit lives on to fight another day!
CHALLENGING THE RETURNING OFFICER
26 July 2016
Three pro-independence and radical pan-democrat candidates yesterday filed a judicial review at High Court challenging the Electoral Affairs Commission for misinterpreting the law when it included an extra confirmation form for candidates in September's Legislative Council elections. The new election measure requires candidates to sign a declaration that they will uphold the Basic Law, which is seen as a means to disqualify pro-independence candidates.
One of the plaintiffs, Edward Leung Tin-kei had received an e-mail from the returning officer asking whether he will strive for independence of HK even though he has pledged allegiance. "It amounted to political screening and misinterpretation of the law," Leung said.
"According to the ordinance, the returning officer does not have the right to impose political censorship on me. They do not have the right to issue a confirmation letter for all candidates." The Standard
3 August 2016
The role of returning officers was challenged in a joint statement by all 30 legal sub-sector members of the 1,200-strong Election Committee, which is responsible for choosing HK's CE. Among them – all members or supporters of the pan-democratic camp – are former Bar Association chairmen Edward Chan King-sang SC and Philip Dykes SC.
Section 40 of the Legislative Council Ordinance only requires a candidate to sign a declaration stating that he or she will uphold the Basic Law, they wrote in the statement issued yesterday.
“[The ordinance] does not give the returning officer any power to inquire into the so-called genuineness of the candidates’ declarations, let alone making a subjective and political decision to disqualify a candidate without following any due process on the purported ground that the candidate will not genuinely uphold the Basic Law.”
In reply, Secretary for Justice Rimsky Yuen Kwok-keung said officers did have the power to consider some evidence – as they had done in the past. He did not specify any past cases. HKFP
3 September 2019
Agnes Chow who was barred from running in elections to HK's legislature on political grounds has won an appeal against the administrative decision. Former 2014 student protest leader Chow, now a member of the political party Demosisto, was disqualified from running in a LegCo by-election in March 2018 because her political views were judged to be pro-independence. The returning officer cited that Demosisto had previously called for self-determination for the people of Hong Kong, which pro-Beijing politicians have said is tantamount to advocating independence. A High Court judge ruled on Monday that the election officer had failed to give Chow a fair opportunity to respond to the claim that she was incapable of upholding Hong Kong's mini-constitution, the Basic Law, because of Demosisto's political platform. RadioFreeAsia
29 October 2019
Democracy activist Joshua Wong alleges electoral interference after he is barred from running in November's District Council Election by the Returning officer. He is said to have challenged Chinese sovereignty over HK. 23year old Wong and his party, Demosisto, have denied supporting independence for the city. They advocate self-determination and a referendum for HK people to decide how they want to be governed. Washington Post, The Telegraph, Wall Street Journal
18 December 2019
Two Hong Kong pro-democracy lawmakers were officially unseated on Tuesday when the city’s most senior judges refused to let them challenge lower court rulings that declared their elections invalid. The Court of Final Appeal upheld the decision that Au Nok-hin and Gary Fan Kwok-wai were not duly elected because of the bungled disqualification of two other candidates ahead of the contest. Those two candidates Agnes Chow Ting and Ventus Lau Wing-hong, also from the pan-democratic camp, had both complained in election petitions that they were not given an opportunity to respond after the returning officers barred them on the grounds of their stance on self-determination for the city. intellasia
7 May 2020
Ousted pro-democracy lawmaker Lau Siu-lai filed an election petition on Thursday to try to overturn the results of the 2018 Legco by-election for the Kowloon West constituency.
An election official had barred Lau from running for the seat that she herself had vacated after she was disqualified in 2017 for improper oath-taking.
The returning officer had ruled that she had not genuinely changed her previous stance advocating “democratic self-determination” for Hong Kong.
But Lau’s lawyer, Senior Counsel Paul Shieh, told the High Court that the election ban was unreasonable, because she was denied any chance to explain her political views. RTHK
11 May 2020
Ousted HK pro-democracy legislator Lau Siu-lai challenged an electoral officer’s decision to bar her from running in the 2018 Legislative Council Kowloon West by-election last Thursday. In October 2018, Returning Officer Franco Kwok Wai-fun said Lau’s by-election nomination was invalid, arguing that she had backed calls for self-determination and thus would not genuinely uphold the Basic Law.
