The Legislative Council by-election on Sunday will decide who fills four seats left empty by legislators-elect who were disqualified after taking their oaths of office improperly. Since China resumed the exercise of sovereignty over Hong Kong two decades ago all LegCo elections and by-elections were regarded as important indicators of the political situation in the special administrative region. Indeed they have served as weather vanes showing how the anti-mainland camp matched up against the patriotic side on the one hand and local voters’ (Hong Kong residents’) attitude toward major political issues of the day on the other.
The gap between the above-mentioned political camps in terms of LegCo seats has remained unchanged over the period; while the voting public’s attitude toward major political issues of the day varied. This time around, the LegCo by-election should give us a rough idea on how the majority of Hong Kong voters feel about the National People’s Congress Standing Committee’s interpretation of Article 104 of the Basic Law in November 2016. This is the first test of this nature we have ever encountered in LegCo elections and by-elections, period.
As widely reported by local and overseas media, the NPCSC issued its interpretation of Article 104 of the Basic Law of the HKSAR after several opposition lawmakers-elect revealed their separatist convictions while taking the LegCo oath, thus telling the whole world they would not swear allegiance to the HKSAR of the People’s Republic of China or the Basic Law. Their very public violation of relevant laws convinced the High Court to disqualify six of those politicians. And four of the LegCo seats they left open will be contested in the Sunday by-election.
In the interpretation of Article 104, the NPCSC makes it clear: “To uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China” and to bear “allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China”, as stipulated in Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the PRC, are not only the legal content which must be included in the oath prescribed by the article but also the legal requirements and preconditions for standing for election in respect of or taking up the public office specified in the article.
The High Court of the HKSAR, according to the said interpretation of Article 104 of the Basic Law by the NPCSC, disqualified six of the lawmakers-elect for their unlawful behavior upon swearing in. And there is no good reason for people to believe those politicians will have a change of heart anytime soon.
However, for some peculiar reason one of those disqualified former lawmakers-elect won permission to stand in the upcoming LegCo by-election. That means it is up to voters in his constituency to decide if he deserves a LegCo seat. And the result in a way may reflect the attitude of at least some members of Hong Kong society toward the NPCSC interpretation of Article 104 of the Basic Law.
There is a popular belief in Hong Kong that the judiciary should remain neutral and never succumb to political interference. That is a legitimate opinion on cases that do not concern Hong Kong’s constitutional status or the relationship between the HKSAR and the central government; otherwise it would seem intended to shield separatist causes such as “Hong Kong independence” and “self-determination” from justice and be completely unacceptable. The Basic Law stipulates in the very beginning that the HKSAR is an inalienable part of the PRC. Hong Kong is an administrative region of the PRC that enjoys a high degree of autonomy directly under the central government. Such is its constitutional status and the legal bottom line as well as political bottom line of the “one country, two systems” principle. The NPCSC’s interpretation of Article 104 of the Basic Law is meant to guide and assist the HKSAR in safeguarding the legal and political bottom line of the “one country, two systems” principle.
Some opposition candidates in the upcoming LegCo by-election still openly advocate “self-determination”. They insist “self determination” is not the same as “Hong Kong independence” but have failed to show any fundamental difference between the two. Since “self-determination” advocates demand the right to determine Hong Kong’s future after June 30, 2047 through a referendum, with “independence” as a legitimate option, they really cannot say they categorically reject separatism.
There is no denying most Hong Kong residents do not believe separatist causes, such as “Hong Kong independence” and “self-determination”, stand any chance of success but some are somehow sympathetic toward such pursuits. The result of the upcoming LegCo by-election would tell us, to some extent, whether Hong Kong society has achieved consensus on obliterating separatism for good.
(The author is a senior research fellow of China Everbright Holdings)
(Published on Page 11, China Daily Hong Kong Edition, March 9, 2018)