An oppressive ruling by the National People’s Congress Standing Committee — aided by a compliant Hong Kong judge — has silenced champions of democracy.
- By Suzanne SatalineSuzanne Sataline is a writer based in Hong Kong.
On Oct. 12, 2016, new lawmaker Edward Yiu Chung-yim stepped onto the floor of Hong Kong’s modern legislative chambers and entered a tempest. A professor and surveyor by training, Yiu squeaked past his sitting opponent and joined a rush of new politicians swept into office by hundreds of thousands of voters who demanded a democratic Hong Kong.
On July 14, a High Court judge tossed Yiu and three other colleagues from the Legislative Council. They joined two lawmakers expelled late last year. Their crime wasn’t corruption, dereliction of duty, or ethical breaches, but using the wrong words, at the wrong time. When the city court disbarred the lawmakers, it helped Beijing to tamp down the boisterous territory, chill free speech, and temper the autonomy of the city’s government — rights that Hong Kongers have fought hard to preserve for a promised 50 years, and ones that mainland China conspicuously lacks. Most worrisome, the new ruling splinters the legal barrier between the region and the mainland. If this precedent is followed, the principle of “one country, two systems,” which has sheltered Hong Kongers from mainland’s storms, has effectively collapsed.
Yiu is a gangly man in his early 50s, with a cockeyed smile. He’s determined, but certainly not one of the city’s firebrands. To mark his induction, he decided while being sworn in to follow the informal tradition among lawmakers and voice a political message along with the official oath of allegiance. He read a vow from his phone that he would “protect the justice system in Hong Kong, fight for true democracy, and serve Hong Kong for its sustainable development.” The clerk noted that he had deviated from the prescribed script and gave Yiu another chance. Still not satisfied, the Legislative Council president had Yiu recite the pledge once more, a week later, and declared that the new member could take his seat.
Yiu’s comments were more anodyne than those made that day by several of his colleagues who condemned Beijing directly and with force. Incumbent Leung Kwok-hung called for universal suffrage. Newcomer Lau Siu-lai vowed to “blaze a trail to democratic self-determination,” speaking so slowly that the exercise took 10 minutes. (She wrote later that she wanted to show the meaninglessness of the oath.) The chamber’s youngest-ever lawmaker, Nathan Law, cried that he was not “subjugating myself under the totalitarian authority … and will absolutely not bear allegiance to a political administration which brutally killed its people.” In reviewing these oaths, High Court Justice Thomas Au found that the added sentences, use of props, speed and manner of certain deliveries, and even Law’s inflection of the word “nation,” would give a “reasonable impression” that each lawmaker had declined to take the oath.
For more than a year, many Hong Kongers debated the quixotic notion of their city as an autonomous, or even independent, entity from China. Yiu doesn’t support independence, but believes in a democratic Hong Kong, where local rights are guaranteed, as set down when Britain relinquished the former colony to China. Independence talk makes Beijing furious and officials repeatedly ordered that “separatist” demands cease.
Though unintended, the oaths gave the government ammunition needed to censor the city’s independence crowd, and neuter opponents of Chief Executive Leung Chun-ying. Leung, who, ended his sole term on June 30, dutifully carried out Beijing’s command when he asked a Hong Kong court to remove the lawmakers.
The July 14 ruling galled Hong Kong residents, politicians, and legal scholars. For voters, the ruling sundered the one slim victory from the 2014 Umbrella Revolution, a 79-day occupation to win democracy; supporters last fall backed those four candidates who had joined the free elections fight. The legislature’s democracy bloc has now lost enough votes to cancel its filibuster power, a tactic that halted bills and plans by the government and pro-Beijing backers.
The long-term consequences, though, are far more serious. To disqualify the officials, the judge used subjective measures — word choice, degree of solemnity, even a word’s rising tone — particulars not specified in Hong Kong’s ordinances or in its constitution, the Basic Law. In the ruling, the court found that judging by the member’s conduct and actions, each had declined to take the oath and had violated the “solemnity requirement.”
Neither the city’s constitution, nor its ordinances, specifies such a standard. To make its argument, the 112-page ruling leans heavily on an extraordinary document issued in November by the National People’s Congress Standing Committee (NPCSC), China’s legislature. By leaning on a political order, the ruling sullied common law and allowed Beijing to use Hong Kong’s judiciary to control the city.