During the High Court hearing last Thursday, Lau’s counsel Paul Shieh argued that a person’s political standpoint was subject to change, but the returning officer never enquired as to whether Lau’s stance had evolved. Shieh also cited another ousted legislator Edward Yiu, who was allowed to enter the by-election after clarifying his stance with the officer.
RESISTANCE IN THE LEGCO HOUSE COMMITTEE
14 April 2020
The Hong Kong and Macau Affairs Office (HKMAO) and Hong Kong Liaison Office issued two strongly worded statements blaming opposition lawmakers for deliberately stalling the election of the chairperson of the Legislative Council House Committee. Beijing warned that Hong Kong’s pro-democracy lawmakers who use “malicious filibustering” to paralyse the legislature could be in violation of their oaths and guilty of misconduct in public office. HKFP
22 April 2020
"Civic Party lawmaker Dennis Kwok has said that he expects to be ousted from the Legislative Council, after he was repeatedly attacked by Beijing who claimed he was violating his oath and guilty of misconduct in public office." HKFP
22 May 2020
"The [national security] legislation also threatens to throw the Legislative Council elections scheduled for September into chaos. Recent court rulings, including one delivered on Thursday, have largely thrown out Beijing’s past disqualifications of elected legislators. The district council elections last November in which the pro-democracy camp secured a landslide victory also only saw one candidate, high-profile activist Joshua Wong, barred from standing. The announcement is an indication that mass disqualifications of pro-democracy candidates are very much back in the cards, dashing hopes of a broadly free and fair election." Foreign Policy
THREATS AND INTIMIDATION
26 October 2018
"There is a growing need to legislate for Article 23 of the Basic Law to safeguard national security following a string of recent incidents, said Tam Yiu-chung, a Hong Kong member of the Standing Committee of the National People's Congress.
He was referring to the banning of the "Hong Kong National Party" which openly advocates Hong Kong independence, the rejected visa renewal of a foreign journalist and the disqualification of a self-determinist activist from next month's Legislative Council by-election. ChinaDaily
3 June 2020
"Federation of Trade Unions lawmaker Alice Mak said on Wednesday that election officials will have to consider whether people who have expressed opposition to Hong Kong's upcoming national security law should be disqualified from standing in the city's polls. She said while this is a matter for returning officers to decide, it would be a reasonable conclusion to reach that anyone who doesn't support the legislation would also fail to support the Basic Law." RTHK
3 June 2020
Pro-democracy lawmakers said on Wednesday that a call for all those who oppose the future national security legislation to be barred from running in September's Legco elections is an attempt by Beijing to wipe out the entire opposition camp in HK. Democratic Party legislator Lam Cheuk-ting expressed outrage over remarks made by HK's sole member on the National People's Congress Standing Committee, Tam Yiu-chung, accusing him of trying to intimidate serving lawmakers and future election candidates, and seeking to have the whole pro-democracy camp disqualified from the next Legco polls. Lam also accused Tam of breaking the law with his disqualification call. The lawmaker cited Article 73 of the Basic Law which says the power to enact laws lies with Legco, and section 19 of the Powers and Privileges Ordinance which states it is an offence punishable by a custodial sentence to "endeavour to compel any member by force or menace to declare himself in favour of or against any motion or matter pending before the council or a committee". RTHK, Rayfield Review
4 June 2020
HK's sole member on the National People's Congress Standing Committee, Tam Yiu-chung, reiterated today that he believes opponents of the city's future national security legislation must be banned from running in September's Legco elections.
Speaking on an RTHK radio program today, Tam said the Basic Law makes clear the importance of upholding national security and therefore anyone who rejects the new legislation would fail to uphold the city's mini constitution. But he added that this is only his personal view, and he is not speaking on behalf of Beijing or the SAR government, although he said a lot of lawmakers and people in society agree with him.
He said that in the end, whether or not a would-be election candidate is to be disqualified will be up to a returning officer to decide. The Standard, RTHK
4 June 2020
HK’s democrats have slammed pro-Beijing figure Tam Yiu-chung for making a “blatant threat,” after he suggested that lawmakers and candidates who oppose China’s plan to promulgate national security legislation in the city should be disqualified. In an article published in Bauhinia Magazine on Monday, Tam hailed the resolution – put forward by China’s parliament – to punish secession, subversion, terrorism and foreign interference in HK as a “constitutional, legal, reasonable and timely ” decision.
