Lawyers slam decision to bar Hong Kong independence candidates from elections

2016-08-03

Edward Leung (C) of the localist group Hong Kong Indigenous speaks to reporters after the Electoral Affairs Commission disqualified him from running as a candidate in the Legislative Council election in Hong Kong, Aug. 2, 2016. EyePress News

The banning of a pro-independence candidates from running in forthcoming elections to Hong Kong's legislature has sparked an outcry in the former British colony, with lawyers and political commentators saying the move is likely unconstitutional.

Hong Kong law professor Benny Tai, who was one of the original instigators of the 2014 Occupy Central pro-democracy movement in Hong Kong, told a media discussion show that he believes the decision to "weed out" candidates with pro-independence views is in breach of the city's mini-constitution, the Basic Law.

"Article 79, clause 7 of the Basic Law stipulates how candidates who break their oath of allegiance may be dealt with," Tai told the City Forum show.

"There are already provisions within the Basic Law for how to deal with legislators who don't uphold the Basic Law, but now it seems we have belt and braces," Tai said. "I think this may even run counter to the spirit of the Basic Law."

Edward Leung of the localist group Hong Kong Indigenous was denied permission to run as a candidate in the September 4 elections to the Legislative Council (LegCo) by the Electoral Affairs Commission (EAC) despite having signed a controversial declaration accepting that Hong Kong is ruled by China and distancing himself from previous pro-independence comments in the media.

He told RFA on Tuesday: "I don't think that Hong Kong will ever see full democracy while it is ruled by the Chinese Communist Party. I think the [official's] response shows that one day you have the Basic Law, and the next day I can have my political right to stand as a candidate stripped away, because they say I'm not genuine about upholding the Basic Law."

"Election officials shouldn't have political opinions; that is clearly inscribed in law," he said. "This is a corrupt, rigged election."

Little basis in law

Leading constitutional expert Johannes Chan, a law professor at the University of Hong Kong, said the decision to ban Leung from standing as a candidate in the September 4 elections to LegCo has little basis in law.

Leung should not be deprived of his right to run in the Legislative Council election next month, because he had signed a controversial declaration required by EAC for candidacy, Chan told the Hong Kong Economic Journal.

Chan agreed that election officials have no right to make their own judgment and question Leung's stance after he signed a declaration that he would to uphold the city's mini-constitution, the Basic Law, and accept Beijing's sovereignty over Hong Kong.

Chan's colleague Eric Cheung agreed, saying that election officials should base their decision only on whether or not a candidate has fulfilled all the requirements for running in the election, which Leung had done.

Leung has vowed to issue a legal challenge to the decision on Sept. 5, a day after the LegCo election. He has also said the only option left is "revolution."

Meanwhile, the paper's political columnist Wong On-yin accused the ruling Chinese Communist Party of "rough and reckless" measures aimed at depriving separatist candidates of their right to stand for election.

"It took only a few months for the pro-independence discourse to become a mainstream topic from being a taboo subject," Wong said, citing a recent opinion survey that showed two out of five young people in Hong Kong are in favor of secession from China.

"These [measures] could backfire," Wong wrote, warning that it could tip the restive city into violent confrontation.

"Throughout history, revolutions have followed a certain pattern: Action escalates between the oppressor and the oppressed, turning into sporadic clashes and finally widespread, bloody violence," he said.

"Hong Kong is increasingly going down that path," he said.

Wong warned that a "showdown" between Hong Kong and the Chinese government is likely already in the making, more prolonged and violent than the 2014 pro-democracy movement.

Color revolutions

Beijing's official rhetoric is doing little to dispel such fears.

China's top prosecution agency published an online video at the weekend, warning of the dangers of "color revolutions" and mass uprisings, featuring Occupy Central student leader Joshua Wong as a U.S.-backed instigator of such movements.

The 19-year-old Wong, who made his name opposing the imposition of Beijing's "patriotic education" program in Hong Kong's schools at the age of 15, appears in the video alongside a caption that reads "American-led Western power."

The video contrasts images of a strong and stable China with images of dying or beleaguered refugees from Central Asia, the Middle East and Eastern Europe.

Citizens are warned to beware of dissidents, especially those from Hong Kong, Taiwan, Tibet and Xinjiang, seeking to "damage China's internal stability and harmony by hook or by crook. Behind all these incidents, we can often catch a glimpse of the dark shadow of the Stars and Stripes," the commentary says, in a reference to the American flag.

Wong said on his Facebook page that he viewed the video statements as a joke and had not advocated independence for Hong Kong.

Wong was found guilty by a Hong Kong court on July 21 for unlawful assembly related to the 79-day civil disobedience movement, which called for fully democratic elections in 2017.

Under the terms of the 1997 handover to China, Hong Kong was promised a high degree of autonomy, the continuation of its existing freedoms for 50 years, and progress towards universal suffrage.

But Beijing's proposals to vet all candidates while allowing all seven million voters a vote each were slammed by campaigners as "fake universal suffrage." The plan was rejected in LegCo in 2015, and the existing voting system has remained in place.

Reported by Lam Kwok-lap for RFA's Cantonese Service, and by Chen Pan for the Mandarin Service. Translated and written in English by Luisetta Mudie.

Link to original story on RFA website