Most troubling is that the court silenced the voices of 185,000 voters and affirmed a tactic of revenge: Henceforth, freely elected candidates sworn into office can be disbarred through Leninist maneuvers. Some officials in Hong Kong insist that Hong Kong is still governed by an independent judicial system. The mainland’s NPCSC, though, has exercised its power to bend the constitution, amend the law, and make that binding in the territory.
“We still have rule of law in Hong Kong, but it is severely damaged,” said Eric Tat Ming Cheung, a law lecturer at the University of Hong Kong. “There is no longer any legal restraint on the exercise of power by Beijing in the Basic Law.… Now, you can see that there is no legal protection. It’s really up to Beijing to decide what follows. It can always interpret the Basic Law in such a way as to justify the legality of its actions.”
The biggest problem for jurists and Hong Kong democracy activists is that the NPCSC’s involvement, and its influence, is legal. Before Britain relinquished the colony to China in 1997, a committee agreed that Hong Kong’s constitution would give the NPCSC the power to interpret laws. If the Hong Kong courts needed advice, judges could appeal for help. Beijing has, on occasion, weighed in, unasked. Hong Kong, China’s courts ruled, is lawfully required to accept such interference.
The courts apparently did not request the November directive, although it was expected. Initially, Leung and his secretary for justice, Rimsky Yuen, asked a local court to ban two other lawmakers. During their oaths, Sixtus “Baggio” Leung and Yau Wai-ching, both believers in Hong Kong independence, swore their allegiance to “Hong Kong nation.” They referred to China in terms that even government opponents thought demeaned the nation and the office. The Legislative Council president declined to seat them, but allowed them a second chance. The court petition stopped that offer. Before the judge could rule, the NPCSC intervened. In the text and official interpretation that followed, Beijing imposed a loyalty test on Hong Kong officials. It barred independence backers from running for elective office, and muzzled secessionist talk in the Legislative Council chamber.
The ruling acts as an ex post facto law, allowing the courts to reach back in time and bar actions, without warning, that previously had been deemed lawful, says Ma Ngok, associate professor of political science at the Chinese University of Hong Kong. “It opens the floodgates,” says Ma. “This sets a precedent…. It opens a whole wide avenue for the government to do the same in the future — against the opposition in the legislature.”
July 14, the day the court ruled, already had a mournful cast. Dissident Liu Xiaobo, imprisoned in China for nine years for seeking democracy, had died the night before. One lawmaker noted that it was Bastille Day, a cruel mocking of Hong Kong’s democracy efforts. That night, Yiu and the three other newly deposed lawmakers joined a somber rally near the Legislative Council chambers, before a bleak courtyard rimmed with a high security fence. Police prowled about.
That gated plaza was where, in 2014, hundreds of students protested Beijing’s refusal, yet again, to grant free elections to Hong Kong. The sit-in ignited the Umbrella Revolution that drew tens of thousands of people to city streets. The banished lawmakers remembered Liu’s sacrifice and begged the few hundred gathered to vote out lawmakers loyal to Beijing. The crowd applauded — a polite, worn reply.
Michael Davis, an American law professor who taught for years at the University of Hong Kong, joined the crowd. “Right now, Beijing is using this path to get rid of political enemies in the legislative council,” he said the next day. When does the Beijing government go beyond that? When might the courts silence activists? Scholars? Residents? “When suddenly does what we saw last night become a crime?”
The courts may soon have another chance to exert Beijing’s will. A city resident has petitioned the High Court to disqualify two more lawmakers, Cheng Chung-tai, a university teaching fellow, and Eddie Chu, a popular activist who drew more than 84,000 votes in September’s election. In October, the men’s oaths were both accepted, and both punctuated with the stuff that dreams are built on. “Democratic self-determination!” Chu shouted then, and, “Die tyranny.”
Taken to an extreme, the court ruling could allow Beijing to alter the city’s constitution and tamper with fundamental values of Hong Kong society, as long as China’s officials do so in the guise of an interpretation, says the University of Hong Kong’s Cheung. That means the rights that make Hong Kong extraordinarily different from mainland China — free speech, free assembly, and a free press — are now much more fragile. Once the NPCSC intrudes on Basic Law, and sidesteps the open and lawful amendment process, “all those protections under Basic Law,” he says, “all go away.”
Hong Kong’s residents have always assumed that the courts would block Beijing’s intrusions. There’s no guarantee of that, now. If a judge demurs, Beijing can counter. “My fear is that left this way … it will lead to another interpretation that says our court has no power.” Then, Cheung says, one country, two systems “is over.”
Photo credit: ISAAC LAWRENCE/AFP/Getty Images