Hong Kong's Great Leap Backward on Political Rights

February 1, 2018 1:00PM EST

By Maya Wang

Agnes Chow speaks at a rally after she was banned from running in the upcoming by-elections in Hong Kong, January 28, 2018. © 2018 Bobby Yip/Reuters

If you were tasked with organizing an election that looked democratic, but actually ensured that your side had the upper hand, how would you do it? You would find ways to restrict who could run, who could vote, and what they could vote for.

This week, Hong Kong authorities – having refused for years to budge on the issues of who could vote and what people could vote for in the selection of Hong Kong's top official, the chief executive – took a massive step backward. They decided to restrict who could run by disqualifying the Demosisto party candidate Agnes Chow and the Community Network Union's Ventus Lau in the upcoming Legislative Council by-elections.

Three years ago, during the Umbrella Movement, tens of thousands of people in Hong Kong called for universal suffrage in the selection of the chief executive. The Beijing and Hong Kong governments have failed to deliver this promise, guaranteed by the Basic Law. And they have targeted Hong Kong's semi-democratic Legislative Council (LegCo), an essential, high-profile platform for pro-democracy leaders in a city increasingly gagged by censorship of the media.

Beginning in 2016, authorities have disqualified pro-democracy figures from running for seats on LegCo or unseated them after they were elected.

In 2016, the Hong Kong Electoral Affairs Commission (EAC) added a new requirement that all candidates wishing to run for the Legco must fill out a "confirmation form," in which candidates affirm that Hong Kong is an inalienable part of China, a requirement that infringes on the right to peaceful expression. Two pro-democracy candidates – Edward Leung of Hong Kong Indigenous and Andy Chan of the Hong Kong National Party – were disqualified because their pro-independence stances were deemed "incompatible with the Basic Law."

Following the 2016 LegCo elections, in which a number of outspoken pro-democracy candidates won, Beijing intervened. It issued an "interpretation" of the Basic Law that compelled the Hong Kong courts to disqualify two legislators who explicitly advocated independence for Hong Kong. That court decision later led to the disqualification of four more pro-democracy legislators.

The authorities' disqualification of Chow is doubly problematic. Not only does it penalize her right to free expression, but it also suggests a harder government line against even those who merely advocate for "self-determination" – the idea that Hong Kong people should make decisions about Hong Kong's political status and socio-economic developments, a concept that is "completely different from advocating independence," according to Chow.

The grounds for disqualifying Lau are even more dubious. The EAC told Lau – who publicly advocated independence in 2016 – that he was not "sincere" when he abandoned this stance by December. The officer cited Lau's three Facebook posts, and alleged that Lau had portrayed himself as a successor to pro-independence figures Edward Leung and Baggio Leung and that Lau had obtained Baggio Leung's endorsement. To bar anyone from running in elections purely because of their peaceful political views is a violation of their basic human rights to stand for elections, which is guaranteed under the Basic Law.

The EAC is a statutory body whose decisions are required to be "independent, impartial and apolitical." Yet Secretary for Justice Teresa Cheng, a political appointee, has openly acknowledged her personal involvement in the decision regarding Chow's candidacy. Electoral authorities have given no explanation as to why Chow's party's platform is not in line with the Basic Law. And in Lau's case, it is deeply disturbing that an EAC officer claimed to judge a candidate's fitness to run not only by his political stance but also by his deemed sincerity. That other pro-democracy candidates who did not sign the "confirmation form" are being allowed to run deepens the arbitrary nature of the Chow and Lau decisions.

It is unclear whether Chow and Lau intend to appeal the decision in the courts, but the court has yet to hand down a decision on challenges filed by Leung and Chan over one year ago. Pro-democracy candidates are wondering where they stand vis-à-vis Beijing and the Hong Kong government's acceptability barometer, which will likely further chill expression.

Chow's disqualification also means that not a single member of any of the political groups that grew out of the Umbrella Movement – mostly made up of young people – has been able to stand for LegCo election or represent voters once elected. Hong Kong authorities are not only violating fundamental rights, but they also risk alienating large swathes of the population that support such voices.

Hong Kong authorities have the essential laws to resist being forced to do Beijing's bidding. That they won't enforce them to protect Hong Kong people's rights is an alarming development.

Link to original story on HRW website