Democratic Party lawmaker Lam Cheuk-ting said on Tuesday that he was “extremely infuriated” by Tam’s remark. He accused Tam of breaching Article 73 of the Basic Law, which stipulates that the Legislative Council has the power to enact, amend or repeal laws. Members of the legislature can have their own stance and freedom to decide their voting intentions.“This is blatantly threatening current lawmakers and future candidates of the pro-democracy camp… trying to force them to kneel down to the pressure,” Lam said, adding that democrats would not back down. HKFP
5 June 2020
The last British governor of HK, Chris Patten, criticized the Chinese government on Friday over its national security legislation proposed for the SAR. Patten said the security legislation is unnecessary because Hong Kong’s legal code already includes provisions to combat terrorism, financial crimes and other threats to security. “What Beijing wants is something which deals with those rather worrying Orwellian crimes like sedition, whatever that may be,” Patten said. China may also be seeking grounds to disqualify opposition candidates from running in September’s election for the local legislature by accusing them of being disloyal, he said. Beijing has ignored promises that Hong Kong could democratize of its own accord after the handover, Patten said. The US should unite with other democratic countries to oppose underhanded tactics by Beijing, he said. ArabNews, Skagit Valley Herald
6 June 2020
"District Councillors demand security law withdrawal" In a joint meeting the majority (17/18) of District Councils voted to reject the CCP's NPC's new National Security legislation. This means that under international law and HK's Constitution the Will of the people of HK is the the imposition of National Security laws by Central government in Beijing is rejected outright! RTHK
Since HK has officially rejected the new national security legislation, any decision by NPC going forward to invoke a new national security law in HK is now illegal and invalid.
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We suggest to HK people and to our readers: please do NOT be waylaid by CCP's distraction tactics! Know and see their real face always!
Overriding the disqualifications, and the underhand manipulation of our democratic processes, under HK's Constitution, the Joint Declaration, since 1 July 1997 handover the Legislative Council has always been illegal. Quite simply, and undeniably, China has been in anticipatory breach of the Joint Declaration since 1 July 1997.
Currently elections for The District Council are the ONLY "periodic and genuine elections" held in HK by the required "universal and equal suffrage" (see our blogs on the 2019 District Council election results here and here). The last election result is therefore effectively the most recent referendum representing the will of Hongkongers.
WTPOHK once again urge our lawmakers and citizens to recognise the value in a further formal referendum of HK voters. A referendum of HK people is needed to gauge agreement on the action going forwards, and to then carry the results of this ballot out (see our blog "Shaping a referendum for Hong Kong". This is the only way for China and HK government to return to legitimacy under the Joint Declaration, HK's true Constitution. It's the political solution that will chart the way forward for our city, our home, its prosperity and its stability.
In conclusion, a properly conceived and run referendum would be looked upon favourably by the international community, and would provide a platform for people of any faction to voice their legitimate opinions. Dispensing with the nonsense of disqualifying candidates and lawmakers for their dissenting views will allow more open and transparent debate, and strengthen our democracy. Ultimately we must ALL observe the fundamental principles of The Universal Declaration of Human Rights, recognising that the basis of the authority of government in HK stems from the will of its people.
The Silent and the Silenced - How dissent in Hong Kong is hushed. (Blog)
HK Executive Council - bent rulers - The CE's cabinet are good for nothing! (Blog)
In Hong Kong absolute power absolutely corrupts! - The CCP is ruining HK (Blog)
Coming to our senses - HK's September Elections (Blog)
CCP's illegal annexation of Hong Kong - The legal term to describe the CCP invasion
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10 June 2020, "The High Court on Wednesday rejected a legal challenge over a ban on people sentenced to jail terms of three months or more, from running for public office for five years. The judicial review was lodged by League of Social Democrats chairman Raphael Wong, who is barred from running in elections until 2024 after he was jailed for eight months over incitement charges last year, relating to the Occupy protests of 2014." RTHK
13 June 2020, RTHK 'New law won't be used to ban election hopefuls'
Former Legco president Tsang Yok-sing said on Saturday that he does not think Beijing is aiming to use its national security law for Hong Kong to disqualify election candidates....He said those deemed unsuitable can already be disqualified from the city's elections and anyone breaching the security law will be prosecuted, so there will be no need to screen them out of polls.